ISLAMABAD – A petition seeking a stay on the enforcement of an ordinance imposing 15 percent surcharge on income tax was filed in the Supreme Court on Friday. The petition was filed by Shahid Orakzai under Article 184(3), naming the federation through its law secretary as respondent.
The petitioner requested the court to declare the surcharge imposed on income tax through a presidential ordinance on March 15, 2011 as ultra vires of the constitution and the law, unless passed by the National Assembly. He further prayed the court to declare that the incumbent president had attempted to violate the constitution by signing the Income Tax (Amendment) Ordinance, 2011.
The court has been requested to restrain the respondent from taking any action under the impugned ordinance. The petitioner contended that the impugned ordinance was in direct conflict with the provisions of Article 89. He said the minimum life of an ordinance was 120 days and the effectiveness of the impugned ordinance was barely for 106 days.
Orakzai said all ordinances to be laid before the National Assembly under sub-clause (a)(i) of clause (2) of Article 89 can be further extended for another 120 days, the impugned ordinance denies that constitutional power to the National Assembly, which has the custody of federal consolidated fund.
The petitioner said the president had no power with regard to Money Bill under Article 75 and could not return such a bill to parliament for reconsideration. He said the president had the power to impose financial emergency for Pakistan or any part thereof by invoking Article 235. He said that the surcharge on income tax was a tax imposed by one person, Asif Ali Zardari, and no single citizen was empowered to tax the people of Pakistan.
He said that the imposition of 15 percent surcharge on income tax for all taxpayers in the country was illegal and unjustified, because the power of the National Assembly to levy a tax throughout Pakistan could not be exercised by the president through an ordinance. Orakzai said average members of the National Assembly did not know the related financial provisions of the constitution, thus the apex court was duty bound to interpret various provisions of the Income Tax Act, 2001.
He said the ordinance did not give any ground for the imposition of the surcharge nor did it give any title to justify the same in public. Orakzai said the action taken by the president made it clear that there had been a considerable shortfall in the revenues as estimated by the federal government in the last budget and instead of reforming General Sales Tax, it abandoned it midway because of little support in the National Assembly.
The impugned ordinance thus is a trick bypass by the coalition government as it did not have the required strength to follow the prescribed procedure in Articles 80 to 83.
