07-19-2011, 06:58 PM
<blockquote id="quote"><font size="1" face="Verdana, Arial, Helvetica, san" id="quote">quote<hr height="1" noshade id="quote"><i>Originally posted by Star</i>
<br />I understand your point of view and think you are right, company should keep continued followup of such matters.
I just want to update my knowledge, if after 60 days company files appeal, off course appeal will not be decided in a day or two. It will take time minimum 2 or 3 weeks to issue refund order afterall FBR guys would definately scrutinize company record.
In the instant case it is the company which would bear loss (receiving its cash late).
This is just like, BAAL KI KHAAL UTARNY WALI BAAT. Anyway, thanks dear.
Regards,
*
<hr height="1" noshade id="quote"></font id="quote"></blockquote id="quote">
Firstly I would like to share legal situation generally without reference to refund matter.
Under administrative law every citizen has right to file suit for damages against the unlawful act of statutory bodies in the civil court. Bar contained in s.227 of Income Tax Ordinance, 2001 does not prevent us to do so. As the remedy of award of damages is not provided by Special Law (i.e. ITO, 2001) so we may resort to civil court to claim damages. [PLD 1953 Lah 339]. Civil court may enterain the matter when certain act is not being done within four corners of ITO, 2001 or with mala fide intention or without jurisdiction.
"If any State functionary or functionary of a Local Government would take action in excess of his authority; and in consequence of that action a citizen was made to incur expenditure or suffer a loss, that citizen had remedy to recover damages from such functionary in accordance with the law."[2010 CLC 860] by Supreme Court of Pakistan
However, this practice of claiming damages is not prevalent in Pakistan because the amount of damages awarded is not attractive, the procedure of pursuing the matter in civil courts is so lengthy that people don't prefer rather not dare to adopt it.
Now coming to your specific query that can we claim damages for non grant of refund application within two months. In several laws the legislature has provided time period within which given matter is to be decided by executive or tribunal. However, the legislature has not provided any consequences or penalty for non-adherence to this time period. Hence the courts have declared that this time period is directory and not mandatory. It is a procedural matter but does not create substantial right in favor of applicant.
"Where inaction on the part of a public functionary within the prescribed limit was likely to affect the right of a citizen, the prescription of time was deemed directory ---Where a public functionary was empowered to create liability against a citizen only within the prescribed time , it was mandatory-" [2010 PTD 2670]
Even limit of making refund application within 2 years under s.170(2)(c) is held directory not mandatory. You may file application after two years also. "Belated claim of refund was not barred by time since time limit for issuance of refund was directory and not mandatory-"[2010 PTD 21]
We may pressurize the concerned officer to decide refund application through higher management or Ombudsman if he has not make decision within given time.
However, the question remains, if any person suffers loss owing to violation of directory provision of law, would he be entitled to claim damages for that.
I am unaware of any case law on this subject. It is my personal opinion and seems to me justifiable, that if the relevant authority has no cogent reason for not deciding the matter within time and other person does suffer loss for that delay which he successfully proves, then the damages should be awarded.
However, it is my personal opinion. Members are invited to share case law, foreign or national, on this point.
<br />I understand your point of view and think you are right, company should keep continued followup of such matters.
I just want to update my knowledge, if after 60 days company files appeal, off course appeal will not be decided in a day or two. It will take time minimum 2 or 3 weeks to issue refund order afterall FBR guys would definately scrutinize company record.
In the instant case it is the company which would bear loss (receiving its cash late).
This is just like, BAAL KI KHAAL UTARNY WALI BAAT. Anyway, thanks dear.
Regards,
*
<hr height="1" noshade id="quote"></font id="quote"></blockquote id="quote">
Firstly I would like to share legal situation generally without reference to refund matter.
Under administrative law every citizen has right to file suit for damages against the unlawful act of statutory bodies in the civil court. Bar contained in s.227 of Income Tax Ordinance, 2001 does not prevent us to do so. As the remedy of award of damages is not provided by Special Law (i.e. ITO, 2001) so we may resort to civil court to claim damages. [PLD 1953 Lah 339]. Civil court may enterain the matter when certain act is not being done within four corners of ITO, 2001 or with mala fide intention or without jurisdiction.
"If any State functionary or functionary of a Local Government would take action in excess of his authority; and in consequence of that action a citizen was made to incur expenditure or suffer a loss, that citizen had remedy to recover damages from such functionary in accordance with the law."[2010 CLC 860] by Supreme Court of Pakistan
However, this practice of claiming damages is not prevalent in Pakistan because the amount of damages awarded is not attractive, the procedure of pursuing the matter in civil courts is so lengthy that people don't prefer rather not dare to adopt it.
Now coming to your specific query that can we claim damages for non grant of refund application within two months. In several laws the legislature has provided time period within which given matter is to be decided by executive or tribunal. However, the legislature has not provided any consequences or penalty for non-adherence to this time period. Hence the courts have declared that this time period is directory and not mandatory. It is a procedural matter but does not create substantial right in favor of applicant.
"Where inaction on the part of a public functionary within the prescribed limit was likely to affect the right of a citizen, the prescription of time was deemed directory ---Where a public functionary was empowered to create liability against a citizen only within the prescribed time , it was mandatory-" [2010 PTD 2670]
Even limit of making refund application within 2 years under s.170(2)(c) is held directory not mandatory. You may file application after two years also. "Belated claim of refund was not barred by time since time limit for issuance of refund was directory and not mandatory-"[2010 PTD 21]
We may pressurize the concerned officer to decide refund application through higher management or Ombudsman if he has not make decision within given time.
However, the question remains, if any person suffers loss owing to violation of directory provision of law, would he be entitled to claim damages for that.
I am unaware of any case law on this subject. It is my personal opinion and seems to me justifiable, that if the relevant authority has no cogent reason for not deciding the matter within time and other person does suffer loss for that delay which he successfully proves, then the damages should be awarded.
However, it is my personal opinion. Members are invited to share case law, foreign or national, on this point.
