SC explains reasons behind restoration of mobile phone top-up taxes

  • Restoring taxes on mobile phone cards would help the) FBR in reaching nearer to its collection target during the current fiscal year.
  • During nine months of the ongoing fiscal year, the mobile card tax was one of the reasons behind the massive shortfall in tax collection.
  • Restoration of mobile phone top-up taxes will generate revenues.

The SC had neither recorded any reason nor did it determine that the imposition of such taxes was without jurisdiction in its June 11, 2018 order suspending the taxes.

This was observed by Justice QaziFaez Isa during the detailed verdict on mobile phone top-up tax deductions.

One of the members of a three-judge apex court bench, Justice Ijaz-ul-Ahsandiffered with the contentions of Justice Isa and said:

“The supreme court correctly exercised its authority under Article 184(3) of the Constitution since all conditions for invoking such powers were amply and adequately met in the case.”

On June 11, 2018, Chief Justice Mian Saqib Nisar had suspended the deduction of withholding tax, sales tax and service charges on mobile phone top-ups.

On public complaints, the former chief justice had initiated the case on May 3, 2018, relating to a high amount of taxes being deducted from the topping up of mobile phone balance through easy load and scratch cards.

Justice Isa explained why the Supreme Court had restored deduction of the taxes:

In his 13-page verdict, he explained that fundamental rights for the enforcement had already been conferred by Chapter I of Part II of the Constitution. But the verdict said the protection from taxation was not listed on any of these fundamental rights.

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The verdict said that the Supreme Court was generally slow in entertaining challenges to taxes imposed by the legislature with the provisions of the Constitution. However, it didn’t mean that a law imposing a tax could not be challenged.

Justice Ahsan observed that it was not necessary that a petition is filed before it.

“If the matter fell within the domain of Article 184(3) for involving a question of public importance, then the Constitution empowered the court to pass orders to protect such fundamental rights of the citizens,” he said.

It was irrelevant whether the violation related to a fiscal matter, taxation or a matter involving property rights, personal freedoms or human liberties, Justice Ahsan explained.

The Supreme Court should exercise its powers to come to the rescue of the citizen whose rights might be at risk of being destroyed by the state with all the might and resources available to it.

The power under Article 184(3) had been conferred on the court to protect the weak and the downtrodden that might not be able to hire expensive lawyers.

Thus Article 184(3) was meant to be exercised for protection of those who did not have the means to approach courts of law for the protection of rights guaranteed to them by the Constitution, he observed.

Failure or refusal to exercise the power in fit and appropriate cases was the violation of trust, Justice Ahsan warned.

He said that there were countless reported and unreported cases in which the court had exercised suomotu powers. Therefore, nothing turned on the fact that such powers were exercised upon an anonymous complaint.

Conclusion:

The mobile phone top-up taxes were one of the reasons behind the massive shortfall in tax collection during nine months of the current fiscal year. The Supreme Court’s decision of restoring taxes on mobile phone cards would help the Federal Board of Revenue (FBR) in reaching nearer to its collection target, the decision would help in generating revenues.

 

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