Tuesday September 27, 2022

Miftah Ismail slams govt’s proposal to allow FBR to arrest people

Former finance minister says the law would lead to the harassment of citizens

By Web Desk
June 20, 2021

Former finance minister Miftah Ismail slammed the PTI government’s proposal to grant powers to the Federal Board of Revenue (FBR)  to arrest people, warning that the law would lead to the harassment of citizens.

“FBR’s tax inspector has been given the right to arrest people. This will not increase revenue, rather FBR will harass people,” said Ismail, in a press conference about the budget. He also said that the FBR is yet to refund Rs700 billion to the people.

The PML-N leader claimed that to the credit of his party president Shahbaz Sharif, the PTI government “made a U-turn” on taxing baby milk and food items. He also claimed that the Imran Khan government has illegally allocated Rs292 billion for privatisation.

Ismail said that the government has earmarked Rs610 billion from the petroleum levy. He said that as per the calculation that would mean that there would be Rs30.50 levy charge.

The PML-N leader said that this would mean an increase in petroleum prices and would ultimately lead to inflation.

The former finance minister claimed that the World Bank has stopped its payments to Pakistan.

“These people (PTI ministers) have not met any IMF target in the last two years. They have suspended the IMF programme,” claimed Ismail.

He also called on the government to take back the decision to tax the government employees on medical allowance.

Finance bill suggests granting sweeping powers to FBR for arrests

The Finance Bill 2021-22 has suggested granting some "fundamental and sweeping powers" to the FBR to make arrests and prosecute taxpayers over concealment of income, The News had reported earlier this week.

According to the proposed changes, all officers of Inland Revenue (IR), starting from the Assistant Commissioner, could arrest a taxpayer accused of a tax offence without even filing a complaint before a special judge.

Thus, a concept of pre-trial arrest and detention is being introduced to the income tax law for the first time. The only requirement for arresting a taxpayer is that the officer effecting the arrest ‘believes’ that the taxpayer has committed an offence that can be prosecuted under the law. Even the prior filing of a complaint before the special judge will not be required.

However, the Senate Standing Committee on Finance has rejected the proposed powers of the FBR officers for arresting and prosecution of taxpayers on suspicion of concealment of income. The Opposition members termed the proposed powers of the FBR officers as ‘draconian’ and made it clear that they would not grant approval in the Parliament.

The question then arises as to why the FBR proposed more sweeping powers when the Income Tax Ordinance (ITO) 2001 already has provisions for prosecution.

Tax experts say that the Income Tax Ordinance 2001 includes a complete chapter containing provisions for the prosecution of a wide range of offences ranging from the concealment of income to non-filing of returns and statements.

Punishments for these offences include imprisonment for periods extending from one year to seven years and fines up to Rs5 million. These punishments are in addition to any other liability imposed on the defaulter under the ordinance, including the recovery of the evaded tax, imposition of penalty, and default surcharge.

The procedure required for prosecuting and awarding punishment to the defaulter includes filing a case before a special judge appointed by the federal government. Only a person, who is or has been a sessions judge, can be appointed a special judge for the purposes of trying income tax offences.

The Commissioner of Income Tax can file a complaint before the special judge who will conduct the proceedings under the Code of Criminal Procedure 1898. Appeal against the order of the special judge lies with the High Court. The defaulter can be arrested and imprisoned only after completion of the trial by the special judge resulting in the award of punishment.

Now the Finance Bill 2021 proposes to make some fundamental changes in the procedure explained above and grant sweeping powers to the FBR officers for the arrest and detention of taxpayers.

According to the proposed law, the officer initiating the arrest will intimate the special judge about the arrest and produce the arrested person before the special judge or a judicial magistrate within 24 hours of the arrest and the special judge may order detention for an unspecified period or accept a request for bail.

The special judge, on the request of the arresting officer, may also remand the arrested person in the custody of the arresting officer for a period of 14 days for the purpose of conducting an inquiry. The provision of remand in the custody of the inquiry officer is self-contradictory because the arrest is supposed to be affected if the arresting officer has material evidence in possession that the person being arrested has committed an offence leading to prosecution.

Another provision of the proposed law proving that the powers to arrest will be used without any evidence is that if after arrest and inquiry the officer is of the opinion that there is not sufficient evidence or reasonable ground for suspicion against such person, they shall release then upon the execution of a bond, and shall direct such person to appear if so required, before the special judge and request the special judge for the discharge of such person.

The proposed law totally disregards the normal procedure for assessment of tax under the Income Tax law and attempts to introduce a parallel system of inquiry and determination of liability but fails to specify whether these dual systems will operate independently or one will follow the other.

It has to be kept in mind that a similar system of arrest is available under the Sales Tax and Federal Excise laws as the nature and scheme of these laws are entirely different from Income Tax and such powers can be justified for the administration of these taxes.

But even in the case of sales tax, the courts have not approved these coercive powers without prior quantification and adjudication of the tax liability under the normal procedure. However, while attempting to acquire similar powers under the Income Tax Laws FBR seems to have ignored these judgments of the courts as well.

The explanation of the proposed powers to arrest and detain that are completely alien to the scheme of income tax law as in force for the last 100 years since the promulgation of the Income Tax Act of 1922 is sufficient to show the draconian nature of the proposed law.

There is ample possibility of misuse of these powers to harass the taxpayers leading to corrupt practices. It is not understandable as to why the finance minister who himself has acknowledged and expressed concern over the harassment of taxpayers by the FBR wants to arm the same officers with such oppressive and arbitrary powers that will take harassment to an altogether unprecedented level.

The finance minister intended to use this budget and the finance bill to stimulate economic recovery and growth but giving such crushing powers to the FBR will totally destroy the confidence of businessmen and common taxpayers.