Justice Faez Isa case: Govt challenges two sections of Income Tax Ord

ISLAMABAD: The federal government on Monday challenged two clauses of the Income Tax Ordinance, which guarantee confidentiality of tax record of any individual, saying that during present times, confidentiality and privacy cannot be sought in respect of financial or property matters.

In 108-page written arguments submitted in the Supreme Court, government’s counsel Farogh Naseem said that sections 198 and 216 of the 2001 Ordinance “ex facie violate the fundamental right of information guaranteed under Article 19-A of the Constitution and the fundamental right of due process guaranteed under Article 10-A of the Constitution.”

Earlier, Justice Qazi Faez Isa had contended before a 10-judge full court that his tax records and that of his wife were unauthorisedly scrutinised by the functionaries other than the Federal Board of Revenue (FBR) in violation of sections 198 and 216 of the 2001 ordinance.

Under Section 198, if a person discloses information, he can face up to one year jail term and fine of up to Rs500,000. The Section 216 also bars disclosure of information by a public servant. The government, however, contended that any confidentiality and privacy could not be sought in respect of income, financial or property matters during the present times.

“It was because of this that in India an analogous to our Section 216 provision ie Section 137 of the Income Tax Act, 1961, was repealed as far back as 1964,” the government’s arguments said.

Farogh said that it was a fundamental right of a citizen of Pakistan to know the details of income and assets of public servants, holders of public office and those who were in the Service of Pakistan. “Therefore, the court is invited to read down sections 198 and 216 of the 2001 Ordinance, so as to hold that they are not mandatory in nature.”

“This argument is without prejudice to the parent argument that in view of Section 216(3)(p) of the 2001 Ordinance, the petitioner cannot seek any refuge in respect of his tax records, in the context of the matter,” the government counsel said.

The arguments said that Justice Isa as a public servant, was subject to “investigation”. “Section 216(3)(p) provides that nothing in Section 216(1) shall preclude the disclosure of any particulars which may be required by any officer or department of the federal government or of a provincial government for the purposes of investigation into the conduct and affairs of any public servant.” However, Dr Farogh Naseem added that the term “investigation” was not used in the sense in which it had been used in the Criminal procedure Code (CrPC).