A damning indictment

Heads of National Accountability Bureau and Federal Board of Revenue get court’s flak for failing to act properly in the Panama case

A damning indictment

The ruling elites in Pakistan not only defy tax laws with impunity and make mockery of laws enacted by Parliament, but also squander tax money (extorted from the ordinary citizens) for self-projection -- even defending their personal cases in courts. They enjoy unprecedented perquisites and benefits (for entire family and clan), foreign visits and luxurious living at the expense of national exchequer.

The institutions that have to generate taxes, check corruption, make public officeholders accountable and safeguard public funds are captive in the hands of rulers of the day. Loyalists and cronies are appointed heads of such institutions. Chairman National Accountability Bureau (NAB) and Chairman Federal Board of Revenue (FBR) have been admonished in the judgement delivered by five member-bench of Supreme Court of Pakistan on April 20, 2017 in the famous Panama case [Imran Ahmad Khan Niazi v Mian Nawaz Sharif & 9 Others--CP No. 29 of 2016].

The following observations (obiter dictum) by honourable judges that pertain to extreme callousness of heads of NAB and FBR in probing Panama Leaks are clear indictments against them, yet they are holding onto their offices (rather extension has been given to Chairman FBR till 30 June 2017 on his retirement on 24 April 2017): 

Per Justice Asif Saeed Khan Khosa:

"133. It is unfortunate that despite a passage of over one year since surfacing of the Panama Papers the Chairman, Federal Board of Revenue, respondent No. 5, has taken no serious step and has made no meaningful effort towards playing his due role in probing into the matter so as to find out whether any illegality had been committed by anybody in the matter or not. Except for issuing a few notices and writing a few letters the Federal Board of Revenue has not pursued the matter at all and such inaction and apathy can only be attributed to lack of will and dereliction of duty. The same is the case with respondent No. 2 namely Mr. Qamar Zaman Chaudhry, Chairman, National Accountability Bureau who appeared before this Court and maintained that the National Accountability Bureau was cognizant of its duties and responsibilities in connection with the issues arising out of the Panama Papers but respondent No. 2 was waiting for the "regulators" to look into the matter first. We repeatedly asked him to elaborate as to who those "regulators" were and where did they figure in the National Accountability Ordinance, 1999 but he did not even bother to respond to those questions and conveniently kept quiet!" 

The institutions that have to generate taxes, check corruption, make public officeholders accountable and safeguard public funds are captive in the hands of rulers of the day. Loyalists and cronies are appointed heads of such institutions.

Per Justice Ejaz Afzal Khan:

"In the normal circumstances this job could well be done by NAB, but when its Chairman, in view of his conduct he has demonstrated in Hudaibya’s case by not filing an appeal against a split verdict of the Lahore High Court, appears to be indifferent and even unwilling to perform his part, we are constrained to constitute a joint investigation team (JIT)……" 

Per Justice Sh. Azmat Saeed:

"The Chairman, NAB shamelessly defended the decision of not filing an appeal. Interestingly, appeals are filed by the NAB before this Court in routine but not in this case. We believe that a population census is in progress. It is expected that the population of Pakistan would be more or less 200 million. If out of the 200 million people of Pakistan the only person, we can find to head over Premier Anti-corruption Institution is Respondent No.2, we might as well legalize corruption." 

Per Justice Ijaz Ul Ahsan:

"22. After hearing the Chairman, FBR we are constrained to express our dissatisfaction and extreme disappointment on the mode and manner in which the premier taxation authority of the country has dealt with the matter."

One needs not to be a legal expert to conclude after reading the above strictures by honourable judges that chairmen NAB and FBR could not continue after the judgement. These two important institutions, and many others, should be insulated from all outside influence, especially political control. Their independence should not be merely on paper but it must be demonstrated in practice.

The concise statements filed in the Supreme Court by the incumbent prime minister and his offspring admit that Maryam Safdar was beneficial owner of the offshore companies (and by virtue of that, owner of Mayfair flats in London) from February to July 2006. She failed to declare this fact in her tax declarations for Tax Year 2006 (July 1, 2005 to June 30, 2006). It is admitted that on 04.7.2006, yet another Share Certificate No.0003 was issued in the name of M/s. Minerva Services Limited. Subsequently, on 09.6.2014, two Ordinary Shares bearing Certificate No.4 were issued in the name of M/s. Trustee Service Corporation. Since 2014, the beneficial owner of companies is purportedly/allegedly Maryam Safdar [JIT once constituted can investigate this fact by seeking the assistance of International Union for Counteraction of Criminality -- www.iucc.eu].

After the confession of Maryam Safdar in Supreme Court, the FBR officials did not take any action under section 122(5) read with section 214A of the Income Tax Ordinance, 2001, which read as under:

"122(5) An assessment order in respect of a tax year, or an assessment year, shall only be amended under sub-section (1) and an amended assessment for that year shall only be further amended under sub-section (4) where, on the basis of definite information acquired from an audit or otherwise, the Commissioner is satisfied that-

any income chargeable to tax has escaped assessment; or

total income has been under-assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund; or

any amount under a head of income has been mis-classified".

"214A Condonation of time limit. Where any time or period has been specified under any of the provisions of the Ordinance or rules made there-under within which any application is to be made or any act or thing is to be done, the Board may, in any case or class of cases, permit such application to be made or such act or thing to be done within such time or period as it may consider appropriate.

Explanation,- For the purpose of this section, the expression "any act or thing is to be done" includes any act or thing to be done by the taxpayer or by the authorities specified in section 207.

Provided that the Board may, by notification in the official Gazette, and subject to such limitations or conditions as may be specified therein, empower any Commissioner or Chief Commissioner under this Ordinance to exercise the powers under this section in any case or class of cases".

For tax year 2014 onwards, her cases can be reopened even without using special provision of section 214A of the Income Tax Ordinance, 2001. If no action is taken by concerned officials of FBR yet, it must be taken as early as possible as the Implementation Bench of Supreme Court, after constituting Joint Investigation Team (JIT) on May 3, 2017 under Article 190 of the Constitution, would take a strict view of the matter. The present chairman FBR, who has been given extension till close of this financial year, is surely be aware of the consequences of any inaction on this account as the chairman NAB is already facing reference under Article 209 of the Constitution for his lapses.

Those who are saying that offspring of the prime minister and his abettors, who admitted to have opened fake accounts in Hudabiya Papers Mills and elsewhere, have been exonerated must read the following parts of the judgement of majority view: 

Per Justice Ejaz Afzal Khan:

"16………Another document showing respondent No. 6 as the beneficial owner of the flats is the alleged correspondence between Mr. Errol George, Director FIA, British Virgin Islands and Money Laundering Reporting Officer of Mossack Fonseca & Co. (B.V.I.) Limited. A photocopy of an extract from the clients’ register of Director, Minerva Trust and Corporate Services Limited, according to the learned ASC for the petitioner, is yet another document proving respondent No. 6 as the beneficial owner of the flats. In any case, the questions how did Gulf Steel Mill come into being; what led to its sale; where did go its sale proceeds; how did they reach Jeddah, Qatar and the U.K.; whether respondents No. 6, 7 and 8 in view of their tender ages had the means in the early nineties to purchase the flats; whether sudden appearance of letters of Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality; how bearer shares crystallized into the flats; how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and where did its Working Capital Fund come from and where did the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in clamor for answers to be found by the investigation agency and then by the Accountability Court established under the National Accountability Bureau Ordinance."

[Note: (Respondents) Maryam Nawaz Sharif, Hussain Nawaz Sharif and Hassan Nawaz Sharif, respectively] 

Per Justice Sh. Azmat Saeed:

"94. If the conclusions of the investigation by the Joint Investigation Team (JIT), so justify, appropriate orders may be passed for initiation of criminal proceedings under Section 9(a)(v) of the NAB Ordinance against the private Respondents, some of them or any other person, as the case may be".

It is high time that NAB and FBR should act as per law as directed by the Supreme Court. If they fail to do so, it is obvious the apex court is not going to spare them this time.

A damning indictment