Despite notification, court still operating from IHC; FCC to take up super tax case tomorrow
President Asif Ali Zardari administers the oath to Justice Aminuddin Khan as Chief Justice of the Federal Constitutional Court during a ceremony at Aiwan-i-Sadr on Friday. Photo: APP
ISLAMABAD:
The Federal Constitutional Court (FCC) — formed under the 27th Constitutional Amendment — kicked off proceedings on November 18 from its temporary premises — the Islamabad High Court (IHC).
However, despite passage of over 40 days, the court has not been moved to a new premises.
A December 11 notification stated that the FCC would be housed in the Federal Shariat Court (FSC) building, while the FSC would operate from the IHC.
The FSC has been shifted to the IHC but the FCC has yet to start its work at the notified place.
It is learnt that renovation work is currently underway in the FSC building. At least one more week will be required for the FCC to begin its work at the new premises.
The FCC will continue its work at the IHC next week as well.
Source said the FCC is facing several logistical issues, including an acute shortage of staff. The Supreme Court approved the transfer of only 20 officials for the functioning of the FCC.
Even 40 judicial officers have been transferred to the FCC from the Punjab judiciary. Some retired Supreme Court officers have also been inducted into the constitutional court.
Out of 56,608 cases, 22,910 have been transferred to the FCC from the Supreme Court.
Some experts believe that in order to deal with more than 22,000 cases transferred to the court, a large number of officials should also have moved to the FCC.
It has also been observed that the ratio of filing cases in the FCC is higher than that of the Supreme Court.
A senior government official said the FCC could have easily worked from the Supreme Court premises as three courtrooms could be spared for the FCC in the SC building.
Currently, seven judges are working in the FCC. Despite the huge pendency, there is no indication that new judges will be appointed to the new court.
A senior government official said new judges will be appointed in the FCC soon after the resolution of logistical issues.
FCC takes up super tax case tomorrow
Meanwhile, a three-member FCC bench led by Chief Justice Amin-ud-Din Khan will hear the super tax case on Monday.
Before the passage of the 27th Constitutional Amendment, nearly 50 hearings were conducted by the Supreme Court’s Constitutional Bench in this case. The proceedings were close to conclusion when the case was transferred to the FCC. Out of the three judges, two members of the FCC were part of the SC bench that was hearing the matter.
The controversy surrounding Sections 4B and 4C of the Income Tax Ordinance, 2001 constitutes one of the most consequential fiscal and constitutional disputes in Pakistan’s recent history.
It involves revenue implications running into hundreds of billions of rupees and raises fundamental questions about parliament’s taxing power, equality before the law, and the scope of judicial review in fiscal matters.
Section 4B was introduced through the Finance Act, 2015, imposing a “super tax” on high-income persons, particularly banking companies and other persons earning income exceeding Rs500 million.
Hafiz Ahsaan Ahmad Khokhar, counsel for the Federal Board of Revenue (FBR), while giving the background of the case, said the levy was initially justified as a temporary fiscal measure aimed at generating funds for the rehabilitation of temporarily displaced persons.
Although introduced for a specific tax year, the super tax under Section 4B was extended through subsequent Finance Acts, prompting constitutional challenges before various high courts.
On multiple occasions, however, the Lahore High Court (LHC), the Sindh High Court (SHC), the IHC and the Peshawar High Court (PHC) consistently upheld the validity of Section 4B, affirming that double taxation is not per se unconstitutional.
They noted that parliament enjoys wide latitude in fiscal legislation under Articles 73 and 77 of the Constitution.
Despite the consistent validation of Section 4B by all high courts, taxpayers ultimately carried the matter to the Supreme Court for final adjudication.
The challenge remained pending before the SC for several years, with interim arrangements allowing conditional recovery.
While no consolidated nationwide figure for collections under Section 4B was officially disclosed, audit and tax records indicated substantial exposure, with sample audit observations alone reflecting non-levy of super tax, illustrating the significant fiscal stakes involved.
While the challenge to Section 4B was already pending before the SC, parliament enacted Section 4C through the Finance Act, 2022, substantially expanding the scope and scale of the super tax regime.
Section 4C imposed an additional levy on persons and companies earning income exceeding Rs150 million, with progressively higher rates applied to designated sectors identified as having earned windfall profits.
For certain sectors — including banking, oil and gas, fertiliser, cement, sugar, iron and steel, LNG terminals, textiles, automobiles, beverages, chemicals, airlines and cigarettes — the super tax rate reached 10%, significantly increasing the effective tax burden on banks and large corporations.
The fiscal magnitude of Section 4C was unprecedented. The FBR officially projected that the levy would generate approximately Rs250 billion in additional revenue for Tax Year 2022-23 alone.
Budgetary documents and contemporaneous reporting further indicated that the government expected between Rs215 billion and Rs247 billion specifically from the super tax regime, including an estimated Rs180 billion from corporate entities and around Rs87 billion from public-sector and state-owned enterprises.
