Supreme Court slams FBR for frivolous cases

The Supreme Court has expressed serious concern about the filing of frivolous cases by the Federal Board of Revenue (FBR). It has directed the taxman to constitute committees to review cases before approaching courts.

"In order to address this problem, it is imperative for the Chairman, FBR, to consider constituting committees that function with the highest degree of independence and include a retired judge of the superior judiciary, an experienced tax practitioner, and senior serving or retired officers of the FBR with distinguished records and impeccable credentials.

"These committees should be mandated to examine each case in a timely manner before a decision is made to file a reference before a high court or a petition before this court.

"The FBR may also consider undertaking a review of all pending cases to determine whether the questions of law sought to be agitated already stand settled by judgments of superior courts," said a six-page judgment authored by Justice Miangul Hassan Aurangzeb.

Justice Aurangzeb was part of a three-member bench, led by Justice Naeem Akhtar Afghan, that dismissed an FBR petition in a taxpayer-related matter.

The court lamented that when government departments routinely file appeals or petitions — often up to the high courts and the Supreme Court — on questions of law that have already been authoritatively settled, the practice results in serious institutional harm.

"The most immediate consequence is the clogging of court dockets. Courts are compelled to spend scarce judicial time revisiting issues that are no longer res integra, at the cost of undecided legal and constitutional questions, criminal appeals involving personal liberty, and civil disputes pending for years.

"This undermines the constitutional mandate of speedy justice. Repeated appeals or petitions on settled law weaken respect for Article 189 of the Constitution, the doctrine of stare decisis, and judicial discipline within the executive branch.

The judgment noted that when the state itself disregards binding precedents, it sends the wrong signals to subordinate courts, tribunals, and litigants.

Such appeals and petitions, it said, result in unavoidable litigation costs and the consumption of public funds for counsel, court fees, and administrative processing.

The court further observed that the state is expected to act as a responsible and fair litigant, not as a compulsive appellant or petitioner. The practice and tendency within government departments to file appeals or petitions mechanically — particularly when the outcome is foreseeable in light of settled law — has already been deprecated by the court in earlier judgments.

The court also noted that it already possesses both constitutional authority and jurisprudential tools to address the problem of repeated appeals or petitions by government departments on settled questions of law.

"Not only can courts dismiss such appeals or petitions in limine, one of the most effective tools is the imposition of costs. In egregious cases, courts may also require the identification of the officer who authorized the filing of the appeal or petition.

"It is imperative that there be internal accountability within government departments and careful legal scrutiny before filing appeals or petitions.

"Had such scrutiny taken place before the filing of the instant petition, it would have been realized that the primary question of law sought to be agitated already stands authoritatively settled by a number of judgments of this court."

The judgment further noted that despite the law laid down by the SC — binding on the FBR under Article 189 of the Constitution — the petitioners attempted to "reinvent the wheel" by arguing that the 120-day time limit prescribed in the first proviso to Section 11(5), as substituted by Section 11G(2) of the 1990 Act, for passing an order is directory rather than mandatory.