The top court has ordered the cantonment boards to refund the professional taxes, collected by them in violation of the Article 163 of the Constitution, which authorises the provinces to impose the professional taxes.

A three-member of the apex court issued a nine-page judgment, authored by Chief Justice Qazi Faez Isa, while dismissing the cantonment boards petitions against a Sindh High Court (SHC) judgement.

“The professional taxes mentioned in Article 163 of the Constitution [and] recovered by the cantonment boards, were unconstitutional, consequently, they cannot be retrained, which should be refunded and would have to be refunded,” the judgment said.

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The judgment referred to a previous case decided by the apex court in 1998. It reproduced a para of 1998 judgment wherein it was held that when moneys were paid to the state which the state had no legal right to receive, it was ordinarily the duty of the state to refund the amount so received.

The judgment held that the Article 163 had already been interpreted by the apex court in 2007, with which “we are in agreement”. Decisions of this court, the judgment continued, were binding on all executive functionaries, including cantonment boards, as mandated by the Article 189.

“Therefore, Section 60(1) of the Cantonments Act and its Schedule VII to the extent that they may authorise the imposition of the professional taxes are ultra vires the Constitution,” the judgment said, adding that the Article 163 alone authorised the provinces to impose the professional taxes.

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“We are in complete agreement with the decision of this court in the ICI case. The attempt to distinguish it on the ground that, after the insertion of Article 140A into the Constitution it changed the existing constitutional scheme, is not correct,” it continued.

“It is also not correct to state that since the second entry of the Federal Legislative List mentions local self-government and cantonment areas the Federation have been authorised to impose the professional taxes,” the judgment read further.

“Article 163 of the Constitution specifically empowers the provinces to impose the professional taxes; it is the only provision in the Constitution which permits or authorizes this, and it must be given effect to; it cannot be disregarded or whittled down by untenable submissions.”

The court dismissed the cantonment boards’ appeals with costs throughout. “We would like to clarify that … the observations made herein are with regard to the professional taxes mentioned in Article 163 of the Constitution, section 60(1) of the Cantonments Act and its Schedule VII.”