Litigations

Litigation starts from issue or reply to the Legal Notices or Show-Cause-Notices, preparing a matter then attending the proceedings before various Judicial Forums or Courts-of-law i.e. Supreme Court, High Court, District Court, Banking Courts, Labour Court, Family Court, Judicial Magistrate (JM), Session Courts, Anti-Corruption Court (Federal), Special Court for offences in Banks, Special Customs Court, Accountability Court (NAB Court), Appellate Tribunal Inland Revenue (ATIR), Foreign Exchange Regulations Appellate Board, Insurance Tribunal, Intellectual Property Tribunal, SECP- Appellate Bench, Collector Customs- Appeals, Commissioner Appeals- SRB, Arbitration, Mediation Including Court Annexed Mediation, Banking Mohtasib, Provincial Mohtasib, Wafaqi Mohtasib, Income Tax Department, Collector Customs- Adjudication, Foreign Exchange Adjudication Department- SBP, National Electric Power Regulatory Authority (NEPRA), Competition Commission of Pakistan (CCP), National Tariff Commission (NTC) and many others.

In litigation we assist our clients in devising appropriate strategy including interlocutory applications for interim reliefs, in drafting and presenting their facts as per the Court’s procedure, the reliefs desired and the contentions of a party, supporting the same with the relevant laws and precedent cases as a Judicial Forum or the Court-of-Law decides a matter on the basis of the documents supporting various events, transactions, rights and obligations etc.

Civil Litigation

Civil Litigation are the disputes as to the civil rights between parties to seek various reliefs i.e.

declaration, direction, injunction, cancellation, recovery, possession, rendition of accounts, mesne profit, damages etc.

We have represented our clients before different Civil Courts/Adjudicating forums i.e. District Courts, Banking Courts, Insurance Tribunal, Intellectual Property Tribunal, Labour Courts, Collector Customs (Adjudication), Collector Customs (Appeals), NEPRA, S.E.C.P/ Appellate Bench, Commissioner-Appeals (SRB), Banking Mohtasib, Wafaqi Mohtasib, High Courts, Supreme Court, involving:

Constitutional Petitions

Constitutional Petitions (CPs) are also called Writ Petitions (WP) are filed before the High Court under Article 199 of the Constitution against:

  1. To challenge vires of some enactment i.e. in violation of the dictates of the constitution. or
  2. An illegal action by a government official i.e. an action not allowed under the law or
  3. An action required to be taken as per law, but is not being taken by a government official.
  4. Public-Interest/Representative Petitions are also filed under Article 199.

A CP is maintainable if:

  1. The party is an aggrieved party i.e. a fundamental right as guaranteed under the Constitution is threatened.
  2. There is no adequate and efficacious remedy available,
  3. No factual controversies are involved etc.

While the Limitation Act, 1908 does not apply to CPs, however there is a concept of ‘laches’ i.e. the delay in filing a CP from the date of cause of action needs to be explained. Therefore, it is important to immediately take legal action, whenever required.

In case the issue is with respect to some Provincial Laws, the Provincial Government is a compulsory party and with respect to some Federal Law, the Federal Government is a necessary party. If both Provincial and Federal laws are involved then both Provincial and Federal governments can be made party like in the petitions of Federal Excise Duty Vs. Sindh Sales Tax on Services.

Private parties can also be made Respondents in a Constitutional Petition, especially when some restraining order is desired.

The procedure in CPs is as under:

  1. Filing of CP
  2. Preliminary Hearing and Issue of notices upon Respondents.
  3. Comments by Respondents, if required
  4. Rejoinder by the Petitioner, if required
  5. Hearing
  6. Order

Emad has filed and appeared in a number of Constitutional Petitions w.r.t. Income Tax, Federal Sales Tax, Federal Excise Duty (FED), Customs duty including Anti-dumping duty, Sindh Sales Tax on Services, WWF, SWWF, SWPPF, SESSI, Property Tax under Cantonment, Sindh Building Control Authority (SBCA), Public-Private-Partnership-Project, Foreign Exchange Circular, Merger, NAB reference, etc.

other petitions

Besides the Constitutional Petitions before High Court other Petitions are also filed in various matters for instance Tariff petitions are filed before ‘National Electric Power Regulatory Authority’ (NEPRA) for determination of Electricity Tariff.

ITRAs

Income Tax Reference Application (ITRA) is filed under the Income Tax Ordinance 2001 against the order of the Appellate Tribunal Inland Revenue (ATIR) before the High Court to challenge wrong application or interpretation of law by the Tax Authorities.

The procedure in ITRA is as under:

  1. Filing of ITRA
  2. Preliminary Hearing, framing of Legal Questions to be decided by the Court and Issue of notices upon Respondents i.e. the Tax Department.
  3. If required, comments by the Respondent(s)
  4. Hearing
  5. Decision of the questions in affirmative or negative.

In both CP and ITRA, questions of laws are decided. For fiscal matters due knowledge of accounting is a must hence Emad and his associates having practical working experience in the corporate sector in tax and accounts departments easily understands the Tax issues and have filed and appeared in ITRAs and Constitutional Petitions involving Income Tax matters on the following issues:

  1. Applicability of surcharge on Minimum Tax
  2. Best Judgment Assessment
  3. Apportionment of Common Expenses between income under Normal Tax Regime (NTR) and income under Presumptive Tax Regime (PTR)
  4. Apportionment of Admin. & Distribution expenses to Dividend and Capital Gain.
  5. Non-issue of Exemption Certificate
  6. Treatment of tax deducted at source as Minimum Tax in case of exempt income
  7. Treatment of tax collected at the import stage as Final Tax in case of exempt income
  8. Assessment of income under Normal Tax Regime (NTR), while covered under the Final Tax Regime (FTR).
  9. Levy of income tax on surplus funds of an NPO
  10. Super Tax on high earners
  11. Requirement of Exemption Certificate from Approved funds
  12. Incorrect classification for the purpose of rate of Minimum Tax
  13. Levy of Income Tax on undistributed profits
  14. Withdrawal of tax exemption from Greenfield Industry through subsequent legislation.
  15. Tax Credit on BMR
  16. Tax Credit for Greenfield Industries

SCRA

Special Customs Reference Applications (SCRA) are filed under the Customs Act, 1969 against the order of the Customs Tribunal before the High Court to challenge wrong application or interpretation of law by the Tax Authorities.

The procedure in SCRA is as under:

  1. Filing of SCRA
  2. Preliminary Hearing, framing of Legal Questions to be decided by the Court and Issue of notices upon Respondents i.e. the Tax Department.
  3. If required, comments by the Respondent(s)
  4. Hearing
  5. Decision of the questions in affirmative or negative.

Emad and his associates have filed and appeared in SCRA and Constitutional Petitions relating to customs matters, involving the following issues:

  1. Demand of duty on the alleged mis-declaration of goods under section 32 of the Customs Act, 1969 after clearance and consumption of the goods
  2. Determination of export value on the basis of U.O (Unofficial) note by the department against the declared export value
  3. Provisional Anti-dumping Duty determined by National Tariff Commission (NTC)
  4. Allegation of non-payment of Import Duty by an Exporter in EPZ-Karachi
  5. Withdrawal of tax exemption from Greenfield Industry through subsequent legislation.

SSTRA

Special Sales Tax Reference Applications (SSTRA) are filed under the Sales Tax Act, 1990 i.e. federal sales tax on goods and under Provincial Sales Tax Acts, for provincial sales tax on services against the order of the Tribunal before the High Court to challenge wrong application or interpretation of law by the Tax Authorities.

The procedure in SSTRA is as under:

  1. Filing of SSTRA
  2. Preliminary Hearing, framing of Legal Questions to be decided by the Court and Issue of notices upon Respondents i.e. the Tax Department.
  3. If required, comments by the Respondent(s)
  4. Hearing
  5. Decision of the questions in affirmative or negative.

Emad and his associates have filed and appeared in SSTRA and Constitutional Petitions involving the following issues:

  1. Levy of Additional Sales Tax of 3% on Imports on goods for in-house consumption.
  2. Non-registration as ‘Manufacturer’ under the Sales Tax
  3. Levy of Extra and Further Sales Tax on Electricity Bill
  4. Sales tax on Price Differential Claim on Petroleum products
  5. Refusal of grant of injunction by the Commissioner Appeals due holding inadmissibility of the Input Sales Tax
  6. Sales tax on disposal of fixed assets
  7. Withdrawal of tax exemption from Greenfield Industry through subsequent legislation.
  8. Non-charging of further tax for supplies to unregistered persons
  9. Sindh Sales Tax on consultancy/advisory services, not mentioned in the Second Schedule to the Sindh Sales Tax on Services Act, 2011.
  10. Sindh Sales Tax on food served at a restaurant.
  11. Demand of time-barred information by Tax Department without audit proceedings
  12. Sindh Sales Tax on consultancy/advisory services
  13. Sindh Sales Tax on Operation & Maintenance Income not mentioned in the Second Schedule to the Sindh Sales Tax on Services Act, 2011
  14. Sindh Sales Tax on Services on Shipping Agent when SRB Tribunal was not functional

Arbitration

In case of an ‘Arbitration Clause’ in an agreement or the parties with consent can refer their matter to Arbitration, wherein one or more ‘Arbitrators’ are appointed in terms of the agreement or in case of a matter pending in the court, the Arbitrator can be appointed under the Court’s Order.

The ‘Arbitrator’ also carry-out the adjudication procedure similar to the court i.e. filing of claims, framing of issues, evidence and arguments. Instead of the Judgment, the Arbitrator issues the ‘Award’. This ‘Award’ is filed in the court to make it rule of law.

Judicial Companies Miscellaneous (JCMs)

JCMs involve:

  1. Merger & Acquisition Petitions
  2. Winding-up Petitions
  3. Petitions for oppressive and suppressive management
  4. Petitions against the order of ‘Oil & Gas Regulatory Authority’ (OGRA)

Emad and his associates have filed and appeared in various JCMs.

Civil suits

A Civil Suit is filed to seek following reliefs from the court:

  1. Declaration,
  2. Direction,
  3. Injunction,
  4. Cancellation Of Documents
  5. Recovery,
  6. Possession,
  7. Partition
  8. Specific Performance
  9. Rendition of Accounts
  10. Mesne Profit
  11. Damages etc.

The procedure in a civil suit is as under:

  1. Suit is filed along with Annexure (Documents) and Interlocutory Applications. The most common application is of ‘Stay’ (Injunction) besides other applications.
  2. Notice is issued by the Court to the Defendants
  3. Written Statement(s) is filed by the Defendants along with Annexure (Documents)
  4. Submission of proposed Issues by the parties
  5. Framing of Issues by the Court to be decided.
  6. Submission of list of documents and witnesses within 7 days of framing of issues.
  7. Evidence i.e. Documentary as well as oral.
  8. Arguments
  9. Judgment
  10. Decree and
  11. Execution

The points to be considered in filing a Civil Suit are:

  1. Limitation; i.e. a suit is required to be filed within the time as prescribed under the Limitation Act, 1908
  2. Parties; Who are to be joined together as Plaintiffs and who are to be made a Defendants
  3. Jurisdiction; territorial, pecuniary or functional.
  4. Authorized person
  5. Events: Events leading to the cause of action to seek the relief
  6. Documents; Documents relied i.e. Agreements, correspondence, certificates, approvals, etc. It is therefore important to keep original documents of a transaction intact.
  7. Witnesses; Who will appear as witness to support the contentions of the party. Examination-in-Chief of the witness is carried out, wherein the witness supports the contentions of the party in affirmative. Then the other side carry out cross-examination of the witness to establish the truth of the statement made by the witness.

Banking suits

Banking suits are filed in Banking courts, which are specialized to deal with suits between a Banker and a Customer involving finances.

Banking suits are also ‘civil suits’ but the procedure is summary procedure, wherein the Defendant is required to first obtain Leave to Defend (LTD) within 30 days of service of the notice.

The LTD in Banking Suit is allowed if the Court feels that there are substantial questions of law and facts requiring evidence. If LTD is not allowed, the Court decides the Suit on the basis of the documents and hearing the Plaintiff.

insurance suits

Insurance Suits are filed before the Insurance Tribunal as Insurance Suits however the procedure is same as that of the Civil Suits.

Intellectual Property suits

Intellectual Property (IP) Suits are filed before the Intellectual Property Tribunal with respect to the issues relating to IPs i.e. trade-marks, copyrights, designs, etc. for:

  1. Infringement
  2. Counterfeiting
  3. Misuse etc.

Admiralty suits

Admiralty Suits are also Civil Suits but are filed on the Admiralty side of High Court against a Shipping Company.

The salient feature of Admiralty Suit is Application for arrest of the Ship, which if allowed by the Court, the Port Authorities don’t allow the ship to leave the port unless a Bank Guarantee for the disputed amount is deposited or suit is decided.

Appeals

After the decision from the first forum, which is also called ‘Original Side’, appeals are filed before the appellate forums as under:

  1. Amended Assessment Order by the Tax Officer —– Appeal to Commissioner Inland Revenue (Appeals) —- Appeal to Appellate Tribunal Inland Revenue (ATIR) – Reference to High Court – Appeal to Supreme Court.
  2. Order-in-Original in Sales Tax, Customs Duty — Appeal to Collector (Appeals) — Appeal to Sales Tax & Customs Tribunal Reference to High Court – Appeal to Supreme Court.
  3. Judgment by Senior Civil Judge (SCJ) in Civil Suits — 1st Appeal to Additional District Judge (ADJ) — 2nd Appeal to High Court – Appeal to Supreme Court.
  4. Judgment in the Banking Suit — 1st Appeal to High Court — Appeal to Supreme Court.
  5. Judgment by Foreign Exchange Adjudication Department — Appeal to FX. Regulation Appellate Board — Appeal to High Court — Appeal to Supreme Court.
  6. High Court Appeals (HCA) or Intra-Court Appeals (ICA) in High Court against the order in some interlocutory application.

Likewise, there are provisions of appeal in other laws also.

In Appeal following points are raised and pleaded:

  1. The lower forum erred in appreciating some evidence.
  2. The lower forum misread some evidence.
  3. The lower forum misinterpreted some law.
  4. Any other illegality in the judgment of the lower forum.

Complaints to Mohtasib (Ombudsman)

In case of some malpractice by a department or institute complaint is filed with the Ombudsman. Ombudsman is a quasi-judicial forum with limited but quick procedures to decide a matter. For instance:

  1. Federal Ombudsman; for complaint against the malpractice by a Federal department, ministry etc.
  2. Provincial Ombudsman; for complaint against the malpractice by a Provincial department, ministry etc.
  3. Tax Ombudsman; for complaint against the malpractice of a Tax Officer
  4. Banking Ombudsman; for complaint against the malpractice by a Bank.

Criminal Litigation

Criminal litigation involves matters involving various criminal offences.

We represent our clients before different criminal courts i.e. Session Courts, Accountability Court (NAB), Special Court for Offences in Banks, Special Customs Court, Anti-Corruption Court, High Courts involving:

  • Bails; Protective, Pre-Arrest or After-arrest
  • Constitutional Petition for quashment of FIR, NAB Reference etc.
  • Constitutional Petition for removal of name from ‘Exit Control List’ (ECL)
  • Acquittal and other Applications including ‘Exemption from personal appearance’, ‘Application to allow hearing through video-link’ etc.
  • Trial before various criminal courts i.e. session courts, Accountability (NAB) courts, FIA etc.

The usual steps in criminal cases is:

  1. F.I.R./ Private Criminal Complaint
  2. Notice/Call-up Notice to give statement
  3. Investigation
  4. Challan
  5. Framing of Charges
  6. Trial; Examination/ Cross Examination
  7. Judgment

Property Matters

Majority of the litigation is with respect to property disputes, which may be for:

  1. Petition for ‘Letter of Administration’ and/or ‘Succession Certificate’
  2. Administration/Partition; when the legal heirs do not cooperate with each other for obtaining ‘Letter of Administration’ then Court is appointed as Administrator for partitioning and distributing the property among the legal heirs.
  3. Specific Performance; when advance against the sale price of a property is made, however the seller later on cancels the agreement unilaterally.
  4. Possession; to take possession of a property from a person illegally occupying the same.

We assist the clients in filing the above and representing them before appropriate court.

Family Matters

Family matters are generally of civil nature and involves the following:

  1. Suit for desolation of marriage, maintenance and dowery Articles etc.
  2. Guardian & Ward Application; for custody of children and visitation rights
  3. Family Settlement Agreement
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