2005 PLP 1368 (PTD)

Appeal filed by petitioner No.1 before the learned Appellate Tribunal, Customs, Excise and Sales Tax, Lahore is pending since 5-6-2003 against the order-in-original, dated 14-5-2003. The learned Tribunal admitted the appeal to the regular hearing through order, dated 10-6-2003. On 1-7-2003, a conditional stay order was granted by the learned Tribunal staying the recovery of the three-fourth of the principal amount of the sales tax, the additional tax and the penalty amount subject to the deposit of one-fourth of the principal amount. The petitioners did not comply with the condition of deposit of 1/4th of the demanded amount where for the stay application was deemed to have been dismissed. However, in view of the observation of this Court recorded in the order, dated 10-3-2004 passed in W.P. No.2943 of 2004, the stay was again granted to the petitioners by the learned Appellate Tribunal with the same condition per order, dated 25-3-2004. This condition was complied with and the petitioner deposited 1/4th of the principal amount of the sales tax.

2. Thereafter on 4-5-2004 the appeal was adjourned sine die in compliance with some executive order allegedly, dated 4-5-2004. The appeal has thus remained pending.

3. The learned counsel for the petitioners states that the respondents have raised a demand for the recovery of their impugned amount; the subject-matter of the appeal as the stay granted by the learned Tribunal was admittedly effective for six months in terms of the provisions of section 46(4) of the Sales Tax Act, 1990. The respondents have also threatened coercive measures for failure to pay the said amount. Hence this Constitutional petition to seek a writ for restraint of the threatened coercive measures during pendency of the petitioners' appeal in the learned Appellate Tribunal and also for a direction to fix the appeal for an early hearing. The learned counsel emphasized that the appeal remained pending owing to above-referred executive order and the delay thus was not owing to petitioners' inaction.

4. I have considered submissions of the learned counsel for the petitioners. The appeal filed by the petitioners is pending before the learned Appellate Tribunal. It has been adjourned sine die through order, dated 4-5-2004. The delay in the decision of the appeal is not attributable to the petitioners.

5. To avail order of stay, the petitioners complied with the condition of deposit of 1/4th of the sales Tax. In view of the provisions of section 46(4) of the Act, the stay granted to the petitioners lapsed automatically on expiry of six months whereas the case was adjourned sine die on 4-5-2004. It is in these circumstances that the petitioners had to invoke the Constitutional jurisdiction of this Court in absence of any other remedy.

6. Under the circumstances of the present case, it would be travesty of justice to allow the respondents to adopt coercive measures for recovery of the amount which is the subject-matter of a pending appeal. The right of appeal; compete and unbridged, is a right vesting in an affected person. To seek an interim relief is also a right recognized by the Courts and the law to vest in such person as a necessary concomitant of the right of appeal. In my opinion, denial of the relief of an interim protection in an appropriate case, during the pendency of appeal, will be an abridgment of the effective and complete appeal right. Furthermore, the petitioners are also entitled to at least one extra departmental appeal. During pendency of such an appeal and for effectiveness of the right to maintain the appeal, the petitioners under the circumstances are entitled to the protection against coercive measures for effective dispensation of the justice and law in absence of any other efficacious remedy.

7. The petitioners may make an application before the learned Appellate Tribunal for seeking early hearing. I have no doubt that the learned Appellate Tribunal shall consider petitioners' application and decide the same and the appeal at the earliest.

8. In the meanwhile, the respondents are restrained from adopting any coercive measures against the petitioners for recovery of the amount under appeal. This Constitutional petition is disposed of in above terms alongwith all C.Ms. H.B.T./P-69/L Order accordingly.