1989 PLP 605 (PTD)

Date of hearing: 1st November, 1988. This order will govern disposal of Sales Tax Case Nos. 28, 31 and 37 of 1979. In all the above noted cases the following questions have been referred in this Court under section 17(2) of Sales Tax Act 1951 for decision: (1) Whether, on the facts and in the circumstances of the case, the learned Tribunal was justified in holding that no fresh material was available on record, despite the facts, it was found that the assessee company had not truly and correctly stated the facts before the department and made agreement after misrepresenting the facts. (2) Whether, on the facts and in the circumstances of the case. the learned Tribunal was justified in confirming finding of A.A.C. that the statutory time limit of thirty five days could not be curtailed for submission of return." The period of assessment involved in the abovenoted three cases relates to assessment years 1971-72, 1972-73 and 1973-74. The assessment for the above years was finalised by the Sales Tax Officer by his order dated 25-2-1975 after protracted investigation carried by him on the basis of allegations against the respondent that they were selling biscuits in packets and packed conditions while in their returns of income-tax they have falsely shown them as sold in loose condition. The above order of assessment passed by the Sales Tax Officer on 25 2-1975 was a consent order in the following terms:- "Sales tax assessment in regard to loss and packed biscuits should be completed on the basis of return filed by the assessee. Sales tax shall be separately charged at 20% on the following sales:- Sales tax assessment year 1971-72 Rs.1,00,000 Sales tax assessment year 1972-73 Rs.2,00,000 Sales tax assessment year 1973-74 Rs.5,00,000 It appears that on the basis of the same complaint, which after investigation resulted in the above-noted consent order, the Sales Tax Officer again issued a notice under section 28 of the Sales Tax Act threatening to reopen the case for the aforesaid assessment years. The notice was contested by the respondent both on merit as well as on legal ground. It was specifically urged before the Assessing Officer that there was no justification for reopening of the case as no new material is available before him. The objections raised by the respondent were however, overruled by the Sales Tax Officer and an additional assessment was made in pursuance of the notice issued to them under section 28 of the Sales Tax Act on 30th November, 1976. The respondent preferred an appeal against the above order before the Appellate Assistant Commissioner who by his order dated 20th July, 1977 set aside the order of Sales Tax Officer holding positively that there was no new material available before Sales Tax Officer to justify reopening of the case which was decided with the consent of assessee after holding protracted investigation in the case by the department. The department filed an appeal before the Tribunal against the order of Appellate Assistant Commissioner but the some was dismissed on 20th July, 1977. The Appellate Tribunal like the Appellate Assistant Commissioner, also reached the conclusion that there was no new material available before the Sales Tax Officer justifying re opening of the case. The present reference has been filed under section 17(2) of the Sales Tax Act by the department referring us the above mentioned two questions for decision. With regard to the second question of the reference we may mention that this point stand decided by the decision of this-Court in the, cases of The Commissioner of Sales Tax, Karachi (East), Karachi v. Messrs Chaudhrv Farzand Ali 1983 P T D 27f, Commissioner of Sales Tax, Karachi v. Messrs Pakistan Fisheries Ltd.. Karachi 1985 P T D 282 and Commissioner of Income-tax Sales Tax, East Zone, Karachi v. O.K. Motors Co.' Karachi 1985 P T D

513. In all the above noted cases it has been held that the period of 35 days mentioned in the form of the notice prescribed by C.B.R. under the Sales Tax Act could not be curtailed by the Sales Tax Officer and we do not see any reason to take a contrary view and answer these questions accordingly. With regard to the first question of the reference we may only say that no question of law as such arises in the above question No.1 in view of the categorical finding by the Appellate Assistant Commissioner as well as Appellate Tribunal on the factual aspect of the case that there was no fresh material available before Sales Tax Officer for reopening of the case under section 28 of the Sales Tax Act. We, therefore, hold that the question No.l of the reference raises no question of law for our decision in view of the above observation. We accordingly dismiss all the above-noted three cases but will make no order as to costs. We may mention here, that today only Sales Tax Case No. 37 of 1979 was fixed for hearing before us but the learned counsel for the department as well as respondent jointly stated that two other cases namely S.T.C. No. 28 and S.T.C. No. 31 of 1979 which are on the same point between the same party are also pending but they are not fixed today. We accordingly, with the consent of the learned counsel for the parties called the other two cases and heard them alongwith S.T.C. No. 31 of 1979. M.BA./C-79/K Order accordingly.