2003 PLP 1789 (PTD)

Iram Ghee Mills v. Income Tax Appellate Tribunal 1998 MLD 3835 and The Lungla (Sylhet) Tea Co. Ltd. v. Commissioner of Income tax, Dacca Circle, Dacca 1970 PTD 872 ref. Zubair Mehmood for Appellant. A. Karim Malik for Respondents. In this further appeal under section 47 of the Sales Tax Act, 1990 directed against an order of the Customs, Excise and Sales Tax Appellate Tribunal, Lahore dated 2-9-2002, following questions of law are claimed to have arisen:-- (i) Whether on the facts and circumstances of the case the learned Tribunal was justified to hold that provisions of S.R.O. 578(I)/1998, dated 12-6-1998 pertaining to input on diesel were not. iii conflict with any substantive provision of the Sales Tax Act, 1990? (ii) Whether on the facts and circumstances of the case the learned Tribunal was justified to hold that the Federal Government was empowered to-specify goods under section 8(1)(b) of the Sales Tax Act, 1990 on which input tax was not admissible in contradiction to section 8(1)(a) of the Act?

2. On hearing the submissions made at the bar by the parties at pre admission stage we are of the view that both questions as framed cannot be said to raise a substantial legal controversy between the registered person and the Revenue. The issue if diesel oil is stock in trade of a particular registered person is essentially a question of fact and cannot be converted into one of law merely by use of the phraseology which is usual to frame of questions of law for reference to this Court.

3. It will be seen that the provisions of section 47 of the Sales Tax Act, 1990 providing for appeal to this Court are similar to those introduced in the late Income Tax Ordinance, 1979 as section 136 w.e.f. 1-7-1997. These provisions were subsequently repealed on 30-6-2000. During the period these provisions were inforce in a case reported as Iram Ghee Mills v. Income Tax Appellate Tribunal (1998 PTD 3835) this Court found that even after amendment in the provisions the appellate jurisdiction conferred by the amended provisions was not different from the reference jurisdiction earlier enjoyed this Court under section 136 of that Ordinance. Since the said amended provisions in the late Income Tax Ordinance, 1979 and those contained in Sales, Tax Act, 1990 as section 47 are identical, same rule of interpretation needs to be applied.

4. It will also be noted that reference jurisdiction of this Court is different from the appellate jurisdiction as interpreted by their Lordships of the Hon'ble Supreme Court in re: The Lungla (Sylhet), Tea Co. Ltd. v. Commissioner of Income Tax Dacca Circle Dacca (1970 PTD 872). In that case the Hon'ble Supreme Court held that every question of law need not be referred to the High Court and that only a question leaving some substance needed to be so referred.

5. Since, as observed earlier, both questions as reproduced above do not raise a substantial legal controversy between the parties, we will decline to answer.

6. Appeal dismissed in limine. S.A.K./R-219/L Appeal dismissed.