2011 PLP (Trib (PTD)

Registered Person has challenged rejection of refund relating to tax periods November, 2004 and May, 2004 which was upheld by Collector (Appeals) vide Order-in-Appeal No. 1067 of 2008 dated 21-2-2008.

2. Learned counsel for the appellant has raised legal objection, relying on law settled by superior courts that the Order-in-Original passed beyond 180 days from the date of show-cause notice is nullity in the eye of law. Time was allowed to the department for verifying from record as to whether any extention was obtained from F.B.R. or not. DR, who is assisted by Mr. Sarfraz Anjum, Auditor, submits that no extention after expiry- of 90 days was obtained. However, he has relied on subsection (2) of section 45 and asserts that the limitation to pass the Order-in-Original dated 30-12-2006 was extended by this subsection upto 31st December, 2006. Learned counsel for the appellant has opposed the submission and has relied on the case of Super Asia Muhammad Din Sons (Pvt.) Ltd., reported as 2008 PTD

60. He submits that limitation of 90 days if counted from the show-cause notice, dated 20th March, 2006, had expired on 20th June, 2006. He adds that the limitation provided in proviso to subsection (4) of section 11 is mandatory as held in number of judgments of different High Courts. He emphasized that the adjudicating officer's power under section 11 had ceased to exist after 90 days, therefore, the condition as stipulated in subsection (2) to section 45 that the adjudication of the case should be pending adjudication on 30th June, 2006 was not met.

3. We have considered rival arguments of the parties and perused the relevant provision and the judgment referred. Subsection (2) of section 45 is reproduced hereunder for facility:-- "(2) Notwithstanding anything contained in subsection (4) of section 11 and subsection (3) of section 36 or any other provision of the Act or any other law for the time being in force and notwithstanding any decision or judgment of any forum, authority or court, the time for adjudication in all the cases pending as on 30th June, 2006, shall be deemed always to have been extended up to 31st December, 2006, from the date on which the time limit prescribed under subsection (4) of section 11 and subsection (3) of section 36, expires."

4. Language of subsection (2) is non obstante in nature which, extends the period of limitation till 31st December, 2006 of only those cases which were pending for adjudication on 30th June, 2006. It is admitted position that the limitation of 90 days in the instant case had expired on 20th June, 2006. We are persuaded to agree with learned counsel for the appellant that adjudicating officer had lost its power to adjudicate, therefore, the case was not pending adjudication on 30th June, 2006. It is held that subsection (2) to section 45 is not applicable in .present case. The Order-in-Original passed on 30-1-2006 on a show-cause notice issued on 20th March, 2006 is held as time barred. Appeal is accepted. C.M.A./213/Tax(Trib.)???????????????????????????????????????????????????????????? Appeal accepted.