P L D 1966 (W (PLP)

(c) Constitution of Pakistan (1962), Art. 98-Taxability of particular goods under Sales Tax Act (III of 1951)-Remedy

Mere fact that assessee will have to deposit over rupees two lacs before getting redress from authorities mentioned in Act-No ground for taking recourse to Art. 98-Sales Tax Act (III of 1951), Ss. 14, IS, 16 & 17 read with Ss. 3 (1) &

10. The mere fact that the petitioner-company will have to deposit over two lacs of rupees before getting redress from the authorities, mentioned in the Sales Tax Act, is no ground for taking recourse to Article 98 of the Constitution. The Legislature has safeguarded in almost all the Acts, where revenue is to be realized, that the mere appeal or revision will be no ground to stay the realization of revenue. This is for good ground as otherwise the machinery of the Government will not be able to work. Article 98 of the Constitution, cannot, in the circumstances of the present case, be used to defeat the provision of other Acts, under which the revenue has to be collected, so as to stop the working of the machinery of the Government. Article 225 of the Constitution says that all laws in force shall continue to be in force. If petitions under Article 98 are entertained iii this way on the ground that the petitioner has to comply with the requirements of other laws on the subject, then it will tantamount to stop the operation of those laws and to defeat their provisions. Article 98 cannot be resorted to for such an end. The remedy under Article 98 cannot be utilized as a substitute for the usual mode of redress provided in the relevant law on the subject. Kandhari Oil Mills v. Excise and Taxation Commissioner, Punjab A I R 1953 Punj. 245 and Bharam Chand & Brothers v. Excise and Taxation Commissioner, Jullundur A I R 1953 Punj. 27 ref. Raza Kazim for Petitioner. Date of hearing: 8th December 1965. K. E. CHAUHAN, J.-This is a Petition under Article 98 of the Constitution praying that the .respondents (Central Board of Revenue and Sales-tax Officer) be ordered to refrain from illegally demanding the so-called sales-tax from the petitioner on mazri yarn out of which the petitioner company manufacture mazri cloth. The preliminary question that has to be considered is whether the petitioner has any other adequate remedy. Mr. Raza Kazim, the learned Advocate for the petitioner, submits two grounds in support of the contention that there is no other adequate remedy. He submits in the first place that the Central Board of Revenue has, in reply to a representation made by the petitioner-company, written that mazri cloth is taxable. He, therefore, submits that the Appellate Authority being subordinate to the Central Board of Revenue could not go against the interpretation put by the Central Board of Revenue that mazri yarn is taxable. In the second place, the learned Advocate submits that the appeal or revision could not be adequate remedy, as the petitioner could not avail of the same without depositing the tax which will be over rupees two lacs. After giving careful consideration to the submissions of the learned Advocate for the petitioner, we have come to the conclusion for the reasons which will be presently mentioned that the petitioner must pursue the remedy which is provided under the Sales Tax Act. The Sales Tax Act of 1951 makes an elaborate provision for appeal, revision and reference to the High Court. In almost similar way, as the Income-tax Act, an appeal is provided under section 14 to the Appellate Assistant Commissioner and thereafter if any one is aggrieved of an order passed by the Assistant Commissioner, he can go to the Appellate Tribunal under section 15 of the Sales Taxi Act. The appellate Tribunal is the same, which is appointed under the Income-tax Act of 1922. There is a provision also fort revision to the Income-tax Commissioner under section 16. , Lastly, under section 17 of the Act reference can be made tot High Court. This to our mind is a very elaborate machinery where the question of taxability over mazri yarn can be agitated.) The mere fact that the Central Board of Revenue has, on al representation by the petitioner-company, given its opinion that mazri yarn is taxable, is no ground to oust the jurisdiction of the) Appellate Assistant Commissioner, the Commissioner the Appellate Tribunal or of the High Court under the relevant provisions of the Sales Tax Act. The Appellate and Revisional Authorities and the High Court can ignore the reply of the Central Board of Revenue sent to the petitioner-company. The reply of the Central Board of Revenue has been procured by the petitioner-company itself and it by its conduct cannot set at naught the whole machinery of appeals and revisions etc. Plea 1 of want of adequate remedy is not available where any assumed difficulty in pursuing that remedy is a creation of the petitioner himself, as for example, the negligence of a party in a given case or its own representation to an authority which had no jurisdictions to hear its appeals or revisions etc.

2. The mere fact that the petitioner-company will have to deposit over two lacs of rupees before getting redress from the authorities, mentioned in the Sales Tax Act, is to our mind no ground for taking recourse to Article 98 of the Constitution. The Legislature has safeguarded in almost all the Acts, where revenue is to be realized, that the mere appeal or revision will be no ground to stay the realization of revenue. This is for good ground as otherwise the machinery of the Government will not be able to work. Article 98 of the Constitution, to our mind, cannot, in the circumstances of the present case, be used to defeat the provision of other Acts, under which the revenue has to b C collected so as to stop the working of the machinery of tile Government. Article 225 of the Constitution says that all laws in force shall continue to be in force. If petitions under Article 98 arc entertained in this way on the ground that the petitioner has to comply with the requirements of other laws on the subject, then it will tantamount to stop the operation of these laws and to defeat their provisions. Article 98 cannot be resorted to for such an end. The remedy under Article 98 cannot be utilized as a substitute for the usual mode of redress provided in the relevant law on the subject. 'File view that we have taken was also taken in Kandhari Oil Miltv v. Excise and Taxation Commissioner Punjab (A I R 1953 Punj. 245), which says, "jurisdiction to question assessment otherwise than by use of the machinery expressly provided by East Punjab Sales Tax Act XLVI of 1948, is inconsistent with the statutory obligation to pay under section

29. If the petitioners do not avail themselves of it, then the High Court would not interfere under Article 226." Again in Blraram Chand & Bros. v. Excise and Taxation Commissioner, Jullundur (A I R 1953 Punj. 27), it was held: "An application for writ so as to short-circuit the procedure provided by the Act is not allowable. Under section 21 East Punjab Sales Tax Act (XLVI of 1948), it is open to the assessee to go in revision to the Financial Commissioner and if he is not satisfied with the decision of the Financial Commissioner he can have the case stated to the High Court under section 22 of the same Act. In these provisions a more appropriate remedy is provided for by the Act itself, but if the petitioners did not avail themselves of it, then the High Court would not interfere under Art. 226."

3. For the above reasons, we will not entertain this petition. The petition is accordingly dismissed in limine. S. Q. Petition dismissed in limine.