2006 PLP 310 (PTD)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.

The order sheet dated 18-5-2004 shows that the question of law which was found requiring consideration was as follows: "Whether the Department had recovered the entire sales tax etc., from Supplier as well as from the Appellant and whether it is .a case of double taxation" Heard Mr. Aziz A. Shaikh, learned counsel for the Appellant, and Mr. Raja Muhammad Iqbal learned counsel for the respondents. We have asked Mr. Aziz A. Shaikh to point out the finding of Tribunal giving rise to the above question of law. After going through the impugned order, passed by the Tribunal, learned counsel has conceded that there is no finding of the Tribunal on this point. He has, further, conceded that no such plea was raised before the Tribunal. He has stated that plea of double taxation was not raised before the Tribunal because at that time it was not within the knowledge of the Appellant that the Department has recovered the tax from Supplier Messrs Al-Hamd Textile Mills also. According to Mr. Aziz A. Shaikh, this fact came to the knowledge of the Appellant after decision of the Customs, Excise and Sales Tax Appellate Tribunal impugned in this appeal. Mr. Aziz A. Shaikh has submitted that it is a pure question of law and can be raised at any stage and also arise out of transaction with Al-Hamd Textile Mills. We are not persuaded to agree with the submission for the reason that it is specifically provided in section 47 of the Sales Tax Act, 1990 that an appeal shall lie to High Court in respect of any question of law arising out of an order passed by the Tribunal under section

46. It is advisory jurisdiction of this Court and is not to be equated with a civil or criminal appellate jurisdiction in which this Court does not exercise advisory jurisdiction but the normal appellate jurisdiction. Whenever any Court exercises normal appellate jurisdiction it can exercise all the powers which are vested in forums below for the reasons that the appeal A is continuation of the original proceedings. However, while exercising advisory jurisdiction the provisions of law under which the jurisdiction is exercised is to be kept in view and the law clearly provides that an appeal shall lie in respect of any question of law arising out of an order under section 46 of the Act, passed by the Appellate Tribunal. It nowhere provides that any question of law arising out of the transaction between the two parties shall give right of appeal to a party or jurisdiction to this Court. Subsection (5) of the section 47 of the Act is very clear on the point that the jurisdiction exercised by this Court is advisory in nature. It is provided therein that upon hearing of appeal High Court shall decide the question of law raised therein and shall deliver judgment thereon specifying the grounds on which such judgment is based and shall send a copy of the judgment under the seal of the Court to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case in conformity with such judgment. There is no ambiguity in law which provides that when appeal is preferred before this Court the effect is that the appeal before the Tribunal shall not be deemed to have been finally disposed of and shall be finally disposed of when the opinion of this Court is delivered in exercise of advisory jurisdiction whereafter the Tribunal shall pass such orders as are necessary to dispose of the case in conformity with such judgment. If a plea is not raised before a Tribunal it shall not be deemed to be pending before the Tribunal and in such situation there is no question of deciding the case in accordance with the judgment of this Court. The Tribunal can decide the case in respect of the issues over which it has seisin and not the issues which were neither raised before it nor were taken cognizance of its own. The plea taken by Mr. Aziz A. Shaikh is applicable to the civil and criminal appeal where this Court exercises the normal appellate jurisdiction and not the advisory jurisdiction. In exercise of normal appellate jurisdiction this Court can itself set aside the order appealed against or modify the same or amend the same or remand the case for purpose specified in the order. But in case of advisory jurisdiction, the final order is to be passed by the Tribunal itself in conformity with the judgment of this Court which shall decide the question of law raised in the appeal in accordance with the provisions contained in section 47(1), which provides that it shall arise out of an order under section 46, specifying the grounds on which it is based. The scope of advisory jurisdiction is limited to the extent of expressing opinion whether the finding given by the Tribunal is in accordance with the law or otherwise. In case there is no finding of the Tribunal there is no question of giving any opinion in negative or affirmative. The admitted position is that the question of double taxation was neither raised before the Tribunal nor decided and consequently the appeal in respect of such issue is not maintainable in terms of section 47 of the Sales Tax Act, 1990. The appeal stands dismissed as not maintainable and we decline to answer the question on the point of double taxation. Before parting with this order we would like to observe that this appeal has been dismissed and we have declined to answer the question in respect of double taxation for the reason that it is not within the parameters of section 47 of the Sales Tax Act, 1990, but it shall not have the effect of depriving the appellant from pursuing the other remedies available to him in law. M.H./ T-38/K????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.