2010 PLP (Trib (PTD)

Through titled Sales Tax Appeals, the taxpayer-appellant has assailed the orders of the Addl. Collector (Adjudication), Faisalabad vide Order-in-Original No.494 of 2004 dated 16-10-2004.

2. Both the learned representatives appearing at the bar have been heard and record perused.

3. At the very outset, the learned AR on behalf of appellant vehemently contended that the orders passed by the Additional Collector are time barred in view of the provisions of section 36(3) of the Sales Tax Act, 1990. In this behalf, it is submitted by the learned AR that show-cause notice issued by the Deputy Collector was dated 30-6-2003, whereas the order-in-original passed by the learned Addl. Collector (Adjudication) is dated 16-10-2004, hence, the same is clearly passed beyond the limitation as prescribed under the law.

4. After appraising the facts obtaining on record and also after hearing the divergent views expressed by the rival parties and before reaching an inescapable conclusion, we deem it appropriate to reproduce proviso [3] of subsection (3) of section 36 of the Sales Tax Act, 1990 as under: Proviso [3] of subsection (3) of section 36 "Provided that order under this section shall be made within (one hundred and twenty) days of issuance of show-cause notice or within such extended period as ( the Collector) may, for reasons to be recorded in writing, fix, provided that such extended period shall in no case exceed [sixty] days."

5. After bare reading of proviso [3] of subsection (3) of section 36 narrated supra; we have noted that the show-cause notice was issued by the Department on 30-6-2003 and the order-in-original was passed on 16-10-2004, which is clearly beyond the time limit allowed in the statute. In case of expiry of the stipulated period mentioned in the statute book, the order passed by the Addl. Collector has no legal sanctity in the eye of law. In a judgment of the Hon'able High Court cited as 2009 PTD 762, the matter has already been decided. Relevant portion of the reported judgment cited supra is being reproduced as under:-- As is clear from the language of the above proviso, it has limited the scope of exercising of the jurisdiction after issuance of notice to basically 90 days or such extended period as the Collector after duly recording proper reasons in writing has fixed. However, it is again subject to the limitation in the manner that the said extension also cannot be more than 90 days. The period for deciding the order-in-original after issuance of a notice under section 36(1) and (3) thus is maximum 180 days including earlier 90 and extended 90 days. Obviously if the extension has been given by the Collector before the expiry of the earlier 90 days.

6. Having taken regard to the facts of the case in its entirety, and also going through the reported judgment referred supra, we have no ambiguity in our mind to declare that the order passed by the authority below is against the doctrine of natural justice and is not sustainable in the eye of law. Keeping in view of the aforementioned discussion, we vacate the order of the authority below and feel no hesitation to accept the assessee's appeal. Consequently, the appeal of the appellant is accepted on legal ground.

7. Ordered accordingly. S.A.K./166/Tax (Trib.) Appeal accepted.