1963 PLP 231 (PTD)

WAHEDUDDIN AHMAD, J.‑This order will dispose of Writ Petitions Nos. 615 of 1962 and 621 of 1962 in which a common question of law is raised.

2. In both the cases the petitioners have sought to challenge validity of the Sales Tax Act of 1951. In the first writ petition, Messrs Sharif Cotton Factory are aggrieved by the demand of Sales Tax under sections 10 and 12 of the above mentioned Act for the years 1956‑57 to 1961‑

62. In the second writ petition Messrs Noor Cotton Factory are also aggrieved by the demand of sales tax for the period from the 1st of April 1957 to the 31st of March 1958.

3. Mr. Syed Ali Raza, the learned counsel for the petitioners, has urged that the demand of the sales tax from the petitioners for the above‑mentioned period is illegal because the Sales Tax Act of 1951, under which it is claimed, is no longer in operation in Pakistan. The learned counsel contended that the notice of demand issued by the respondents in both the cases is ultra vires, without legal sanction and without jurisdiction. It was contended by him that the Sales Tax Act of 1951 ceased to have any effect after the 31st of March 1952 and the respondents are not competent to demand any sales tax from the petitioners.

4. This contention does not appear to us to be well‑founded. The Sales Tax Act of 1951 was enacted in the year 1951 by the Federal Legislature. It is not disputed that at the material time the said Legislature had jurisdiction to enact this legislation. The only contention raised before us is that at the time when the above‑mentioned enactment was passed, the Federal Legislature was empowered to legislate on the subject of "taxes on sale of goods" upto the 31st of March 1952 and therefore this legislation was of a temporary nature and ceased to have any effect after the said date.

5. The history of Legislation on the subject of "Taxes on Sale of Goods" does not support the contention of the petitioners. Formerly the subject of "Taxes on the sale of goods and advertise ment" was in the Provincial List at serial No. 48 of the Government of India Act. In 1948 the words "the sale of goods and on"' were omitted by the Government of India (Amendment) Act of 1948 unto the 31st of March 1950, and this omission from the Provincial List was further extended from the 1st of April 1950 upto the 31st of March 1952. These words were however finally omitted from the Provincial List with effect from the 1st of April 1952 under section 3 of the Government of India (Amend ment) Act, 1952. Side by side the Constituent Assembly inserted f Item No. 54‑B (Taxes on the Sale of Goods) in the Federal Legislative List). It further inserted a new section viz. section 140A in the Government of India Act in 1948. Under this constitutional provision of law the Federation was entrusted with the levy and collection of taxes on the sale of goods with a power to assign the revenue of this tax to the Provinces and to the Federated States within which that tax was leviable in any particular year. The Federation was further directed under this section to distribute the revenue of this tax amongst the Provinces and the Federated States in such a manner as may be prescribed by the Governor‑General. Item No. 54 and section 140‑A also in the first instance were to remain in operation upto the 31st of March 1950 and by a later amendment were to remain in force upto the 31st of March 1952. But in 1952 by section 3 of the Government of India (Amendment) Act of 1952 they became a permanent feature from the 1st of April 1952. Section 140‑A is in the following terms : "Taxes on sale of goods.‑Taxes on the sale of goods shall be levied and collected by the Federation, but such portion of the net proceeds in any financial year of any such tax as may be prescribed shall not form part of the revenues of the Federa tion, but shall be assigned to the Provinces and shall be distri buted amongst the Provinces in such manner as may be prescribed. In this section `prescribed' means prescribed by order of the Governor‑General." It is thus quite apparent that the Federal Legislature under the Above‑mentioned amendments in the Government of India Act from the year 1948 onwards had exclusive power to legislate on the subject of "Taxes on the sale of goods" under Item No. 54‑B of the Federal Legislative List. The contention of the petitioners counsel that the Sales Tax Act of 1951 was a temporary statute and expired on the 31st of March 1952 is not borne out by any provision of the said enactment. On the contrary the Sales Tax Act of 1951 was legislated as a permanent statute.

6. The petitioners' counsel's contention that the Federal Legislature in 1951 had no power to legislate on the subject of "Taxes on the sale of goods", a permanent statute, is devoid of all force. In the first place no such fetter was imposed on the power of the Federal Legislature. Secondly, merely because the Federal Legislature was empowered to legislate on the said subject at a particular time upto a particular period, it cannot be said that it did not possess the power to pass a permanent legislation. It is perfectly clear to us that the operation of a particular legislation on a particular subject will depend on the continuation of the power to legislate on such subject. In the present case this condition is fully complied with. On the 20th of March 1952 the Constituent Assembly by section 3 of the Government of India (Amendment) Act, 1952 made both Item No. 54‑B of the Federal Legislative List and section 140-A of the Government of India Act a permanent feature with effect from the 1st of April 1952. We are, therefore, satisfied that the Sales Tax Act of 1952 continued to remain in operation after the 31st of March 1952 because the power to legislate on this subject remained with the Federal Legislature and they also continued to enjoy the right to levy and collect sales tax in the whole of Pakistan.

7. The learned counsel has referred us to sections 7 and 9 of the General Clauses Act in support of his contention, but these provisions have no bearing on the present case. Section 7 deals with revival of repealed enactments and section 9 deals with commencement and termination of time in statutes. The question of repeal does nut arise in this case. Neither there is any new legislation on the subject from which the intention of implied repeal can be gathered nor is it a case of express repeal of a statute.

8. The contentions raised by the learned counsel are also hit by subsequent amendments made in the Sales Tax Act of 1951. 'This piece of legislation was amended from time to time in certain details by (1) section I of Act I of 1956 ; (2) section 15 of Act of 1957 ; (3) section 14 of the Finance Act, 1958 ; (4) President's Order No. 9 of 1958 ; (5) section 5 of Ordinance XV of 1959 ; (6) section 2 of Ordinance XXVIII of 1959 and (7) Ordinance XXXI of 1962. This clearly shows that the Federal Legislature and other Legislative authorities have throughout considered this legislation as operative and there must be very compelling reasons for us to take a different view in this respect.

9. Assuming for the sake of argument that the enactment in question expired on 31‑3‑1952, even then, in 1957 by section 15 of the Finance Act, 1957 (Act No. I of 1957) the following amendment was made in the Sales Tax Act, 1951 : "(1) For subsection (2) of section 1, the following sub section shall be substituted namely; `(2) It extends to the whole of Pakistan'." On the decision of a Full Bench of this Court in Mst. Momina Khatoon v. Government of Pakistan and another (P L D 1958 Kar. 530) it can be legitimately held that the effect of this amendment was that the Sales Tax Act of 195 t was brought to life from the date of its operation, namely 4‑3‑1957.

10. Lastly, it may be pointed out that in view of the provi sions of section 133'(2) of the present Constitution it is doubt ful whether this Court is competent to call in question the validity of the Sales Tax Act on the ground that the Legislature by whom it was made had no power to make it.

11. As a last resort the petitioners' counsel urged before us that several writ petitions on this question are pending before this Court at Lahore and we should as a matter of courtesy admit these writ petitions for final hearing. This by itself is no ground for admission of the writ petitions. The validity of this enactment was considered by a Division Bench of this Court at Lahore in the case of Messrs Khaliq and Najam Company v. Sales Tax Officer, B‑Ward, Lahore (P L D 1959 Lah. 915), and though the ground before us was riot raised in that case but all the same it was held in that case that the Sales Tax Act (III of 1951) continues in force by Article 224 of the 1956 Constitution of Pakistan. In these circumstances we are not satisfied about the prima facie case of the petitioners in respect of the various contentions raised by them.

12. In the result we find no force in these writ petitions and summarily dismissed them. Petitions dismissed.