1982 PLP 14 (PTD)

NAIMUDDIN, ACTG. C. J.‑‑This is a constitution petition under Article 199 of the Constitution filed in the following circumstances. The petitioners, who are manufacturer, made an application under section 27 of the Sales Tax Act, 1951 (hereinafter called the Act) for refund of the two amounts of Rs. 6,544 and Rs. 27,892, to the Sales Tax Officer, Circle III East Zone), Karachi, respondent No.

2. It appears that before respondent No. 2 it was claimed that Rs. 6,544 were paid as sales tax on local purchases and Rs. 27,892, at the stage of importation of raw material. The respondent No. 2 by the order com municated on 2‑2‑1973, disallowed both the claims. As regards the claim for refund of Rs. 6,544, the respondent No. 2 held that the assessee could not produce any evidence of payment of sales tax. As regards the claim for refund of Rs. 27,892 he held that no defence surcharge had been paid on the sales tax. Aggrieved by the said order the petitioners filed an appeal, with the Income‑tax Appellate Tribunal, respondent No.

1. Paragraph 3 of the appeal reads as follows: "The Sales Tax Officer further rejected the claim of refund under section 27 of the Sales Tax Act, 1951. The main facts of the case are that the Appellant claimed refund of Rs. 6,544 on local purchase and refund of Rs. 27,892 at the stage of importation. The Sales Tax Officer disallowed this claim of refund in the head of defence Surcharge on duty since according to the false interpretation of the Sales Tax Officer. Defence Surcharge was not: paid on sales tax. This has been done despite the fact that the Customs Authorities realised customs duty and Defence Surcharge on the raw materials imported by the appellant. Hence the appellant rightly claimed that the benefit of section 27(1) of 'the Sales Tax Act, 1951, on the payment of Defence Surcharge on customs duty would have been adjusted." Alongwith the appeal the petitioners filed an application under section 15(3) of the Act, for condonation of the delay in filing the appeal but the Tribunal dismissed the same holding that the petitioners had failed to show sufficient cause for not presenting the appeal within the time allowed by the law. It may be mentioned that the ground shown in the application by the .petitioners for condoning the delay was that working partner of the petitioners was away from Pakistan for Umrah. It was however, admitted before the Tribunal that at the time of hearing there were three partners, two of whom were available in Pakistan and further that the working partner had left Pakistan on 11‑3‑1973. Aggrieved by the order of the Tribunal the petitioner has filed this Constitution petition with the following prayers: "Therefore it is respectfully prayed that the orders Annexures 'A' and `D' to the petition be declared to be illegal, not warranted by law and facts of the case and not tenable. Consequently/alternately the petitioner prays that the respondent No. 1 be directed and ordered to hearing and adjudicate the petitioners appeal Annexure `A' on merits." We have heard Mr. Nasim Faruqui Advocate for the petitioners and Mr. Iqbal Kazi Advocate for the respondents. It is submitted by Mr. Nasim Faruqui that the respondent No. 1 ha failed to exercise the jurisdiction vested in him on sound judicial principles. However, we are of the view that respondent No. 1 has exercised discretion properly and has correctly rejected the grounds on which condonation of the delay in filing the appeal was sought. We may repeat here that the only ground shown was that the working partner of the petitioners had gone for Umrah. It is not denied before us that the said partner had not gone to Umrah after the appeal had become time‑barred, therefore this ground was not available at all to the petitioners. Even otherwise the other reasons given by the Tribunal that other two partners of the petitioners were there to file the appeal is also cogent and sound. No explanation was given why they could not file the appeal. In these circumstances it cannot be said that the discretion has been exercised illegally or arbitrarily or not on the sound judicial principles. In the absence of such reasons discretion exercised by the Tribunal cannot be interfered with. If any authority is needed, reference may be had to a very recent decision of the Supreme Court in Irtrja Rasool Hashmi v. Water and Power Development Authority and another (P L J 1981 S C 17) wherein Nasim Hasan Shah, J. who delivered the order of the Court in paragraph 4 of the Report observed as follows:-- "The question whether limitation should not be condoned lies within the discretion of the authority before whom a matter is agitated and this discretion cannot be interfered with unless it has been exercised illegally or arbitrarily. This is not the case here. The result is that this petition must, therefore, fail which is dismissed hereby." We may yet refer to another decision of the Supreme Court in Abdul Ghani v. Settlement Commissioner and another (1974 S C M R 184) wherein Anwarul Haq, J. (as he then was) at pages 185 and 186 of the Report observed as follows:-- "As regards the delay, the power to condone the same vested in the Additional Settlement Commissioner acting in appeal, and the higher authorities in the Settlement hierarchy, or the High Court could interfere with the exercise of that discretion only if' it was shown that it had not been exercised on correct and judicious principles. The learned Additional Settlement Commissioner consciously considered the question of delay and refused to condone the same. He has given good reasons for the view be took in this behalf. The Deputy Settlement Commissioner's order was made on 29‑7‑1960 whereas an application; for a copy thereof was not made until the 5th of September, 1961. The copy was supplied within four days but the appeal was not filed until the lath of September, 1961. Even the application for review was filed in 1961, i.e. much after the period of limitation allowed for filing an appeal had expired. From these facts it is clear that the petitioner was grossly negligent in pursuing the remedy available to him under the law. Such being the case, the Additional Settlement Commissioner was justified in refusing to condone delay and to examine the petitioner's case on merits. The High Court was similarly right in refusing to interfere." Though it is not necessary to go into the merits of the case but on merits also the petitioners have no case for it is not disputed before us that no evidence was produced for payment of sales tax on local purchases on account of which refund of a sum of Rs. 6,544 was claimed. As regard claim of refund of Rs. 27,892 it was observed by respondent No. 2 that the amount was paid at customs stage under the head of defence surcharge on duty and not as sale tax or surcharge on the sales tax. This finding of respondent No. 2 is based on perusal of original Bill of Entry produce before him and examined by him. No evidence has been produced to the contrary even before us. Even in the memorandum of appeal only vague allegations were made, no particulars of alleged payments were given. We have already reproduced hereinabove paragraph 4 which is the most relevant paragraph in the appeal, which shows the nature of the claim and the vagueness in which the claim has been stated for no dates of payments or receipts numbers or other particulars are stated even at the appellate stage. We therefore, find no substance in this petition and accordingly dismiss it, however; leaving the parties to bear their own costs. Petition dismissed.