2005 PLP 1308 (SCMR)

HAMID ALI MIRZA, J.--This civil petition for leave to appeal is directed against the judgment, dated 14-3-2002 in Special Sales Tax Appeal No.137 of 2000 (Collector Sales Tax and Central Excise (West), Karachi v. Messrs Amsons Textile Mills, Karachi) passed by learned Division Bench of the High Court of Sindh, Karachi whereby the said appeal was dismissed as per impugned judgment.

2. Brief facts of the case are that the respondents were issued show-cause notice dated 5-10-1998 by the Additional Collector Sales Tax (West), Karachi as to why sales tax/additional tax amounting to Rs.41,53,334 should not be recovered from them under section 36 read with section 34, of the Sales Tax Act, 1990 (hereinafter referred to as the said Act) and why penal action under section 33 of the said Act should not be taken against them for contravening the provisions of the Processed Fabrics Rules read with S.R.O.1185(I)/97, dated 20-11-1997 and section 7 of the said Act. The respondents were heard by the Additional Collector-II, who as per order dated 25-3-1999 did not vacate the show-cause notice issued to them who ordered to deposit forthwith the recoverable amount of sales tax and additional tax totally to Rs.41,53,334 in terms of section 36 read with section 34 of the said Act. The respondents filed an appeal before the Collector of Customs, Central Excise and Sales Tax (Appeals), South Zone, Karachi which was rejected as per order dated 19-11-1999. The respondent thereafter, preferred an appeal under section 46 of the said Act against the order passed by the Collector (Appeals) before the Customs, Excise and Sales Tax Appellate Tribunal (hereinafter referred as the Tribunal) at Karachi which was heard and allowed as per order dated 30-8-2000. The petitioner thereafter preferred Special Tax Appeal under section 47 of the said Act before the High Court of Sindh at Karachi which was dismissed in limine as per impugned judgment. The petitioner has now challenged the impugned judgment dated 14-3-2002 passed by the learned Division Bench of the High Court of Sindh at Karachi, through this civil petition for leave to appeal.

3. We have heard learned counsel for the petitioner and learned counsel for the caveator and perused the record.

4. The only contention of the learned counsel for the petitioner is that the impugned judgment of the High Court is not sustainable as no reason has been assigned for dismissal of the appeal and further demand of the petitioner with regard to the Sales Tax was legal which could not have been reversed by the Tribunal.

5. We do not find substance and merit in the said contention of the learned counsel for the petitioner.

6. The learned Tribunal has rightly interpreted S.R.O. No.1185(I)/97, dated 20-11-1997 wherein para.2 of the notification states as follows:-- "The above rates shall be applicable for the financial year 1996-97 to such registered persons to whom the fixed amount of Sales Tax (Processed Fabrics) Rules, 1995, were applicable during the financial years, 1995-96." The learned Tribunal at pages 4 to 6 of the impugned judgment has observed as under:-- "(8) .... There is no dispute that the appellant was subject to these rules during the financial year 1995-96. This simple, clear and unambiguous provision of law has been interpreted that such registered person "only" who continue to pay fixed. tax throughout the financial year 1996-97 will be entitled to its benefit. Since the appellant had switched over half way they are not entitled to the benefit of the said S.R.O. while interpreting as above. The learned Collector had not considered that during this period the fixed tax scheme could not have been legally enforced in view of the deletion of subsections (4) and (5) of section 3 of the Sales Tax Act, 1990. It means that benefit of the S.R.O. will be extended to those who had not obeyed the law, and those who obey the law shall be deprived of the benefit of an S.R.O. This cannot be the intention of the law-makers. (9) The S.R.O. was issued on 20-11-1997 after once again introducing subsection (4) of section 3 of the Act. The reason for issuance of the S.R.O. was that the matter remained a subject-matter of the decision with All Pakistan Textile Processors and Manufacturers Association (A.P.T.P.M.A.), which is a recognized association of textile processors. The demand of the association was for revival of fixed tax scheme for the textile processing units. There was continuous parlays with the authorities of C.B.R. and the Federal Government. The appellant, in line with other units, continued to pay the fixed amount of sales tax through submission of monthly returns and payment through treasury challans, as per past practice. Since the parlays with the Government continued the appellant though it fit to switch over to the normal regime of standard sales tax after the tax period of February, 1997. The appellant filed monthly returns from March, 1997 to June, 1997. (10) The notification in question was issued on 20-11-1997. The late issuance of S.R.O. itself lends support to the submissions of the learned counsel for the appellant that all was not going on well otherwise there is no reason as to why at the time of amendment of the Sales Tax Act the notification was not issued. The appellant switched over to normal regime on 1-3-1997 much before the issuance of the S.R.O. The rights and liabilities came into legal existence when the statutory law was amended and S.R.O. issued. The S.R.O. or notification is issued in furtherance . of the newly-amended law for compliance of the parties who are liable for payment of duties and taxes. In the peculiar nature of this case, when both sides i.e. Trading Association and the Government remained in negotiation and delayed the issuance of notification, both are at par. Now it cannot take a roundabout and inflict the taxpayer for that period which consumed in negotiation and the appellant switched over to normal regime on 1-3-1997. This rather shows the bona fide of the appellant."

7. We find that the learned Tribunal has given cogent and valid reasons in arriving at the conclusion and no other conclusion could have been drawn in view of the clear language of notification, hence the learned Division Bench of the High Court affirmed the finding of the Tribunal, therefore, no exception could be taken to the impugned judgment considering that there being no legal or factual infirmity in the order so also no substantial question of law of public importance is involved within the purview of sub-Article (3) of the Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973. Accordingly finding no merit in this petition, leave to appeal is declined and the petition is dismissed. M.H./C-22/S Petition dismissed.