2006 PLP (Trib (PTD)

CH. FARRUKH MAHMUD, MEMBER (JUDICIAL).

This appeal is against the Order-in-Original No. 23 of 2002, dated 28-2-2002 passed by the learned Collector (Adjudication), Lahore whereby a show-cause notice vide C. No. Collr (Adj)ST/LHR/2001/6709, dated 9-10-2001 was ordered to be vacated. The Revenue (appellant) has filed this appeal on 11-5-2004 against the said order-in-original.

2. The respondent has raised a preliminary objection urging that the instant appeal has been filed much after expiry of the period of limitation and has prayed that issue of limitation be taken up at the preliminary stage. Agreeing with the contention raised by the respondent, the parties were allowed to address arguments on this preliminary issue regarding limitation.

3. The admitted facts of the case are that the impugned Order-in-Original No. 23 of 2002 was passed on 28-2-2002 and the present appeal was presented on 11-5-2004 before the Assistant Registrar of this Tribunal. The prescribed period of limitation for filing of appeal is sixty (60) days as provided in section 46 of the Sales Tax Act, 1990. Thus the appeal is apparently barred by more than two years. However, the appellant has filed an application for condonation of delay wherein the appellant has sought condonation of delay in filing the instant appeal on the following two grounds only: (a) That the concerned file was misplaced by the appellant/ department because of shifting of appellant's office from Shadman Colony to Fane Road, Lahore. (b) Frequent transfer of the concerned officers.

4. The said application for condonation of delay is not supported by any valid affidavit. The one attached with the application is unattested which cannot be treated as an Affidavit in the eye of law.

5. The learned counsel for the appellant during the course of arguments sought condonation of delay on the above-said grounds and mainly relied on the following case-laws: (i) 2003 PTD 1329 Messrs Ashraf Dawa Khana v. Additional Collector. (ii) 2001 CLC 1825 Miss Reta v. Government of Sindh (iii) AIR 1988 Supreme Court 897 (iv) AIR 1936 Allahabad 666

6. On the other hand, the respondent has vehemently contested the application for condonation of delay. It was asserted that the alleged misplacement of the case files during shifting of the office from Shadman Colony to Fane Road, Lahore is totally untrue. The respondent has produced a copy of letter, dated 25-4-2003 written by appellant's office. The respondent has referred the following case-law in support of his contentions: (i) 2000 SCMR 1371 (ii) 2002 SCMR 1642 (iii) 2003 CLC 269 (iv) 1998 SCMR 307

7. We have heard the learned counsel for both the parties and examined the record. Before discussing the contention of the learned counsel, it is proper to examine the provisions of law relating to the filing of appeal before this Tribunal. The relevant provision is contained in section 46 of the Sales Tax Act, 1990 which is re-produced hereunder: "(46) Appeals to Appellate Tribunal.

(1) Any person including the Sales Tax Department, aggrieved by:

(a) any decision or order passed by a Collector or any Additional Collector of Sales Tax under sections 11, 36 or 45; (b) any order passed by the Collector of Sales Tax (Appeals) under section 45B; and (c) any order passed by the Board or the Collector of Sales Tax under section 45A. may, within sixty days of the receipt of such decision or order prefer appeal to the Appellate Tribunal. (2) The Appellate Tribunal may admit an appeal preferred after the period of limitation specified in subsection (1) if it is satisfied that there was sufficient cause for not presenting it within the specified period."

8. It is observed that the above provision of law permits the aggrieved person to file appeal within a period of sixty days of the receipt of such decision. Here aggrieved person includes the Sales Tax Department. It means that the sales tax department is to be treated as any other ordinary person and no preferential treatment can be given to the Sales Tax Department against an ordinary person. Further the provision of law as contained in subsection'(2) of section 46 gives discretion to the Tribunal in admitting an appeal filed after the period of limitation subject to satisfaction of the Tribunal coupled with sufficient cause for not presenting appeal within the prescribed' period.

9. The learned counsel for the appellant has contended that title appeal could not be filed in time because the concerned file was mis?placed due to shifting of the appellant's office from Shadman Colony, Lahore to Fane Road, Lahore and further due to frequent transfers of the concerned officers. On the other hand, the respondent has contended that the impugned order, dated 28-2-2002 was issued on 30-3-2002 and the office of the appellant was shifted on 1-5-2003. To substantiate his contention regarding shifting of the Sales Tax Collectorate from Shadman Lahore to 4-Fane Road, Lahore, the learned counsel for the appellant has filed a copy of letter bearing C. No. 161/GL/Admn/ Building/2002/105, dated 25-9-2003, issued by Deputy Collector (Head Quarter), Lahore. In view ,of this letter, the learned counsel for the respondent has vehemently asserted that limitation period of 60 days had expired in the year, X002 whereas the office was shifted after 30-4-2003 and resisted question as to how this shifting of office in April, 2003 was a hindrance in filing of this appeal. The appellant had nothing to rebut this factual position. The second contention of the respondent was frequent transfer of concerned officers. In this regard, it was argued by the learned counsel for the respondent that firstly no evidence of frequent transfer of concerned officers has been produced/filed. Secondly the transfer of officers do not and cannot materially affect the process for filing the appeal for such .a long period. The learned counsel for the appellant also raised another plea that due to fraud, question of limitation doe not arise. To counter this assertion, the respondent has simply relied that fraud has neither been alleged nor stated in the application for condonation of delay and mere oral assertion of fraud is of no help to the appellant.

10. The learned counsel for the respondent has also asserted that the appellant is not serious in seeking condonation of delay as the appellant has not even filed a proper affidavit along with application for condonation of delay. This attitude of the appellant reflects their interest and extent of diligence in persuasion of this appeal. Finally the appellant relied upon the case-law referred herein above. Now we proceed to examine the above-cited case-law in order to reach at some conclusion in this appeal.

11. The first reference i.e. 2003 PTC 1329 (Lahore High Court). Messrs. Ashraf Dawakhana v. Additional Collector Collectorate of Sales Tax, Gujranwala. In this case, it was held by the Hon'ble High Court that in revenue matters, the prayer for condonation by an assessee/citizen should all the more be considered sympathetically. There was a delay of 52 days in filing of appeal by an assessee, which was condoned being somewhat harsh and unjust. The principle laid down in this citation is not applicable in the present case because the appellant is not an assessee and further there is a delay of more than two years which is without any sufficient cause or explanation.

12. The second reference i.e. 2001 CLC 1825 Miss. Reeta v. Government of Sindh and others. In this Ruling it was held that where allegations of fraud and forgery are made or order is based on fraud or forgery such order is to be treated as void and nullity and against such decree no limitation would run. This ruling is not applicable in the appeal in hand as there is no such allegation of fraud or forgery.

13. The third reference i.e. AIR 1988 Supreme Court

897. In this cited case, the circumstances leading upto and necessitating a prayer for condonation of delay before the Court were aspersion on the probity and rectitude of the conduct and good faith of the government pleader entrusted with the filing of the case. It was held that each case will have to be considered on the particularities of its own special facts. Generally delay in the interest of justice where no gross negligence or deliberate in action or lack of bona fides is imputable to the party seeking condonation of delay. It has been pointed out by the respondent that in the said cited case-law, the specific allegations i.e. trust in law officers who were entrusted the case more pleaded. Whereas in the present case no distrust in the office of the appellants has been attributed at all. Hence, the said case-law is on different footing and is not applicable in the circumstances of the present appeal. The fourth reference i.e. AIR 1936 Allahabad

660. This citation is also not applicable in the present case as application for condonation of delay has been made in the case whereas in the said citation, it was held that the appeal should not be dismissed on the plea that application under section 5 of the Limitation Act has not been filed.

15. On the other hand, the case-law relied upon by the respondent is discussed in the following lines with reference to the appeal in hand. First reference i.e. 1988 Supreme Court Monthly Review 307, it has been held that Government on question of limitation could not be treated differently from ordinary, litigant. Where Government in spite of enormous resources and facilities at its disposal, continued to delay filing of cases in time detrimental to its own interest, opposite-party could not be penalized for its negligence. Each day of limitation must satisfactorily be explained which petitioner had failed to do. Petition for Leave to Appeal being barred by 217 days and there being no sufficient ground for condonation of such delay same must fail on ground of limitation.

16. Second reference i.e. 2000 Supreme Court Monthly Review 1371. It has been held that delay in filing of revision petition on the ground that file and record of the case was misplaced was not a sufficient cause for condoning the delay.

17. Third reference i.e. 2002 SCMR

677. Collector, Land Acquisition, Chashma Right Bank Canal Project, WAPDA, D.I. Khan and others v. Ghulam Sadiq and others. Wherein it was held that the Government cannot be treated differently than an ordinary litigant while considering the question as to whether sufficient cause has been shown for condonation of delay in an application under section 5 of the Limitation Act, 1908. It has been further held in this citation that plea that decision on merits suffered from any illegal infirmity, loses all its significance when considered in juxtaposition with letter and spirit of the law requiring Court/Forum concerned to dismiss application/petition/appeal, if it is beyond time within the contemplation of section 3 of Limitation Act, 1908.

18. In view of the above discussion and taking into account all the circumstances of this appeal, it is held that there is so much inaction and extent of negligence as to induce or not to exercise our discretion to condone the delay in presenting this appeal.

19. Resultantly, this appeal is dismissed being time-barred. S.A.K./88/Tax(Trib.)??????????????????????????????????????????????????????????????????????????? Appeal dismissed.