2023 PLP 393 (PTD)

Through instant Reference Application, under Section 47(1) of the Sales Tax Act, 1990 ("the Act of 1990"), following question of law, asserted to have arisen out of impugned order dated 18,09.2014, passed by Appellate Tribunal Inland Revenue, Lahore Bench, Lahore ("Appellate Tribunal"), has been pressed and argued for our opinion:- "Whether under the facts and in the circumstances of the case the learned ATIR was justified to observe that the Deputy Commissioner Inland Revenue cannot exercise the powers of adjudication of sales tax case of the registered person in terms of SRO 555(I)/1996 dated 01.07.1996 on account of pecuniary jurisdiction, whereas the said SRO was issued in exercise of powers conferred under subsection (3) of section 11 of the Sales Tax Act, 1990 and the section 11(3) had been omitted vide Finance Ordinance, 2000, with consequent effect of redundancy of SRO 555(I)/96, dated 01.07.1996 too?"

3. Brief facts of the case are that, on receipt an information from Directorate of Intelligence and Investigation FBR respondent-taxpayer was found claiming illegal and inadmissible input tax adjustment amounting to Rs.46,53,699/- on the basis of fake invoices for the period July 2005 to February 2011 and involved in tax fraud. Show-Cause Notice was issued, which ultimately in passing order-in-original dated 02.08.2012. Being aggrieved, respondent-taxpayer preferred appeal before Commissioner Inland Revenue (Appeals), which was disposed of vide order dated 07.01.2013. Feeling aggrieved, respondent-taxpayer filed appeal before Appellate Tribunal, which was allowed in favour of respondent-taxpayer vide the impugned order dated 18.09.2014. The said order has been assailed by applicant-department through instant Reference Application.

4. Learned counsel for the applicant-department, at the very outset, is confronted with the fact that this Reference Application is barred by time and no sufficient explanation was furnished in this regard. Despite arguments at some length, he could not rebut that this Reference Application is barred by time.

5. Heard. Available record perused.

6. It has been vehemently argued by learned counsel for respondent-taxpayer that this Reference Application is barred by time for 03-months and 03-days and learned Legal Advisor for respondent-department could not rebut this fact. Even otherwise, the Office raised certain objections, which the applicant-department was required to remove before lapse of prescribed period and re-file the Reference Applications within the period of limitation provided by the law. However, record shows that this Reference Application was re-submitted on 08.04.2015, after the lapse of as many as 110-days, much beyond the period of limitation, therefore, the Reference Application is barred by time. Reference can be made to Asad Ali and 9 others v. The Bank of Punjab and others (PLD 2020 Supreme Court 736) and Muhammad Boota v. Basharat Ali (PLD 2014 Lahore 1).

7. It is also apparent from available record that Reference Application is not accompanied by application for condonation of delay and in absence whereof, delay cannot be condoned. The applicant-department cannot be allowed to reap and retain the benefit of its own negligence. Law on the subject is very clear that each and every day's delay is to be satisfactorily explained. Reference in this regard can be made to Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2007 PLC 64).

8. It is well settled that delay in filing proceedings could not be condoned lightly unless it was shown there were sufficient reasons causing the delay. Negligence does not constitute sufficient cause to condone delay. Party seeking advantage of section 5 of the Limitation Act, 1908, must satisfy the Court that it had not been negligent and had been pursuing the case with due diligence and care. The Government Department, on question of limitation, could not be treated differently from ordinary litigant as held by Hon'ble Supreme Court of Pakistan in Central Board of Revenue, Islamabad through Collector of Customs Sialkot Dry Port, Sambrial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCMR 307). This Reference Application, is decided against applicant-department.

9. Office shall send a copy of this order under seal of the Court of Appellate Tribunal as per section 47(5) of the Sales Tax Act, 1990. MH/C-31/L Reference dismissed.