2003 PLP 1329 (PTD)

NASIM SIKANDAR, J.

The appellant claims to be a Hakeem by profession since 1983 at College Road, Gujranwala. Also admits to have been preparing Marrabbajat and other similar indigenous syrups to be used as medicines prescribed for his patients.

2. Adjudication proceedings were initiated against him on the report of Superintendent Sales Tax Gujranwala which resulted in passing of, an order-in-original, dated 4-10-1997 whereby he was found liable to pay an amount of Rs.2,48,963 as sales tax alongwith additional tax. Also a penalty of Rs.1,25,000 was imposed upon him under section 33 of the Sales Tax Act, 1990. The concerned Sales Tax Officer further directed him to be registered as an assessee for the period from March, 1996 to date under the relevant provisions of Sales Tax Act, 1990.

3. An appeal filed against the order-in-original was rejected by a Division Bench of the Customs Central Excise and Sales Tax Appellate Tribunal Islamabad Bench on 11-4-2002 after finding the same to have been preferred with a delay of 52 days. Learned Division Bench of the Tribunal noted that in the grounds of appeal the appellant had alleged to have received the order-in-original on 6-11-1999. However, at the same time a prayer was made for condonation of delay if there was any. In the view of the learned Members of the Tribunal in absence of an independent application for condonation of delay alongwith the reasons therefore, the appeal being barred by 52 days could not be entertained. Hence this further appeal under section 47 of the Sales Tax Act, 1990.

4. After hearing the learned counsel for the parties, we are of the view that the treatment meted out to the appellant by the learned Tribunal is somewhat harsh and unjust. Since the appellant had alleged receipt of impugned order on a particular day and also had at the same time, made a request for condonation of delay learned Members ought to have taken a lenient view of the same. Mere fact that there was no independent application for condonation of delay did not matter at all in the given situation.

5. The issue of limitation in tax matters was recently considered by us in C.A. No.323 of 2001 decided on 1-11-2001. In that order which was authored by one of us (Nasim Sikandar, J, we benefited from the various findings recorded by M.P. Thakkar, J. in re: Controller Land Acquisition v. Mst. Katiji and others (1987) 56 Tax 130 (SC India). His Lordship while speaking for the Court favoured a justice oriented approach by finding that:-- (1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late. (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (iii) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner. (iv) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (v) There is no presumption that delay is occasioned deliberately, or an account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (vi) It must be grasped that the judiciary is respected not on account of its power to legalize .injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

6. To the above list we added our view expressed earlier that in Revenue matters the prayer for condonation by an assessee/citizen should all the more be considered sympathetically. It is for the reason that, the notion of accrual of valuable right to an adversary after the lapse of limitation in ordinary cases of civil nature is not generally applicable to the matters of Revenue. In such cases since it is always the State against a citizen or assessee, the interest of immediate recovery cannot be described as accrual of a valuable right. In that order we also expressed the view that the kind of right coming into being by reason of default of a party, to approach a particular forum within a specified time is not an absolute right nor does it frustrate exercise of judicial discretion where ever a condonation is provided for in a statute. Further that a tax in any manner being an exaction of money from the subject and its recovery when becoming due being un-fettered by any limitation in terms of time, no valuable right could be said to have accrued to the Apposite party, the State.

7. Therefore, far the various reasons stated in that order we will allow this appeal. Resultantly the appeal filed by the appellant before the Tribunal shall be deemed pending to be heard and decided on merits in accordance with law after hearing both the parties. M.B.B./A-730/L Appeal allowed.