2021 PLP 1568 (PTD)

AGHA FAISAL, J.

The crux of the present determination is whether the petitioners have an actionable vested right to seek their grievance addressed vide alternate dispute resolution ("ADR"), pursuant to section 47-A of the Sales Tax Act, 1990 ("Act"), notwithstanding pending proceedings before the learned Appellate Tribunal Inland Revenue ("ATIR") initiated by the petitioners themselves. The subject petitions were argued conjunctively on the common issue and were dismissed vide a common order, dated 23.12.2020. These are the reasons for our aforementioned order.

2. Briefly stated, the petitioners were served with show-cause notices, in respect whereof orders in original were also rendered requiring the petitioners to pay allegedly evaded sales tax and penalty. The orders in original were assailed before the Commissioner Appeals, and the said appeals were dismissed. The dismissal of appeals was challenged before the ATIR and in such proceedings stay applications were also preferred. The applications were dismissed by the ATIR and post institution of proceedings before this Court, the stay applications were heard afresh and dismissed again. While the appellate proceedings remain pending before the ATIR, the petitioners preferred applications for resort to ADR. The said applications, though initially entertained, were dismissed upon the premise that criminal proceedings are pending against the petitioners. The present petitions insist that the matter/s be referred to ADR and that recovery proceedings may also be suspended in the interim period.

3. The petitioners' counsel pleaded entitlement to ADR, as of right, and relied upon Attock Petroleum1 to bulwark his submissions. The respondents' counsel argued to the contrary and submitted that the authority relied upon did not entitle the petitioners to abjure the dispute resolution hierarchy, invoked of their own volition, in an effort to delay / defeat the due process of law.

4. We have appreciated the arguments of the respective learned counsel and considered the law to which our surveillance was solicited. The question before us is whether the petitioners have an actionable vested right to seek their grievance addressed vide ADR.

5. It is considered appropriate to discuss the implication of Attock Petroleum at the very onset. The honorable Supreme Court observed that the relevant scheme of ADR was envisaged to settle fiscal disputes without the intervention of court; however, the same was not amenable for adjudication of criminal liability. The reference to criminal liability was in relation to that arising pursuant the relevant fiscal statutes; however, the said pronouncement did not confer any right upon a party to unilaterally insist upon the adjudication of a lis via ADR. Therefore, reliance of the petitioners upon the said authority does not augment their position in the question before us.

6. Section 47-A2 of the Act envisages recourse to ADR, subject to the terms and conditions delineated therein. The statutory provision is qualified and does not confer an inalienable right upon a party to pick and choose fora. On the contrary the provision provides for dissolution of the constituted committee, leaving the matter to be decided by the court / appellate authority, inter alia if the matter is not resolved within a stipulated time.

7. In the present facts and circumstances3 a show-cause notice was issued on 18-12-2018, culminating in an order in original dated 23.01.2019. The appeal there against was dismissed vide order dated 03.05.2019, where after the same was assailed before the ATIR on 17.05.2019 (the proceedings in respect whereof remain pending). Successive stay applications were dismissed by the ATIR on 26.06.2019 and 16.10.20194 and thereafter the request for ADR was preferred on 06.12.2019. Per respondents' counsel, further proceedings in respect of recovery remain stayed pursuant to ad interim orders obtained in the present petitions.

8. Learned counsel for the petitioners has been unable to demonstrate any vested right before us to insist upon adjudication via ADR, moreover, when recourse thereto was only sought upon conclusion of the proceedings particularized supra. No case was made out before us to restrain proceedings before the ATIR, initiated by the petitioners themselves. It is thus our considered view that the petitioners have been unable to advance any cogent grounds to abjure the statutory dispute resolution mechanism; however, they shall remain at liberty to seek appropriate redress if aggrieved by the findings of the ATIR.

9. In view of the reasoning herein contained, we find the listed petitions to be devoid of merit, hence, the same, along with pending application/s, were dismissed vide our short order dated 23.12.2020. These are the reasons for the aforementioned short order. KMZ/A-81/Sindh Petitions dismissed.