MESSRS B.P. BISCUIT FACTORY LTD., KARACHI VS THE COMMISSIONER OF INCOME-TAX, CENTRAL ZONE A, KARACHI
1991 P T D 835
[Karachi High Court]
Before Mamoon Kazi and Salahuddin Mirza, JJ
Messrs B.P. BISCUIT FACTORY LTD., KARACHI
Versus
THE COMMISSIONER OF INCOME-TAX, CENTRAL ZONE A, KARACHI
I.T.R. No.36 of 1983, decided on 04/04/1991.
Sales Tax Act (III of 1951)---
----S.27---Refund---Factum of payment of sales tax of which the refund was claimed was not proved---No refund, held, could be claimed without providing the actual payment of sales tax amount, of which refund was claimed.
Messrs Maqbool & Co. Ltd. v. Commissioner of Sales Tax (Central), Karachi 1985 P T D 36 fol.
Iqbal Naeem Pasha for Applicant.
Shaikh Haider for Respondent.
Date of hearing: 4th April, 1991.
JUDGMENT
MAMOON KAZI, J: --The applicant which is a private limited Company, is engaged in the manufacture and sale of biscuits. The applicant claimed refund of sales tax on local purchase of liquid glucose amounting to Rs.2,47,896 and Rs.2,68,647 respectively in the assessment years 1976-77 and 1977-78. Similar refunds were claimed on local purchases of milk-powder amounting to Rs.79,911 and Rs.68,867 respectively for the said years. The applicant failed to produce any evidence in respect of the payment of the sales tax on its purchases and consequently the applicant's claim for refund was rejected by the Sales Tax Officer. The applicant filed an appeal before the learned Assistant Commissioner but without any success. The applicant's appeal before the learned Income-tax Appellate Tribunal also failed for the same reasons. Consequently, the following question has been referred to this Court for its opinion by the learned Income-tax Appellate Tribunal at the instance of the applicant:--
Whether refund of sales tax included in the price paid by the applicant for purpose of "Liquid Glucose" and "Milk-powder" was correctly refused by the learned Appellate Tribunal?"
2. Mr. Iqbal Naeem Pasha, learned counsel for the applicant has invited our attention to the judgment of this Court in the case of Messrs Maqbool & Co. Ltd. v. Commissioner of Sales Tax (Central), Karachi (1985 P T D 36) wherein an identical question had been referred to this Court for its opinion. The following observations made in the said case may be reproduced with advantage:
"It may be pertinent to point out that the factum of payment of the sales tax, of which the refund was claimed by the applicant was not proved as a matter of fact either before the Income-tax Officer, or before the assistant Appellate Sales Tax Commissioner or before the Income-tax Appellate Tribunal. It may also be pertinent to mention that it is the case of the respondent that till the decision of the Supreme Court in the case of Messrs Noorani Cotton Corporation and another v. Sales Tax Officer, A-Ward, Lyallpur and another 1965 P T D 273 (which was decided on 10-11-1964), the department and the manufacturers of the cotton-seed Oil and the Vegetable Ghee were under the misapprehension that no sale tax was payable on Cotton-seed Oil. Be that as it may, we are even otherwise inclined to hold that under subsection (1) of section 27 of the Act no refund can be claimed without proving the actual payment of the sales tax amount, of which refund is claimed."
3. Since the matter has already been dealt with by another Division Bench, we also hold accordingly and for the same reasons as stated in the said judgment. The question is, therefore, answered in the affirmative. The parties are left to bear their own costs.
M.BA./B-193/K Question answered.