Sales Tax Act (III of 1951)---

----S.28 & Form SST-24---Time prescribed for notice under S.28(2)---Thirty five days prescribed was not the minimum period for which the notices had to issue nor could the notices be invalidated in cases where the Sales Tax Officer had given himself a specific date, even though shorter of thirty-five days.- [Messrs Sunshine Dairies Ltd. v. The Commissioner of Income Tax STR No.11 of 1979 and M/s. Sunshine Dairies Ltd. v. Collector of Central Excise and Sales Tax STR No.81 of 1982 overruled].

Commissioner of Income Tax v. Sunshine Dairies Limited 1992 SCMR 1963 fol.

Messrs Sunshine Dairies Ltd. v. The Commissioner of Income Tax STR No.11 of 1979 and M/s. Sunshine Dairies Ltd. v. Collector of Central Excise and Sales Tax STR No.81 of 1982 overruled.

Nasrullah Awan for Applicant. Abdul Aziz Khan for Respondent.

Date of hearing: 11th February, 1993.

JUDGMENT

NASIR ASLAM ZAHID, C.J.---On the application of the Department under section 17(1) of the Sales Tax Act, 1951, the learned Income Tax Appellate Tribunal has referred the following questions for our opinion in respect of Assessment years 1967-68 to 1971-72:---

"(a) For Assessment year 1967-68:

Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the form of notice (SST-15) is mandatory and the curtailment of time as indicated in the prescribed form of notice, rendered the proceedings conducted thereunder void ab initio?"

(b) For Assessment years 1968-69 to 1971-72:

Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that assessment made for each of that years without invoking the provisions of section 28 was improper and illegal?"

2. We heard Mr. Nasrullah Awan, learned counsel for the Department and Mr. Abdul Aziz Khan, learned counsel for the respondent/assessee. This Court had in its earlier judgments in the cases of M/s. Sunshine Dairies Ltd. v. The Commissioner of Income Tax (STR 11/1979) and M/s. Sunshine Dairies Ltd. v. Collector of 'Central Excise and Sales Tax (STR 81/1982) had considered the question with regard to the time prescribed for a notice under section 28 of the Sales Tax Act in Form SST-24 and held that the notices issued under subsection (2) of section 28 were void ab initio because such notices did not allow 35 days time for filing the return and that the Appellate Tribunal was right in holding that a minimum mandatory period of 35 days for filing return required under section 28(2) of the Sales Tax Act of the Sales Tax Officer must allow for filing return under that provisions.

3. The aforesaid decisions of this Court were taken in appeal to the Supreme Court of Pakistan and in its judgment reported in the case of Commissioner of Income Tax v. Sunshine Dairies Limited, reported in 1992 SCMR 1963, the judgments of the High Court have been set aside and the Supreme Court has held that 35 days prescribed is not the minimum period for which the notices had to issue nor can the notices he invalidated in cases where the Sales Tax Officer has given himself a specific date, even though shorter of the thirty-five days. It was further directed that the notices issued in those cases and served on the assessee were valid and further proceedings be taken in accordance therewith.

4. Mr. Abdul Aziz Khan, learned counsel for the respondent/assessee concedes that the questions raised in the present reference application are covered by the aforesaid decision of the Supreme Court and the matter has now been finally settled.

5. Following the aforesaid decision of the Supreme Court, the questions referred to us in this reference application are answered in the negative.

6. There will be no order as to costs.

M.B.A./C-288/KReference answered.