Sales Tax Act (III of 1951)---

----S.7---Notification No.7, dated 27-6-1951, item 40---Exemption---Wooden doors and windows were exempted from levy of sales tax under Item No.40, Notification No.7, dated 27-6-1951 (as amended).

The inclusion of doors- and windows specifically in Item 40 of Notification No.7, dated 27-6-1951 leaves no doubt whatsoever to the intention of the framer of the Notification that wooden doors and windows were to be given exemption from levy of sales tax. It is fully known that there are no doors, windows made of concrete. It is, therefore, to be rightly inferred that the spec inclusion of doors and windows in Item 40 was intended to give a cover of exemption to these two items and these were not to be read as "ejusdem generic" to the heading, viz. "concrete building components". In the circumstances 'of the case the Tribunal was justified in holding that wooden doors and windows are exempt under Item 40 of Notification VII, dated 27-6-1951 as amended

Usmania Glass. Sheet Factory v. Sales Tax Officer PLD 1971 SC 205 distinguished.

Commissioner of Sales Tax, Rawalpindi v. Aminullah Khan etc. 1984 PTD 1 and Commissioner of Sales Tax, Rawalpindi Zone, Rawalpindi v. Abdul Razzaq Zia-ul-Qamar 1973 PTD 19 ref.

Muhammad Ilyas Khan for Applicant.

Muhammad Saleem Ch. for Respondent.

Date of hearing: 17th October, 1992.

JUDGMENT

M. MAHBOOB AHMAD, C.J. ---This Reference under section 17(1) of the Sales Tax Act, 1951 has been made by the learned Income Tax Appellate Tribunal, Peshawar Bench, Peshawar, to this Court for answering the following question said to be arisen out of the Income Tax Tribunal's order, dated 26-8-1970.

"Whether on facts and in the circumstances of the case the Tribunal was justified in holding that wooden doors and windows were exempt under Item 40 of Notification No.7, dated 27-6-1951 as amended?

2. The brief facts necessary for the purposes of this Reference are that for the assessment years 1962-63 and 1963-64 the Sales Tax Officer, by his order, dated 20-6-1969, held that doors and windows manufactured by the assessee used in the construction work by it are liable to Sales Tax within the purview of subsection (6) of section 3 of the Sales Tax Act. The assessee went up in appeal before the Appellate Assistant Commissioner, who upheld the order of the Sales Tax Officer and maintained that the doors and windows are subject to Sales Tax. Still dissatisfied, the assessee respondent went up in appeal before the learned Income Tax Appellate Tribunal. The learned Tribunal accepted the appeals by its order, dated 26-8-1970 and held that no Sales Tax should be levied in respect of the doors and windows manufactured by the assessee for use in construction of concrete buildings. The department made an application to the learned Income Tax Appellate Tribunal for framing of the above question and referring the same to this Court for answer. This application was allowed and the learned Income Tax Appellate Tribunal by its order, dated 22-5-1972 referred the above question to this Court.

3. The learned counsel for the petitioner, relying on Usmania Glass Sheet Factory v. Sales Tax Officer PLD 1971 SC 205 submitted that the doors and windows used in the concrete building were not exempt from sales tax.

On the contrary, the learned counsel for the respondent assessee contended that the judgment of the Supreme Court of Pakistan is not applicable to the facts of the case in hand in that in the cited case glass sheets were the subject of dispute whereas in the case in hand doors and windows are the subject in controversy and that these two items have been specifically included in Item 40 of Notification VII, dated 27-6-1951 as amended and, therefore, no Sales Tax in respect of thereof could be levied.

In support of his above contention the learned counsel has placed reliance on Commissioner of Sales Tax, Rawalpindi v. Aminullah Khan etc., reported as 1984 PTD 1 and a Division Bench judgment of this Court Commissioner of Sales Tax, Rawalpindi Zone Rawalpindi v. Abdul Razzaq Zia-ul-Qamar, reported as 1973 P T D 19, in which it has been specifically held that doors and windows used in construction of building were exempt from sales tax.

4. It is conceded before us that the aforementioned two judgments, viz., one of this Court and the other of the Peshawar High Court, have not been further challenged by the Department.

5. Having given consideration to the controversy, we are of the view that the contentions raised by the learned counsel for the petitioner have no force. The inclusion of doors and windows specifically in item 40 aforementioned leaves no doubt whatsoever to the intention of the framer of the Notification that the said items were to be given exemption from levy of sales tax. It is fully known that there are no doors/windows made of concrete and, to this thinking, the learned counsel for the petitioner had also to agree. It is, therefore, to be rightly inferred that the specific inclusion of doors and windows in item 40 was intended to give a cover of exemption to these two items and these were not to be read as "Ejusdem Generis" to the heading, viz., "concrete building components".

6. In view of the foregoing discussion, we answer the question as framed above in the affirmative, i.e. that in the circumstances of the case the Tribunal was justified in holding that wooden doors and windows are exempt under Item 40 of Notification VII, dated 27-6-1951 as amended. There will, however, be no order as to costs.

M.BA./C-28/L???????????????????????????????????????????????????????????????????????????????????? Reference answered.