(a) Sales Tax Act (III of 1951)---

----[AS amended by Sales Tax Act (VII of 1990)], Ss.3(1-A) & 13(i)-- Additional tax---Levy of---Further tax on unregistered persons ---Exemption- Levy of additional tax under S.3(1-A) of Sales Tax Act, 1990 shall not be applicable to supplies which were exempted from tax in view of presence of non obsente cl. (i) in S. 13(l) of Sales Tax Act, 1990, providing for exemptions.

(b) Sales Tax Act (VII of 1990)---

----Ss:3(1-A), 13 & 22---Scope of tax---Further tax on unregistered persons- Keeping of record---No contradiction existed between S.3(1-A) and S.13 of the Sales Tax Act, 1990---Word "further" used in S.3(1-A) of the Act could be interpreted both ways as extension of sales tax or something over and above the sales tax---Suppliers even registered persons were not required to keep records as provided in S.22 of Sales Tax Act, 1990 in case of exempted goods---In absence of accounts no purpose will be served by asking the suppliers to collect further tax on supplies to non-registered persons.

(c) Sales Tax Act (VII of 1990)---

----Ss.2(34), 3(1-A) & 13---Scope of tax---Exemption---While granting exemption the Central Board of Revenue could make a reservation that notwithstanding the grant of exemption under S.13, Sales Tax Act, 1990, the supplies of exempted goods made to non-registered persons shall be subject to the provision of S.3(1-A) of Sales Tax Act, 1990---Such condition would be competent because of the definition of tax as given in S.2(34) of the Sales Tax Act, 1990, providing for all the stated concepts alongwith any sum "payable" as tax.

(d) Sales Tax Act (VII of 1990)---

----Ss.3(1-A) & 33---Scope of tax---Further tax ---Penalty---Assessee/ petitioner contended that S.3(1-A) and S.33 were contradictory as further tax imposed under S.3(1-A). of Sales Tax Act; 1990, on unregistered persons was in the nature of penalty and S.33 provides adequate penalty against avoidance of registration and evasion---Validity-,-Contention that Ss.22 & 33 of Sales Tax Act, 1990, provide adequate penalty against avoidance of registration was not relevant---Intention or motive of Legislature could not be questioned nor would it be proper to suggest that a particular legislation was in fact required or not---Section 3(1-A) in fact was a mean to an end which was documentation---Revenue was to look for the ways and means by which it could protect its interest and it was not for the assessee to sit in judgment as to which mode should or should not be adopted for the purpose.

(e) Sales Tax Act (VII of 1990)---

----Ss.3(1-A), 2(25), 13, 14 & 18---Scope of tax---Requirement of registration---Voluntary registration---Assessee contended that inclusion of both registered and liable to be registered in the concept of registered persons under S.2(25) had made S.3(1-A) of Sales Tax Act, 1990, redundant and nugatory as S.14 of Sales Tax Act, 1990, provides that every person was not required to be registered, and Legislature by way of S.3(1-A) had provided penalty in the form of further tax without first creating a liability to register---Validity---Contradictions pointed out in the said provisions and provisions of Ss. 13, 14 & 18 of Sales Tax Act,. 1990, were not good reason to declare them to be against law---No contradiction of the kind could be brought home by the assessee/petitioner which could render any provision of Sales Tax Act, 1990, as redundant or nugatory ---Co-existence of such provisions in the statute was neither impossible nor incapable of reconciliation.

(f) Interpretation of Constitution---

---- Constitutional instruments, particularly legislative list, could not be construed narrowly.

(g) Sales Tax Act (VII of 1990)---

----Ss.3(1-A) & 2(34)---Constitution of Pakistan (1973), Fourth Sched., Item No.49---Scope of tax---Further tax ---Assessee contended that levy in the garb of sales tax under S.3(1-A) of Sales Tax Act, 1990, was actually a penalty for non-registration which fell outside the domain of Federal Legislative List particularly Entry No.49---Validity---Item No.49 in Federal Legislative List provided for framing .of laws to impose taxes on sales and purchases of good--Such power included the power to legislate the charging, machinery, recovery as well as penalty provisions---Item No.49 of the list when read with items Nos.58 & 59 of Federal Legislative List made it otherwise clear that the Legislature was competent to legislate not only on a particular subject but also on matters incidental or ancillary to those enumerated in the list---Provisions of further tax, therefore, were neither penalty nor in the nature of penalty provisions---Registered persons had: a choice not to supply to an unregistered person---Further tax provided for might, at best, be a disincentive both for registered person as well as for an unregistered person---To call the provision as a penalty would not be legal when the definition clause S.2(34) described same to be a part of sales tax.

Pakistan Industrial Development Corporation v. Pakistan through the Secretary, Ministry of Finance 1992 SCMR 891 rel.

(h) Interpretation of Constitution---

---- Federal Legislative list---Power of taxation---Interpretation---Items in the Federal Legislative - List in respect of which power of taxation could be exercised should not be interpreted in a restricted and pedantic manner.

Pakistan Industrial Development Corporation y. Pakistan. through the Secretary, Ministry of Finance 1992 SCMR 891 rel.

(i) Sales Tax Act (VII of 1990)--

----S.3(1-A)---Constitution of Pakistan (1973), Arts.4, 18, 24, 25 & 199-- Scope of tax---Further .tax---Fundamental rights ---Assessees/petitioners challenged .that further tax levied under S.3(1-A) of Sales Tax Act, 1990, contending that same was violative of Arts.4, 18 & 24 of Constitution of Pakistan (1.973), which guarantee free trade, business and protection of property and was also violative of Art.25 of the Constitution being discriminatory---Validity---Petitioners failed to explain as to how they had not been dealt with in accordance with law or that any restriction was placed upon them in respect of their trade, business or profession or as to how they had been discriminated against---Fact, on the other hand, was that the petitioners were fighting for an unidentified class whom they would like to protect and whose identity they would not like to disclose---Zeal of petitioners to shield the unregistered persons was meant to protect-those with whom they operated in order to suppress volume of supplies and avoid faithful maintenance of accounts---Petitioners in the face of these facts did not appear to have approached High Court with clean hands, as such they were otherwise not entitled to relief from a Court of equity.

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan PLD 1997 SC 582 and V. M. Syed Muhammad & Co. v. State of Andhra AIR -1954 SC 314 rel.

Muhammad lqbal Khan Niazi v. Vice-Chancellor, University of Punjab and others PLD 1979 SC 1; The State of Andhra Pradesh and another v. Nalla Raja Reddy and others AIR 1967 SC 1458 and Icc Textiles Ltd. v. Federation of Pakistan PLD 1999 Lah. 251 ref.

Ali Sibtain Fazli for Petitioners.

Kh. Saeeduz Zafar, Dy. A.-G. for Respondent No. 1.

A. Karim Malik for Respondents Nos.2 to 4.

Dates of hearing: 14th, 15th and 16th September, 1999.

JUDGEMENT

This judgment will dispose of Writ Petitions No.25915 and 19045 of 1998, 803, 2076,5313, 7776, 12312, 12313, 12405, 12867, 13520, 13521,13841,14425,14426,14439,14609, 14619,14655 to 14657, 14804 to 14810, 14812, 14813, 14887 to 14889, 14961, to 14963, 14971 to 14973, 15035. 15048 to 15050, 15071 to 15074, 15085, 15114, 15179, 15180, 15220, 15240,15497, 15498,15675 1 747, 15911, and 15988 all of 1999.

2. The Sales Tax Act, 1990 was amended by Finance Act, 1998, inter alia to add subsection (1-A) to section 3 which after the amendment read:--

(I-A) Where taxable supplies are made in Pakistan to a person other than a registered person there shall be charged, levied and paid a further tax at the rate of one per cent. of the value in addition to the rate specified in subsection (1):

Provided that the aforesaid one per cent. further tax shall not be charged, levied and paid if the said taxable supplies a made:--

(1) by a person registered as a retailer; or

(2) by any registered person to a person whose income is not liable to tax under the Income Tax Ordinance, 1979 (XXXI of 1979) but has deducted income tax at source under subsection (4) of section 50 of the said Ordinance."

3. In the immediate next year by Finance Act, 1999 the above mentioned subsection was further amended to enhance the rate from one per cent. to 3 per cent. and to include a reference to clause (c) of subsection (2) and subsection (4) and (5) of section 3 of the Act. Accordingly the first part of the newly inserted subsection now reads as under:--

(1-A) Where taxable supplies are made in Pakistan to a person other than a registered person there shall be charged, levied and paid a further tax at the rate of three per cent, of the value in addition to the rate specified in subsection (1), clause (c) of subsection (2) and subsections (4) and (5):

4. The petitioners are producers of sugar, bottlers of soft drinks and manufacture of iron and steel of different kinds. Only one petitioner in Writ Petition No. 1514 of 1998 is manufacturer of Polythene items of different kinds. They have challenged the vires of the above provisions both distinctively as well as when read with other provisions of the Act. Their various objections being that amendment is against the basic scheme of the Sales Tax Act inasmuch as the above levy of 1 % in 1998 and 3 % in 1999 was nothing to do with sale or supply; that the levy in the garb of sales tax is actually a penalty for non-registration which falls outside the domain of Federal Legislative list particularly entry No.49; that levy of said additional tax will result in a strange economic anomaly as the product of one producer/importer will have two prices i.e. one for registered persons and the other for unregistered person. According to them in such situation there would be a supply of the same product at two different prices. Further that under section 13 of the Sales Tax Act, the supply or import of goods mentioned in 6th Schedule are exempted from levy of sales tax but the additional levy when seen in the light of definition of "tax" as contained in section 2(34) will make all such provisions redundant. In other words through the additional tax under section 3(1-A) the Sales Tax has indirectly been re-introduced in respect of those supplies which were otherwise exempted from levy; that section 13 having a non obstante clause over-rides section 3(1-A), and therefore. no tax directly or indirectly could be charged from the persons who are exempted or are not liable to the levy; that levy of a further tax of one per cent. (in the year, 1998) and of 3 % (from the year, 1999 and onwards) amounts to double taxation; that further tax levied by section 3(1-A) of the Act is violative of Article 25 of the Constitution being discriminatory; that the amount levied is also violative of Articles 4, 18 and 24 of the Constitution which guarantees free trade and business and protection of property.

5. The petitioners who are bottlers have a further grievance. They claim that in the first amendment in the year. 1998 no reference was made to sub-section: (1) of section 3 of the Sales Tax Act. Therefore, according to them as section 3 of the Act provided for a levy only with reference to the value of the supplies made in Pakistan or goods imported into Pakistan the crew levy had nothing to do with those suppliers which were covered by retail tax system under Third Schedule of the Sales Tax Act, 1990 at serial No.3. Also that the retail price system was otherwise protected through a non obstante clause from the main charging section i.e. section 3(1) of the Act which 'was necessarily value based system. It is accordingly pleaded that additional tax. under section ,3(IA) did not at all relate to the retail price regime provided for under section 3(2) of the Act. In this connection a specific reference to the phrase "in addition" as used in the newly inserted subsection is made. According to these petitioners the makers of beverages and soft drinks of various brands, the import of concept of further tax into the regime of retail price was net only un-practice able but also against the spirit of the Act. Therefore, it is stressed that their products like Pepsi Cola, Coco Cola, Mirinda and Teem etc. will have two different sale prices i.e. one for registered persons and the other for unregistered persons. The supplying of the supplying of the same product at different rates, according to bottlers is practically impossible as these could not have two different sets of prices mentioned on their labels m required by sub-clause(c) of section 3 of the Act.

6. The first three categories of the applicants namely manufactures of sugar, producers of iron, steel and polythene makers have addressed similar arguments while the bottlers mostly represented by Mr. Sal Akram Raja, Advocate, have taken the said additional plea that the provisions of section 3(1-A) are not attracted to retail tax regime. .

7. For the petitioners in terms of the contents of the petition, it is stressed that the newly added subsection is ultra vires of the Constitution because it is against the basic scheme and scope of the sales tax as levied under the Sales Tax, 1990; that all the petitioners are already registered persons who have been required to pay the aforesaid additional tax while the real intention was to tax unregistered persons. All the petitioners agree that the aforesaid amendments in tile Sales Tax Act have been made with an idea to bring "unregistered persons" into the net of the sale tax. It is, however, stated that the liability to pay additional tax has fallen on the already registered persons without any fault on their part that this act on the part of the legislature is unconstitutional. It is also stated that the amendments in question were otherwise superflous inasmuch as sections 22 and 33 of the Sales Tax Act, 1990 provide for an adequate penalty to those who avoid registration and to regulate maintenance of accounts within the specified period. The safeguards provided in the Act according to the learned counsel are sufficient to protect the interest of the revenue. The practical aspect of the amendment is stated to be against some of the producers and importers who will become less competitive in view of their charging of higher rates from the non-registered persons. Further that instead of punishing the concerned persons the lagislature through the amended provisions has found a scapegoat in the form of `the petitioners. Describing the provision as discriminatory, learned counsel refer to the observations of the Supreme Court of Pakistan as made in re: Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan (PLD 1997 SC 582). Also point out an anomaly in law which is based upon the definition of the word "registered person" as contained in section 2(25) of the Act. It 4ef!nes a registered person to be a person "who is registered or is liable to be registered under this Act." The contention put-forth at the bar being that the inclusion of both registered and those liable to be registered in the concept of registered person has made whole of the newly added provisions redundant and nugatory. For, a supply to a person who is not registered will still riot be culpable inasmuch as he is nonetheless liable to be registered, and therefore, according to the definition a registered person. Further that law does not require every person to get himself registered. Section 14 of the Act is referred to in this regard to say that not every person is required to be registered and therefore, the legislation by way of the said provisions has provided for a penalty in the form of further tax without first creating a liability to register. The alleged contradictions in the newly added provisions and: those contained in section 14 of the Act are also stated to be a good reason to declare them to be against the basic scheme and order of the Act. Reference to section 18 of the Act which provides for voluntarily registration is also made to stress the point.

10. The revenue represented by Mr. A. Karim Malik, Advocate and Kh. Saeeduz Zaffar, learned Deputy Attorney-General, however, challenge all the aforesaid contentions. First of all it is pointed out that item No.49 of the Fourth Schedule to the Constitution should be read with items 58 and 59 as observed by their Lordships of the Supreme Court in re: M/s Ellahi Cotton Mills (Supra); that there was absolutely no ambiguity as far the category of cases to which the amended provisions of section (1-A) of section 3 was made applicable in the Finance Act, 1998. However, if at all there was one it stood adequately removed by the next amendment made in the year, 1999 whereby sub-clause (c) of subsection (2) and subsections (4) and (5) were also brought within the scope of further tax contemplated in the provision. It is further claimed that further tax levied by the amended provision was not in nature of penalty and even if assuming the same to be so it could not be struck down merely for that reason alone. The Constitution, according to the learned counsel for the revenue, permits creation of various classes and that in fact no class vas intended to be created by the impugned ,amendment inasmuch as all the petitioners who are in-variably registered persons will not change their class by making supplies to either registered or non-registered persons. In other words their class remains the same yet while making supplies to certain kinds of persons they are required to collect some tax for reasons which are of unreasonable. According to the learned counsel for the revenue, there be no compulsion upon them to make a supply to an unregistered person, the provisions in question will not be attracted to them. The petitioners, it is stated, have a choice and if they wanted to avoid the alleged penalty they were free to make all supplies to registered persons only. It is also claimed that petitioners are factually not aggrieved parties because they will of collect additional tax from iron-registered persons and pass it on the patio al exchequer. According to him it is only those registered persons operating through phony agents; dealers, retailers or subsidiaries who are raising a hue and cry. Also denies that as per definition of registered persons as made section 2(25) of the Act no practical difference exists between registered person and the one who though liable to be registered but is not registered. It is stressed that in the aforesaid definition reference has been made to all kinds of persons while in subsection (1-A) only those persons are contemplated who are in receipt of a supply. Also places reliance upon the ratio settled by the apex Court in the aforesaid judgment re: M/s. Ellahi Cotton Mills (supra). According to the learned counsel for the revenue all the submissions made at the bar find sufficient answer in that judgment and none of the objections having been directed against the vires of legislation' an interference for the petitioners is not justified.

11. Learned Deputy Attorney-General supports him. It is stated that not a single good reason was put forth against the vires or constitutionality of the amended provisions. By relying upon re: Muhammad Iqbal Khan Niazi v. Vice-Chancellor, University of Punjab etc. (PLD 1979 SC 1), it is contended that language of the amended provisions being clear, this Court would not be justified in altering the ordinary meaning of words by ' resorting to complicated canons of construction. According to the learned Deputy Attorney-General the purpose as well as levy of additional tax being more than clear the aforesaid niceties of construction and finding of faults and contradictions in various provisions of the Act could not be allowed to prevail to defeat a provisions whose sole aim is to document national economy. Reference is also made to re: The State of Andhra Pradesh and another v. Nalla Raja Reddy and others (AIR 1967 SC 14533) to submit that the alleged classification even if accepted to be present is riot objectionable. It is further contended that the impugned provision has trot at all put any restriction on the right of the business of the petitioners who were still free to make supplies only to registered persons. Also that they re not restrained to make supplies to non-registered persons but the choice so exercised only entails a liability to collect tax from them which as a matter of fact ought to have been paid by them. Reference is also made to judgement of this Court recorded in re: Icc Textiles Ltd. v. Federation of Pakis an (PLD 1999 Lah: 251) wherein the principles for determination whether the provisions were discriminatory were enumerated. Lastly reference is made to another judgment from Indian jurisdiction reported as re: V. M. Syed Muhammad & Co. v. State of Andhra (AIR 1954 SC 314). In that the Supreme Court of India affirmed the principle that guarantee of equalprotection of laws does not require that the same law should be made applicable to all persons. Further that classification for legislative purpose is not forbidden provided it is based on some differential/having a reasonable reference to the object and purpose of law in question; that there was a strong presumption in favour of the validity of legislative classification and it was for those who challenged it as un-Constitutional to allege and prove beyond all doubts that legislature arbitrarily discriminated between different persons.

12. After considering the submissions made at the bar I am of the view that all of them are necessarily misdirected. These are relevant only against an assessment order passed by a Sales Tax Officer. All contentions made are germane to appeal proceedings against an order in Original. The stress placed on the amended provisions and on its alleged contradictions with other provisions of the Act is again an objection against their application to a particular set of facts or to a particular assessee. The different categories of the petitioners, in their on way, have attempted to bring home that the amended provisions, for one reason or the other, is not attracted in their case. It will be recalled that except for the beverage producers all other petitioners have prayed for a declaration that the amended provision is ultra vires of the Constitution. The beverage producers have made a further prayer for declaration that the amended provision is not applicable to goods under the. Third Schedule i.e. on which sale tax is charged on the basis of retail price. However, like the rest of the petitioners, they have not challenged a particular assessment order or any other notice demanding the additional levy.

13. As noted above, none of the reasons advanced at the bar cart be taken as a good ground to declare the amended provisions as repugnant to the Constitution or ultra vires of the powers of the legislature. The provision in question as rightly pointed out by the learned counsel for the revenue and the learned Deputy Attorney-General requires only collection of tax for the exchequer in a specific situation and the idea is clearly two-fold. The first of course is tapping any leakage and second the documentation of the economy. The registered persons are not required to pay the additional tax from their own pocket nor they add anything to the prescribed tax. It only ensures the enforcement of the will of the legislature that every person dealing in certain goods or supplies shares the burden of tax. It is admitted that sole purpose behind the addition of new clause in section 3 is that no person escapes sales tax for lack of proper man force with the revenue or that no documentary evidence is available to evidence their supplies or engagement in a particular business. Neither the intention, nor the words of statute are in any way offensive to the established norms of judicial interpretation. It will further be noted that dealings with non-registered persons have not been prohibited. The contention that the additional levy is not a sales tax as it is not relevant to supply is also not correct. It is certainly relevant to supplies though made to a particular class of persons. If there is no supply to a non-registered person, there is no question of levy of further tax as contemplated in the amended provisions. Also the alleged variation in price in cases of retailer is not well-founded. Except for controlled items every other item has a different rate keeping in view the locality of the shop, its goodwill and the facilities provided to shoppers. Again the chart prepared by the revenue to illustrate the end value of supply to the consumer also controverts the submissions that there are likely to be two different rates of different items when supplies are mace to unregistered persons. Even if that be correct, it will be unfair on the part of the petitioners to plead the case of the non-registered persons who persistently refuse to join the main stream of business and to refuse to share the burden of tax. The further tax as provided for in the amended provisions at the most requires that if a registered person becomes a privy to the clandestine business dealings of another person, that he should realize from him what is due to the State. '

14. The contentions made for the beverage makers are equally miss-placed. No further tax over and above the already fixed on them as supplies has been imposed. It is only in case of a particular situation that they will "collect" the tax. Like all other petitioners the incidence of further tax contemplated by the amended clause does not fall on any of the suppliers a; they act only as an agents of the revenue to collect a further tax which in fact was to be paid by the unregistered persons. There is no contradictor between the provisions of subsection (1-A) and sub-clause (c) of section 3, After the amendment made by Finance Act, 1999 no ambiguity has been left to suggest that additional tax is leviable only with reference to subsection (1) of section 3 which provides for levy sales tax on the basis of value only. The two provisions as these exist today when read together do not even create a reasonable doubt in favour of the proposition. The liability created by the amended provisions is relatable not only to the kind of supply which of course will be taxable supply but also to the nature of recipient. If he is not a registered person then the supplier is obliged to add to the price the prescribed amount and pay it to the State. Therefore, the additional levy has nothing to do with the fact if a person is making supplies of goods which are subject to sales tax on value basis or retail basis. It is only the specified class of persons as receivers which will determine the application of the provision. It is equally impertinent to suggest that a contradiction has emerged inasmuch. as the additional tax will also hit the supplies of exempted goods. The further tax as rightly pointed out by the learned counsel for the revenue is not part of the main tax but it is levied only in a particular situation. That situation being "taxable supplies " to a person other than a registered person. Therefore, I will agree that in view of presence of non obsente clause in section 13(1) providing for exemptions the levy of additional tax under section 3 (1-A) shall not be applicable to supplies which are exempted from tax. It is correct that the use of word "further" in the amended clause can be interpreted both ways as extension of the sales tax or something over and above sales tax. However, in cases of exempted goods the suppliers even if they are registered persons are not required to keep records as provided for in section 22. In absence of accounts no purpose will be served by asking them to collect further tax on supplies to non-registered persons. Therefore, I do not see any contradiction between the amended provisions and section 13 of the Sales Tax Act, 1990. Accordingly it will not be correct to say that sales tax has indirectly been introduced in the guise of additional tax. The submissions made in this regard are of academic interest only as none of the petitioners is engaged in making exempt supplies. It will, however, be noted that While granting exemption the Board can make a reservation that notwithstanding the grant of exemption under section 13 the supplies of exempted goods made to non-registered persons shall be subject to the provisions of section 3(1-A) of the Act. Such a condition would be competent because of the definition of tax as given in section 2(34) of the Act providing for all the stated concepts alongwith any sum "payable" as tax. Of course, a tax is payable on all taxable supplies but for the exemption granted.

15. In the first amendment brought about by Finance Act, 1998 the absence of any reference to subsection (c) of section 2 and subsections (4) and (5) of section 3 is also of academic interest only. The revenue has denied that absence of mention of the aforesaid provisions in the newly added subsection (1-A) was of any significance as far the retailers are concerned. After the latest amendment in the provisions in the year, 1999, no arguable ambiguity has been left. Even if. there was any such ambiguity in the amended provisions as earlier introduced to subsection (1-A), that by itself would not mean that the provisions were un-Constitutional or ultra vires of legislature. The claim of the retailers that it did not apply to them is again too optimistic. Even if no reference to clause (c) of subsection (2) existed therein no confusion was there as to the persons chargeable to the further levy when a taxable supply was made to a person other than a registered person. The addition of various sub-clauses or subsections of section 3 by Finance Act, 1999 has merely affirmed the legal position which ,in -any case existed even before the latest amendment.

16. The suggestion that sections 22 and 33 of the Act provide, for an adequate penalty against avoidance of registration and evasion is main not relevant. The intention or motive of legislature cannot be questioned nor will it be proper to suggest if a particular legislation was in fact required or not. Both sections 22 and 23 of the Act prescribe book keeping, and invoicing requirements and section 33 provides for general penalties. The amended provision in fact is a mean to an end which is documentation as prescribed in .the above provisions. Further, it is for the revenue to look for the ways and means by which it could protect its interest and it is not for the assessee to sit in judgment as to which mode should or should not be adopted. The submissions made with reference to definition of registered person as contained in section 2(25) of the Act have already been answered by the learned counsel for the revenue. Also I am in agreement with the respondents that the alleged contradictions pointed out in the provisions in question and the provisions of sections 13, 14 and 18 of the Act are not a good reason to declare them to be against law. In fact, no contradiction of the kind could be brought home by the petitioners which could render any provision of the Act as redundant or nugatory. In any case their co-existence in the statute is neither impossible nor it is the case of the petitioners that they could not be reconciled.

17. Learned counsel for the respondent is also correct in stating that most of the objections raised at the bar against the amended provisions find adequate answer from the judgment of the Supreme Court in re: M/s. Ellahi Cotton Mills (supra). It will be seen that the only relevant objection which could be taken note of against tine constitutionality of the provisions is made on the ground that the amended provision is in nature of a penalty, and therefore, is against item No.49 of the 4th Schedule to the Constitution. That item in the- Federal Legislative List provides for "Taxes on the sales and purchases of goods imported, exported, produced, manufactured or consumed". It is the objection of the petitioners that amended provision being a penalty or being in nature of a penalty was not covered by Item No.49. The submission is fallacious for a number of reasons. Firstly the power of legislature to provide for a levy undoubtedly also arms it with the power to legislate charging, machinery and recovery provisions. Penalty provisions are invariably an inseparable part of a taxing statute intrinsically connected with both machinery as well as recovery provisions. In absence of penalty provisions the levy or collection of a tax would not be more than u pious thinking: It is an established rule of interpretation of Constitutional instruments, particularly legislative lists, that these could not be construed narrowly. In the aforesaid case re: Messrs Ellahi Cotton Mills (supra) in somewhat similar situation their Lordships re-affirmed the principle, by finding that such lists could not be construed narrowly and were rather to be given liberal construction: In cases of laws relevant to economic activities the principles of interpretation were explained by the apex Court. Also the principles governing the determination of constitutionality of a legislation were dealt with. It was accordingly held that law should be saved rather than destroyed and that the Courts must lean in favour of upholding 'the Constitutionality of a legislation; that there was a presumption in favour of the Constitutionality of legislative enactments unless ex-facie it was violative of a Constitutional provisions. As to laws relating to economic activities, their Lordships desired that Courts should view them with greater. latitude than the laws relating to civil rights such as freedom of speech, religion etc. Also their Lordships approved reading together of various items in the legislative list in order to reconcile the powers of the legislature. Item No.49 in the Federal Legislative List provides for framing of laws to impose taxes on sales and purchases of goods etc. Such power includes the power to legislate the charging, machinery, recovery as well as penalty provisions. Item No.49 when read with Items Nos.58 and 59 makes it otherwise clear that the legislature is competent to legislate not only on a particular subject but also on matters incidental or ancillary to those enumerated in the list. In re: Pakistan Industrial Development Cooperation v. Pakistan through the Secretary, Ministry of Finance (1992 SCMR 891) it was found that items in the list in respect of which power of taxation can be exercised should not be interpreted in a restricted and pedantic manner. The objection of the petitioners, therefore, is without any basis. It is, however, reiterated that the provisions of further tax as introduced through sub-section (1-A) are neither penalty nor in the nature of penalty provisions. Since a registered person has a choice not to supply to an unregistered person, the further tax provided for may at best be a disincentive both for the registered person as well as an unregistered person. However, to call it a penalty would not be legal when the definition clause section 2(34) describes it to be a part of sales tax.

18. The other contention that the amended provision if violative of Article 4 (right of individuals to be dealt with in accordance with law, Article 18 (freedom of trade, business or profession), Article 24 (protection of property rights) and Article 25 (equity of citizens) is not supported by any cogent reason. It is not explained as to how the petitioners have not been dealt with in accordance with law or that any restriction was placed upon them in respect of their trade, business or profession or as to how they have been discriminated against. The fact of the manner, on the other hand, is that they are fighting for an unidentified class whom they would like to protect and whose identity they would not like to be disclosed. Their zeal to shield the above class rather gives support to the submissions of the revenue that these petitions are meant to protect their alter-(sic) through whom they operate in order to suppress volume of supplies and avoid faithful maintenance of accounts. The petitioners in the face of these facts do not appear to have approached this Court with clean hands. As such they are otherwise not entitled to relief from a Court of equity.

19. The case law relied, upon by the Revenue and the learned Deputy Attorney-General including re: V. M. Syed Muhammad & Co. v. State of Andhra Pradesh. (supra) is relevant and pertinent. T6a aforesaid recent judgment of the Supreme Court in re: Messrs Ellahi Cotton Mills (supra) supports case of the revenue from all possible angles.

20. Accordingly, I find to substance in the submissions made for any of the four categories of the petitions. Therefore, all the above stated writ petitions shall be dismissed with costs.

C.M.A./M.A.K./R-114/L Petitions dismissed.