AGRIAID INDUSTRIES VS FEDERATION OF PAKISTAN, 2000 PTD-SUPREME-COURT 3403 (1998)

(On appeal from the order dated 4-6-1998 passed by the Lahore High Court, Lahore in C.M. No.4 of 1998 in W.Ps. Nos.21969, 21970 and 21971 of 1997).

Sales Tax Act (VII of 1990)--

----Ss. 48 & 65---Constitution of Pakistan (1973), Arts. 185 (3) & 199-- Constitutional petition---Sales tax---Recalling of interim relief granted by High Court---Recovery of arrears of sales tax---Recovery Officer during pendency of application for exemption of sales tax under S.65 of Sales Tax Act, 1990 issued notices for recovery of arrears---Constitutional petitions were filed against recovery notices and High Court granted interim relief to the petitioners--Such interim relief was recalled by the High Court as, the petitioners failed to comply with the directions of the High Court-- Contention by petitioners was that when application under S.65, Sales Tax Act, 1990 was sub judice and respondent-Authorities failed to resolve the same dispute of issuance of contempt notices, interim relief should not have been recalled by the High Court and that too during the pendency of the Constitutional petitions as notice cases---Validity---High Court was right in observing that as the petitioners had failed to deposit the actual amount inabout 11 months from the issue of the order in the Constitutional petition,the petitioners had lost their right to seek its currency ---Petitioners not even made a simple offer to deposit actual amount of the tax alone---Petitioners did not controvert the plea of the respondent-Authorities that the petitioner had not obtained any stay from the Appellate Forum under the provisions of Sales Tax Act, 1990, against the assessment by the Deputy Collector-- Petitioners being still within their right-to make the payment of the principal amount in terms of the orders passed by High Court in theConstitutional petition, leave to appeal was refused to them in circumstances.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Syed Abdul Aasim Jafri, Advocate-on-Record (absent) for Petitioners.

Yawar Ali Khan, Deputy Attorney-General (on Notice) for Respondents.

Date of hearing: 19th June, 1998.

ORDER

CH. MUHAMMAD ARIF, J.---Through these petitions under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have laid challenge to orders dated 4-6-1998 passed by the Lahore High Court, . Lahore in three Civil Miscellaneous Applications all bearing No.4 of 1998, brought by the respondents in petitioners' Constitution Petitions bearing Writ Petitions Nos. 21969 of 1997, 21970 of 1997 and 21971 of 1997 whereby interim relief granted them in the said writ petitions on 20-4-1998, was withdrawn. Alongwith these petitions. Civil Miscellaneous Applications Nos.446-L of 1998, 447-L of 1998 and 448-L of 1998 have also been made for interim relief.

2. As culled out from the contents of these petitions, all the petitioners are engaged in manufacturing plastic and stainless steel Knapsack Sprayers, a machinery used for the purposes of spraying pesticides and insecticides. Until the issuance of show-cause notices to the petitioners in the year 1995. they were not charging sales tax in the area concerned with the result that they were not subjected to the payment of sales tax until the 'discovery' that the supply was liable to tax. As they had stopped manufacturing Knapsack Sprayers at the time of obtaining knowledge as above, the question of payment of sales tax simply did not arise. They became entitled to exemption under section 65 of the Sales Tax Act, 1990, hereinafter referred to as the Act, and did make applications thereunder for appropriate relief on 13-11-1995, departmental proceedings against them notwithstanding. On the passing of ex parte orders/in-Original in relation to all the petitioners, they preferred appeals thereagainst before respondent No.4/Collector (Appeals) which are still pending. On inquiry the petitioners came to know that their applications under section 65 of the Act had been processed in the Collectorates who had even prepared a draft notification opining waiver in favour of the petitioners.

3. During the pendency of the petitioners applications under section 65 of the Act before the first two respondents, respondent No.6/Recovery Officer issued notices to them under section 48 of the Act for recovery of arrears. on 10-7-1997_ Feeling aggrieved of the issuance of notices for recovery of the arrears, they filed Writ Petition No.16420 of 1997 which was disposed of by the Lahore High Court, Lahore on 24-7-1997 with the findings that proceedings under section 65 of the Act were independent of departmental proceedings and that the respondents should decide the applications of the petitioners on merits within one month. The period of one month allowed by the High Court was sought to be extended by the respondents and the High Court allowed their applications for 10 days only vide orders dated 1-9-1997. In spite of the undertaking to resolve the matter as above, respondent No.3/CBR turned down petitioners' applications on 13-9-1997 by placing reliance on an earlier decision dated 23-7-1997 to the effect that as departmental proceedings are pending the petitioners should recourse thereto. This order dated 13-9-1997 was challenged by the petitioners in Writ Petitions Nos.21969 of 1997, 21970 of 1997 and 21971 of 1997 and they also prayed for grant of interim relief, through separate Civil Miscellaneous Applications in all the writ petitions afore-referred, by issuing restraint orders against the respondents until the disposal of the main petitions. On 1-10-1997, following orders were made in Civil Miscellaneous. Applications, bearing No.2 in all the writ petitions:

"Contends that the impugned order dated 13-2-1997 runs counter to the direction of this Court in Writ Petition No. 16420 of 1998."

"2. Direct the respondents to appear at the limine hearing of this petition on 17-10-1997."

"In the meanwhile no coercive measures shall be taken against the petitioner. "

4.On 17-10-1997 contempt notices were issued to the Chairman, C.B.R. as well as its Secretary with the further direction that interior order shall continue to remain in force. On the expiry of statutory period of six, months, all the petitioners filed separate Civil Miscellaneous No.3 of 1988 in the main writ petitions for issuance of fresh stay orders in their causes which were taken up for hearing on 27-4-1988 and notices issued to the respondent -authorities therein with a direction to them to the effect that in the meanwhile no coercive measure shall be taken. Respondents made Civil Miscellaneous No.4 of 1998 in all the writ petitions seeking recall of stay orders dated 20-4-1998. On 4-6-1998, the learned Judge in Chambers of the Lahore High Court proceeded with making the impugned orders in all the writ petitions and order made in Writ Petition No. 21970 of 1997 (subject-matter of Civil Petition No.859(L) of 1997) reads thus:

"Admitted for the reasons recorded in Writ Petition No.21969 of 1997."

Civil Miscellaneous No.4

"2. This Court in Writ Petition No. 16422 of 1997 had directed the respondents to finally decide the representation of the petitioner within one month, in that order it was also directed that the respondents will not take any coercive measures against the petitioner provided the petitioner deposits with the Department the actual amount of tax, but not the surcharge, additional surcharge, additional tax, penalties etc., within a period of one week from that day. Learned counsel for the petitioner has informed the Court that even actual amount as directed in Writ Petition No.16422 of 1997 has not been deposited by his client and to the best of his information the petitioner has no stay from the Appellate forum against the order of assessment by the Deputy Collector. The petitioner has failed to deposit the actual amount in about eleven months. Therefore, he is not entitled to stay, granted by this Court vide order dated 20-4-1998. The order for the grant of stay by this Court mentioned above is withdrawn."

5. Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court representing all the three petitioners, has argued that as the matter in relation to the entitlement or otherwise of the petitioners to the exemption from payment of Customs duties etc. has not been resolved by the respondent- authorities so far, the recall of the restraint order dated 20-4-1998 through the impugned order dated 4-6-1998, is liable to be reversed. According to him, pendency of the causes in relation to the petitioners' applications under section 65 of the Act remaining sub judice and the respondent-authorities having failed to resolve the same in spite of the issuance of contempt notices to them, the interim relief granted them on 20-4-1998 should not have been recalled by the learned Judge in Chambers and that too during the pendency of the writ petitions as notice causes.

6. Mr. Yawar Ali Khan, learned Deputy Attorney-General for Pakistan, has entered appearance pursuant to a Court Notice and supported the impugned orders dated 20-4-1998 with the plea that the same do not suffer from any infirmity whatsoever.

7. We have considered the arguments addressed at the bar and are not inclined to the view that the learned Judge in Chambers fell into any error while directing recall of orders dated 20-4-1998, on 4-6-1998. The grant of interim relief to the petitioners in the second round of litigation was considered by the learned Judge in Chambers as running counter to the letter and spirit of order dated 24-7-1997. The learned Judge in Chambers was quite right in observing that as the petitioners had failed to deposit the actual amount in about 11 months from the issue of order dated 24-7-1997 in Writ Petition No, 16422 of 1997, they had lost their right to seek its currency. It is not the case of the petitioners that they even so much as made a simple offer to deposit actual amount of tax alone at any time, between 24-7-1997 to date. Moreover, the plea of the respondents that the petitioners have not obtained any stay from the Appellate Forum under the Act against the order of assessment by the Deputy Collector has not been controverted by the learned counsel for the petitioners. Be that as it may, the petitioners/applicants are still within their tight to make the payment of the principal amount in terms of orders dated 24-7-1997 in Writ. Petition No. 16422 of 1997.

8. The above are the reasons for our short order of even date which reads thus:

"For the reasons to be recorded later on, the leave is refused. However, the petitioners are allowed to deposit principal amount in terms of the order of the High Court dated 24-7-1997 in Writ Petition No. 16422 -of 1997 failing which the respondents will be at liberty to take steps according to law."

Q.M.H./M.A.K./A-42/S Petition dismissed.