Messrs RANA BROTHERS OIL MILLS, RAHIMYAR KHAN VS A.C. SALEX TAX, RAHIMYAR KHAN, 2002 PTD-LAHORE-HIGH-COURT-LAHORE 2526 (2002)

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

-----Ss.8(3) & 47---Appeal---Maintainability---Question of fact-- Entitlement to claim adjustment pertaining to a period prior to registration with the Sales Tax Department ---Assessee claimed refund of sales tax for a period when he was not registered under Sales Tax Act, 1990---Claim was rejected by the Revenue Authorities and also by the Appellate Tribunal---Objection raised by the authorities was that such adjustment was a question of fact and could not be decided by High Court under S.47 of Sales Tax Act, 1990----Validity---Most of the contentions being raised before the High Court were not made before the Tribunal---Question of law was one which had arisen out of the order of the Tribunal on a particular point or issue, if it was actually raised before the Tribunal and was ruled upon by it---Where question was neither raised before the Tribunal nor it was ruled upon by it such question could not be said to have arisen out of the order of the Tribunal ---Assessee in the present case, failed to raise any question of law to be answered by High Court under S.47 of the Sales Tax Act, 1990---High Court sustaining the objection against the maintainability of appeal dismissed the same in limine.

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

----Ss.8(3) & 47---Customs Act (IV of 1969), S.194-B(2)---Factual controversy- --Entitlement to claim adjustment pertaining to a period before sales tax registration---High Court declined to adjudicate the matter under. S.47 of the Sales Tax Act, 1990, and advised the assessee to approach the Tribunal under S.194-B(2) of Custom Act, 1969, to bring to their notice the factual submission which allegedly came to its notice after recording of the order assailed before High Court under S.47 of Sales Tax Act, 1990.

Munawar Ahmad Warraich for Appellant.

A. Karim Malik for Revenue.

ORDER

NASEEM SIKANDAR, J.---The claim of the appellant for refund of Rs.6,95,247 was rejected by the Revenue Authorities while he was found to have incorrectly adjusted sales tax to the tune of Rs.6,96,928 on oil cake and oil dirt, sold during the year 1996-97. Accordingly that amount adjusted in the monthly return dated 15-2-2000 for June, 1997 was ordered to be recovered alongwith additional tax.

2. Admittedly the appellants were not registered with the Sales Tax Department during the year, 1996-97. They were registered on 1-7-1997. Thereafter, in order to cover their transactions for the year 1996-97 they filed monthly returns. On appeal the learned Tribunal with reference to the provisions of section 8(3) of the Sales Tax Act, 1990 observed that as per appellants' own declaration they had incorrectly adjusted the aforesaid amount when seen in the perspective of said provisions of law. Accordingly the factual adjustments of Rs.13,92,178 were found to be inadmissible. In the given situation levy of additional tax was, however, found to be unjustified.

3. After hearing the learned counsel for the parties we are inclined to sustain the legal objection against the maintainability of appeal. Learned counsel for the Revenue claims and we will agree that in the given factual and legal situation no question of law can possibly be said to have arisen out of the order of the Tribunal. The issue if the petitioner was entitled to claim adjustment pertaining to a period before his registration can hardly be taken as a substantive question of law to be answered by this Court under section 47 of the Sales Tax Act, 1990. Most of the contentions now being raised do not appear to have been made before the learned Tribunal. A question of law can be said to have arisen out of the order of the Tribunal on a particular point or issue if it was actually raised before the Tribunal and was ruled upon by them. Where a question was neither raised before the Tribunal nor it was ruled upon by them it could not be said to have arisen of their order.

4. That being so, this appeal shall be dismissed in limine. However, the petitioner if so advised may approach the learned Tribunal under subsection (2) of section 194(b) of Customs Act, 1969 to bring to their notice the factual submission which allegedly came to its notice after recoding of the impugned order.

Q.M.H./M.A.K./R-123/L

Appeal dismissed.