Sales Tax Act (VII of 1990)

‑‑‑‑S. 46‑‑‑Civil Procedure Code (V of 1908), O. XXXIX, R. 2(2‑A), (2‑B) & S.141‑‑‑Constitution of Pakistan (1973) Art.199‑‑‑Constitutional petition‑‑‑Grant of stay under S.46(4), Sales Tax Act, 1990 against recovery of tax by the Appellate Tribunal‑‑‑Contention of the assessee was that after expiry of such interim order staying the recovery of tax, on expiration of period of six months, the time be extended to the appellate proceedings pending before the Customs, Excise and Sales Tax Appellate Tribunal in view of the principles provided under O.XXXIX, R.2(2‑B), C.P.C.‑‑‑Validity‑‑‑Appellate Tribunal under the Sales Tax Act, 1990 exercised jurisdiction under Special Act and thus equitable provisions in O.XXXIX, C.P.C. which was a general law pertaining to the procedure as well as the jurisdiction regarding the matters seized of by the Court of civil jurisdiction and in respect of ancillary matters; could not be extended to the proceedings pending before the Tribunal under S.46, Sales Tax Act, 1990‑‑ Principles.

Zahoor Textile case's PLD 1999 SC 880 and Nazir Ali M. H. Gangji v. Commissioner of Income‑tax 1994 PTD 958 ref.

Sattar Silat for Petitioner.

Date of hearing: 5th November, 2002.

ORDER

The petitioner has preferred an appeal under section 46 of the Sales Tax Act, 1990, before the respondent No.1, Customs Central Excise and Sales Tax Appellate Tribunal (hereinafter referred to as Tribunal) Karachi Bench, which is pending adjudication.

The Tribunal granted stay on 28‑3‑2002 which has lapsed after expiry of a period of six months. In the above circumstances, the petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan to consider the following questions of law:‑‑‑

(1) Whether provision of Article 199 (4) (A) of Constitution read with section 48(a) of the Sales. Tax Act, 1990 were misapplied as well dictum of Zahoor Textile's case reported as PLD 1999 Supreme Court 880 by respondent No.3 by enforcing demand of Sales Tax?

(2) Whether provisions of section 48 of Sales Tax Act, 1990 read with rule 4 of Sales Tax Recovery Rules, 1992 are attracted during pendency of appeal under section 46 of Sales Tax Act, 1990 particularly when the appeal could not proceed either as a result of the absence of the Hon'ble Member of the Tribunal or as a result of the absence of the respondent without any fault on the part of the petitioner?

(3) Whether the Hon'ble Customs, Central Excise and Sales Tax Appellate Tribunal for the purpose of extension of a stay order and/or restraining order should have followed the equitable principles contained in the Code of Civil procedure specifically rule 2(2‑B) of Order 39, C.P.C. to extend the period upon the expiry of six months?

(4) Whether the dictum in the case of Zahoor Textile by Hon'ble Supreme Court of Pakistan still hold the field specifically after the amendment of clause 4(A) of Article 199 of the Constitution by Legal Framework Order, 2002?

Heard Mr. Sattar Silat, learned counsel for the petitioner.

The main thrust of the arguments addressed by the learned counsel for the petitioner is that, after expiry of interim order staying the recovery of tax on expiration of period of six months, under the provision of section 46(4) of the Sales Tax Act, 1990 the principles contained in the Code of Civil Procedure and particularly rule 2(2‑B) of Order. 39, which provides that, "the order of injunction made under rules 1 and 2 of Order 39, cease to have effect on the expiration of six months unless extended by Court after hearing the parties again and for reasons to be recorded for such extension", may be extended to the appellate proceedings pending before the Customs, Excise and Sales Tax Appellate Tribunal, under the provisions of the Sales Tax Act, 1990.

The learned counsel for the petitioner has contended that, the Tribunal is established under the provisions of the Sales Tax Act and has conceded that, it is not a Civil Court, The, contentions raised by the learned counsel‑for the petitioner that, the equitable provisions contained in rule 2(2‑A) of Order 39, C.P.C. may be extended to the proceedings pending before the Tribunal appears to be without any substance and force. The reason being that, it is specifically provided in section 141, C.P.C. that, the procedure provided in the Civil Procedure Code in regard to suits shall be followed, as far as, it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. The Tribunal cannot' be held to be a Court of Civil Jurisdiction by any stretch of imagination. It has been held by a Division Bench of this Court in the case of Nazir Ali M.H. Gangji v. Commissioner of Income Tax 1994 PTD 958, that, the jurisdiction exercised by the High Court under section 136 of the Income Tax Ordinance, 1979 is not that of a Civil Court and consequently; provisions contained in Civil Procedure Code are not applicable. It has been held that, the powers exercised by the High Court under section 136 of the Income Tax Ordinance, has not been conferred by the Code of Civil' Procedure and is a special jurisdiction of limited nature not conferred by the Code of Civil Procedure but by the special provisions of the Income Tax Ordinance and therefore, any incidental or ancillary powers under the C.P.C. are not available to the High Court. Thus the question of extending equitable provisions contained in Order 39, C.P.C. to the proceedings pending before the Tribunal under the Sales Tax Act, does not arise. Moreover, the provisions contained in Order 39. C.P.C. are confined to the suits only and are not applicable to the proceedings before an Election Tribunal, Rent Controller, Family Court and other forums exercising quasi judicial jurisdiction. In addition to the above reasons, the Tribunal exercises jurisdiction under the Special. Act and thus the provisions contained in Civil Procedure Code, which is a general law pertaining to the procedure as well as the jurisdiction regarding the matters seized by the Courts of Civil Jurisdiction and in respect of incidental and ancillary matters cannot be extended to the proceedings under the Special Law.

For the foregoing reasons, we are of the opinion that, the points raised in the petition are without substance, and consequently, the petition stands dismissed in limine.

M.B.A./K‑69/KPetition dismissed.