(On appeal from the order dated 8-4-2002 of the Lahore High Court, Lahore, passed in C.A. No. 25 of 2002)

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

----Ss. 47 & 46(4)---Constitution of Pakistan (1973), Arts. 183(3) & 199(4-A)---Appeal---High Court through interim order suspended operation of impugned order---Validity---Tribunal under S.46(4) of Sales Tax Act, 1990 was authorised to pass any order after giving opportunity of hearing to parties---Interim order qua recovery of tax passed by Tribunal would cease to have effect after expiry of period of six months---High Court was not debarred from issuing interim order under S.47 of the Sales Tax Act---Appellate jurisdiction of High Court on question of recovery was tagged with S.46 of the said Act---Tribunal had power to pass interim order---Not apt to hold that Legislature had authorised Tribunal to grant interim relief, but same was not available with High Court as appellate forum---High Court had directed fixation of appeal after three weeks---Impugned order was an interim arrangement---Supreme Court dismissed petition and refused leave.

(b) Jurisdiction-----

---- Ouster of jurisdiction is always through express words, and can never be implied.

(c) Practice and procedure---

----Whatever is not prohibited, is permitted unless same specifically violates any law or rules.

(d) Jurisdiction-- ----

----Where a Court is competent to allow final relief, it has also got jurisdiction to allow interim relief.

A. Kairm Malik, Senior Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.

Shahid Karim, Senior Advocate Supreme Court and Mehmood ul-Islam, Advocate-on-Record for Respondents.

Date of hearing: 24th June, 2002.

ORDER

TANVIR AHMED KHAN, J.---Leave to appeal is sought against the order, dated 8-4-2002, of the Lahore High Court Lahore, whereby while admitting the appeal, the learned Division. Bench of the Lahore High Court passed an interim' order suspending the operation of the impugned decree. Facts briefly stated for the disposal of this petition are that the respondent filed an appeal against the order of the Additional Collector of Sales Tax, dated 22-12-1999, whereby respondent .was directed to pay principle amount of Sales Tax amounting to Rs.9,099,000 with additional tax, as well as penalty. The respondent filed an appeal before the Custom, Excise and Sales Tax' Appellate Tribunal (hereinafter referred to as Tribunal) under section 46 of the Sales Tax Act, 1990 (hereinafter referred to as the Act). The learned Tribunal vide its judgment, dated 23-11-2001, upheld the recovery of principle Sales Tax as well as additional tax. However, the penalty imposed by Collector was remitted and the appeal was disposed of with this modification.

The respondent filed an appeal under section 47 of the Act before the learned Division Bench of the Lahore High Court, wherein as an interim measure the aforesaid order of recovery has been suspended through order, dated 18-4-2002. Hence this petition for, leave to appeal.

Learned counsel for the petitioner has argued that the learned Judges of the Lahore High Court have got no jurisdiction to. grant interim relief under section 47 of the Act as the same has not been provided specifically. It is further argued that it is a Revenue matter and its recovery shall not be stayed as a matter of course, without determining the prima facie nature of the case, irreparable loss and balance of convenience favouring the claimant. Learned counsel for the respondent has supported the impugned order.

We have considered the contentions of the learned counsel and have gone. through the documents appended with this petition. Section 47 of the Act has provided an appeal to the High Court. in respect of .a question of law arising out of the order passed by the Appellate Tribunal under section 46 thereof. It would be appropriate to re-produce subsection (6) of section 47 of .the Act which is in the following terms:---

"(6) Notwithstanding that an appeal has been made to the High Court, the tax shall be payable in accordance with the order under section 46. "

The aforesaid provision has provided that tax would be payable in accordance with subsection (4) of section 46 of the Act. The Tribunal l under this section is also authorised to pass any order after giving G opportunity of hearing. However, an embargo has been placed stating that an interim order qua the recovery of tax shall cease to have effect) after the expiration of period of six months. This provision, is in line with Article 199(4-A) of the Constitution of Islamic Republic of Pakistan. Ouster of jurisdiction is always through express words which can never be implied. Here in this case under section 47 of the Act, the High Court is not debarred from issuing an interim order. It is an established principle of law that whatever is not prohibited, it is permitted unless is specifically violates any law or rules. As already stated under section 47, High Court has not been debarred from making any interim order. On the contrary the appellate jurisdiction of the High Court in question of recovery has been tagged with section 46 of the Act. The Tribunal has got power to pass an interim order. In this background, it would not be apt to hold that the Legislature has authorised the Tribunal to grant interim relief, but the same is not available with the High Court which is an appellate forum. There is another established principle of law which cannot be lightly brushed aside that where a Court is competent to allow final relief, it has also got the jurisdiction to allow interim relief. Further it is an interim arrangement and the main appeal would be listed soon as reflected from the impugned order. itself, wherein a direction has been made for the fixation of this appeal after three weeks. Resultantly taking into consideration all the aforestated features of the case, this petition is dismissed and leave is refused.

S.K.A./A-307/SCLeave refused.