Messrs WEL AGRO WISE (PVT.) LTD. through Chief Executive VS FEDERATION OF PAKISTAN, 2005 PTD-LAHORE-HIGH-COURT-LAHORE 2272 (2005)

Sales Tax Act (VII of 1990)---

---S. 46---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appeal of the assessee was stated to be pending wherein interim relief was granted to assessee in the form of injunctive order against the recovery of arrears of the demand raised by the defendant---Injunctive order had lost its efficacy due to lapse of statutory period of six months and department had moved for the recovery of demand--Validity---First appeal of the assessee was pending before the Tribunal and it would be appropriate that same be decided before the recovery proceedings because no recovery could be effected before determination of the liability---High Court directed the Tribunal to dispose of the pending appeal at the earliest but not later than two months from the date of receipt of the present order of the High Court and till disposal of appeal by the Tribunal, no recovery was to by enforced against the petitioner.

Khadim Nadeem Malik for Petitioner.

Ch. Saghir Ahmad, Standing Counsel for Government of Pakistan.

Gul Sher, Auditor, Sales Tax, Multan.

ORDER

The first appeal filed by petitioner before the Customs, Excise and Sales Tax Appellate Tribunal is stated to be pending wherein interim relief was granted on 21-7-2004 to him in the form of an injunctive order against the recovery of arrears of the demand raised in the impugned order. That injunction order has lost its efficacy due to lapse of statutory period of six months as contemplated in proviso to subsection (4) of section 46 of the Sales Tax Act, 1990. Thereafter according to the petitioner, the department has moved for the recovery of the demand.

2. Learned counsel for the petitioner contends that before a recovery created by an impugned order by a Departmental Authority can be effected, an assessee, appellant must be heard by a forum outside the departmental hierarchy. The Tribunal as a forum of first appeal having not disposed of the appeal, the petitioner cannot be blamed on that account. In all fairness, equity and justice, an assessee should not be forced to pay a demand created by a Revenue Authority unless the order creating such demand has undergone the security of a least one independent forum.

3. This is however, subject to the exemption of a case where non-disposal of the first appeal by the Extra Departmental Appellate Forum is caused by the assessee/petitioner himself. Where it is not so and where the Tribunal grants interim relief then it is incumbent upon it to dispose of that appeal within the statutory period of six months in order to safeguard the interest of both the assessee/appellant as well as the Revenue.

4. Learned Standing Counsel for Federal Government has opposed the petition.

5. I have heard learned counsel for the parties and perused the record. Admittedly the first appeal of petitioner is pending before the Customs, Excise and Sales Tax Appellate Tribunal and it would be appropriate that same be decided before the recovery proceedings because no recovery can be effected before determination of the liability. Accordingly, learned Tribunal is directed to dispose of the pending appeal of the petitioner at the earliest but not later than two months from the date of receipt of this order. For the aforesaid reasons, it is further directed that till the disposal of appeal by the Tribunal as aforesaid, no recovery shall be enforced against the petitioner.

6. Disposed of accordingly.

M.B.A./W-42/LOrder accordingly.