Sales Tax Act (III of 1990)‑‑‑

‑‑‑‑Ss.45 & 47‑‑‑Appeal‑‑‑Maintainability‑‑‑Maintainability of appeal had been injected to on the ground that only Appellate Tribunal and Caector (Adjudication) had been arrayed as parties in the appeal while in scheme of law Collector (Adjudication) was a person who had concern only with adjudication matters and had nothing to do with recovery of sales tax‑‑‑Validity‑‑‑Only the Collector of Sales Tax appointed under subsection. (a) of S.30 of Sales Tax Act, 1990 as distinguished from Collector of Sales Tax (Adjudication) appointed under subsection (b) of $.30 of said Act could either be an appellant or a respondent‑‑‑Appeal in absence of Collector of Sales Tax, who could under law be a respondent, was not properly filed‑‑‑Even otherwise appeal filed by appellant was barred by time and no request for condonation of delay was made‑‑‑Appeal was dismissed on account of its having been filed without impleading necessary party and on ground of limitation.

2002 CLC 705 ref.

Hamid Khan for Appellant.

Izhar‑ul-Haq and Dr. Sohail Akhtar for‑Revenue.

Date of hearing: 31st March, 2004.

ORDER

NASIM SIKANDAR, J.‑‑‑This is an appeal under section 47 of the Sales Tax Act, 1990.

2. Learned counsel for the respondent/Revenue at the outset has objected to its maintainability on the ground that only Appellate Tribunal and Collector (Adjudication) have been arrayed as a parties while in the scheme of the law since Finance Act, 2001 Collector (Adjudication) is a person who has concern only with adjudication matters and has nothing to do with recovery of sales tax. In this regard refers to the provisions of section 45 of the Sales Tax Act, 1990. Also contends that subsection (2) of section 47 of the Sales Tax Act, 1990 providing for an appeal to this Court clearly indicates that it is only a Collector on the executive side which can either be an appellant or a respondent before this Court. In A support of his submissions learned counsel refers to a judgment of this Court reported as in re: Khan Trading Company, Gujranwala v. Collector of Customs, Excise arid Sales Tax (Adjudication), Lahore 2002 CLC 705.

3. Learned counsel for the appellant on the other hand states that the Tribunal has been arrayed in view of the provisions of subsection (5) of section 47 which provide for sending of a copy of the judgment of this Court to the Appellate Tribunal enabling it to pass such orders as are necessary to dispose of the case in conformity with the judgment of this Court. According to him as far the appellant as a registered person/ taxpayer is concerned, there is hardly any difference between the Collector (Adjudication) and a Collector on the executive side which is claimed by the Revenue to be entrusted with the job of collection, recovery and refund. Therefore, according to him respondent No.2, Collector (Adjudication) is as good as respondent as Collector on alleged executive side of the department could be.

4. After hearing the learned counsel for the parties we are persuaded to agree that scheme of Sales Tax, 1990 clearly provides for two branches of the Revenue. The first branch functions and exercises power of adjudication under section 45 of the Act as substituted by Finance Ordinance, 2000. That branch when seen in the provisions of the Act as also the circulars issued by the Central Board of Revenue from time to time is not concerned with recovery or refunds. On the other hand subsection (2) of section 47 provides for appeal to this Court to be filed within sixty days of the date when the aggrieved person or the Collector is served with a notice under section 46 of the Act. The scheme of the Act also makes it clear that before the Collector (Appeals) as well as the Tribunal the department is represented through the concerned officer who could either be an appellant or a respondent. However, as far this Court is concerned, it is only a Collector of Sales Tax appointed under subsection (a) of section 30 as distinguished from Collector of Sales Tax (Adjudication) appointed under subsection (b) of section 30 who can either be an appellant or a respondent.

5. The result of the above obviously being that this appeal as on today is not properly constituted in the absence of the Collector of Sales Tax who could under the law be a respondent. In this case the order of the Tribunal was recorded on 19‑5‑2003 and dispatched to the appellant on 11‑6‑2003 while a period of only 60 days is provided under subsection (2) of section 47 of the Sales Tax Act, 1990 for filing of an appeal. The view of this Court with regard to limitation particularly when it comes to fall on a taxpayer as expressed in C.A. 323 of 2001, dated 21‑11‑2001 is very lenient. However, in the case in hand no C request for condonation of delay and for substitution of Collector as respondent having been made we will dismiss this appeal in limine on account of its having been filed without impleading the necessary, party.

6. Dismissed in limine.

H.B.T./A‑339/L Appeal dismissed.