Messrs YASIR BOARD INDUSTRY through Proprietor VS CENTRAL BOARD OF REVENUE, ISLAMABAD, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 1054 (2004)

Sales Tax Act (VII of 1990)---

----S. 46(7)---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Pending petitioner's appeal before the Appellate Tribunal, period of stay for recovery of amount granted to the petitioner, could not be extended by the. Tribunal because of the express provisions of S.46(7), Sales Tax Act, 1990---Contention of the petitioner was that order directing the stay of recovery of the said amount could be passed by the High Court in exercise of constitutional jurisdiction, as the remedy before the Tribunal was no longer available to the petitioner so far as interim relief was concerned---Validity---Held, circumstances of the case did not, in any manner, impinge upon the High Court's constitutional power to grant relief under Art.199 of the Constitution, particularly, where an alternate remedy was either not available or had become unavailable to the petitioner because of any sub constitutional legislation such as the Sales Tax Act, 1990 in the present case---Principles---Constitutional petition was allowed and it was directed that the amount's impugned by the petitioner, in its appeal before the Appellate Tribunal, shall not be recovered from the petitioner during the pendency of his appeal---High Court observed that present order of the High Court was subject to the provisions of Art.199 of the Constitution.

Messrs Karim Containers (Pvt.) Ltd. v. Customs, Central Excise 2003 PTD 1106 distinguished.

Waqar Ahmed for Petitioner.

Ch. Sagheer Ahmed, Standing Counsel for Respondents.

Date of hearing: 29th January, 2004.

JUDGMENT

JAWWAD S. KHAWAJA, J.---The petitioner feeling aggrieved of an order in original requiring it to make payment of a sum of Rs.3,223,087 as sales tax along with additional tax and penalty of Rs.385,442 has preferred an appeal before the Appellate Tribunal. The Appellate Tribunal vide order, dated 7-2-2002 granted interim relief to the petitioner by ordering stay of the recovery of the aforesaid amount. However, after the lapse of six months from the date of the aforesaid order the said order is no longer effective because of the provisions contained in section 46(7) of the Sales Tax Act.

2. It is contended on behalf of the petitioner that even, though the petitioner's appeal is still pending before the Appellate Tribunal and despite the fact the said Tribunal considered it fit to stay the recovery of the aforesaid amounts, the Appellate Tribunal is not in a position to extend the interim order because of the express provisions of section 46(7) referred to above.

3. It is in the above circumstances, contended by learned counsel that an order directing the stay of the above-referred amounts can be passed by the High Court in exercise of constitutional jurisdiction because of the circumstances narrated above which show that the remedy before the learned Appellate `Tribunal is no longer available to the petitioner as far as interim relief is concerned. The aforesaid contention appears to be well-founded.

4. Learned counsel for the respondent has, however, referred to the case titled Messrs Karim Containers (Pvt.) Ltd. v: Customs, Central Exercise 2003 PTD 1106 to argue that after the expiration of six months from the date on which the interim relief was allowed to the petitioner by the Tribunal, further interim relief cannot be granted. I have gone through the cited precedent and note that it proceeds on considerations different from those arising in the present case. In the precedent case the learned Bench of the Sindh High Court was merely considering the legal proposition as to whether the provisions of Order XXXIX rule 2(2-B), C.P.C. could be applied to the proceedings before the Tribunal. It was held by the Court that these provisions could not be applied to proceedings before the Tribunal.

5. This, however, is not a matter for consideration in the present case. The petitioner's case has only been adjudicated by a departmental adjudicating authority. The appeal before the Tribunal provides to the petitioner the first independent forum to impugn the adjudication made by the departmental adjudicating authority. It is equally clear that the Tribunal, in the circumstances of the petitioner's case, had considered it fit to grant interim relief to the petitioner. It is on account of the provisions contained in section 46(7) of the Sales Tax Act that the interim relief granted to the petitioner, has lapsed.

6. The above circumstances do not, in any manner, impinge upon this Court's constitutional power to grant relief under Article 199 of the Constitution, particularly, where an alternate remedy is either not available or becomes unavailable to a petitioner because of any sub-constitutional legislation such as the Sales Tax Act.

7. While the provisions of section 46(7) of the Sales Tax Act impose a constraint on the powers of the Tribunal, the State is equally obliged to ensure that there is adequate capacity in the Tribunal to dispose of cases within the maximum period of ninety days specified in section 46(7) of the Sales Tax Act. There is an apparent failing of the State on this score as the Tribunal is over burdened and there are, at present, approximately 1500 appeals pending for more than ninety days before its Benches at Lahore.

8. This petition is, therefore, allowed and it is directed that the amounts impugned by the petitioner, in its appeal before the learned Appellate Tribunal, shall not be recovered from the petitioner during the pendency of the aforesaid appeal. This order, however, shall be subject to the provisions of Article 199 of the Constitution.

M.B.A./Y-2/L????????????????????????????????????????????????????????????????????????????????????? Petition allowed.