Messrs S.S. TANNERIES through Proprietor VS ASSISTANT COLLECTOR (AUDIT AND ENFORCEMENT DIVISION-II), SALES TAX AND FEDERAL, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 2721 (2006)

Sales Tax Act (VII of 1990)---

----S.46(4), Second proviso---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interim injunction, expiry of---During pendency of appeal filed by petitioner, interim injunction granted by Sale Tax and Central Excise Appellate Tribunal expired due to lapse of six months and authorities initiated recovery proceedings---Plea raised by petitioner was that if such recovery proceedings would continue, petitioner's statutory remedy of appeal would become infructuous---Validity---High Court directed the petitioner to appear before the Tribunal through an appropriate application seeking final adjudication of his pending appeal--High Court also directed the Tribunal to endeavour to decide petitioner's appeal within a period of three months and during such period authorities were restrained from pressing order for recovery of disputed dues through coercive measures----Petition was allowed accordingly.

Sunrise Bottling Company (Pvt.) Ltd. v. Federation of Pakistan 2006 PTD 535 fol.

Mian Abdul Ghaffar for Petitioner.

Izharul Haq Sheikh for Respondents.

ORDER

UMAR ATA BANDIAL, J.---Learned counsel submits that the petitioner has filed an appeal before the respondent No.2 Customs, Sales Tax and Central Excise Appellate Tribunal ("Tribunal") under Sales Tax Act, 1990. Pursuant to the provisions of section 46(4) second proviso of the said Act, any interim injunction granted by the Tribunal expires on the lapse of six months. In the present case such interim order was granted on 3-10-2005 which expired on 3-4-2006. The respondent-Department has consequently commenced recovery proceedings through issuance of notice under section 48 of the Act on 22-4-2006.

2. Learned counsel for the petitioner contends that if the said recovery proceedings continue, the petitioner's statutory remedy of appeal shall become infructuous and redundant by recovery being effected prior to decision. He relies upon the judgment in Sunrise Bottling Company (Pvt.) Ltd. v. Federation of Pakistan (2006 PTD 535) to support his contentions, the relevant portion of that judgment reads:--

"Learned counsel for the petitioner has referred to the judgment of this Court in the case of Z.N. Exports (Pvt.) Ltd. v. Collector Sales Tax (2003 PTCL 1363). In that case it has been held by this Court that an assessee is entitled to adjudication in respect of his disputed tax liability by at least one independent forum outside the hierarchy of the respondent-Department. Admittedly in this case the impugned liability has been determined by the officers of the respondent-Department and remedy of the petitioner before the learned Appellate Tribunal provides, the independent adjudication of his challenge to the impugned' tax liability..

(2) The Honourable Supreme Court has laid down that access to justice is a fundamental right. In the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), it has been held that an essential feature of such right is the determination of any grievance or dispute by an independent Tribunal."

2. In view of the foregoing observations made in the precedent case and the relief granted therein it is directed that the petitioner shall appear before the learned Appellate Tribunal through an appropriate application seeking final adjudication of his pending appeal. The learned Appellate Tribunal shall endeavour to decide the petitioner's appeal within a period of three months from the date of receipt of certified copy of this order. During such period the respondent Nd.3 shall not press for recovery of the impugned dues through coercive process. Disposed of in the above terms.

M.H./S-165/LOrder accordingly.