Messrs SHEIKH WAHID-UD-DIN INDUSTRIES (PVT.) LTD. VS ADDITIONAL COLLECTOR SALE TAX II
2006 P T D 336
[Lahore High Court]
Before Nasim Sikandar and Jawwad S. Khawaja, JJ
Messrs SHEIKH WAHID-UD-DIN INDUSTRIES (PVT.) LTD.
Versus
ADDITIONAL COLLECTOR SALE TAX II and another
Custom Appeal No.164-S of 1999, decided on 09/05/2005.
(a) Sales Tax Act (VII of 1990)---
----Ss.3, 6, 22, 23, 26, 33 & 34---S.R.O. 575(I)/98, dated 12-6-1998---Delayed payment of sales tax---Imposition of additional tax and penalty---Assessee claimed to have paid tax before issuance of S.R.O. 575(I)/98, dated 12-6-1998 and show-cause notice---Validity---Amnesty contemplated under such S.R.O. would also be available to cases of taxpayers even pending in appeal---Assessee already having paid tax due would not be burdened with additional tax and penalty, thus, he was entitled to the benefit of amnesty contemplated by the S.R.O.---High Court accepted appeal and set aside impugned orders.
(b) Taxation---
----Amnesty granting legislation both superior as well as subordinate needs to be construed liberally, so that same does not either trap an unwary taxpayer or otherwise succeed in taking away with the other hand while giving it by the one.
Altaf-ur-Rehman Khan for Appellant.
Sultan Mahmood with Izhar-ul-Haq for Respondents.
ORDER
This further appeal under section 47 of the Sales Tax Act, 1990 seeks to challenge an order of Customs, Excise and Sales Tax Appellate Tribunal, Lahore dated 4-11-1999. Through that order a Division Bench of the learned Tribunal maintained the order of the Collector (Appeals) Lahore dated 31-5-1999 rejecting the-appeal of the present appellant.
2. The appellant is a manufacturer of Nut and Bolts having a small unit situated in Kot Lakhpat Industrial Estate, Lahore. It was charged to have paid fixed sales tax after due dates in the two years involved, namely, 1994-95 and 1995-96. The delayed payments having, almost been admitted, the appellant was charged with the contravention of sections 3, 6, 22, 23 and 26 of the Sales Tax Act, 1990. Accordingly it was found liable to pay additional tax under section 33 to the tune of Rs.2,80,740 along with surcharge to be calculated at the time of deposit. Also a penalty of Rs.5,000 was imposed under section 33(4) of the Act.
3. The claim of the appellant that having already paid the whole of the amount of fixed sales tax its case was covered under the amnesty S.R.O. No.575(I)/1998, dated 12-8-1998 was not accepted by the Revenue authorities on the ground that the principal amount of tax having been deposited by the manufacturer/registered person before the issuance of the said S.R.O. dated 12-6-1998 it was not entitled to the amnesty for payment of additional tax and penalty contemplated in that S.R.O.
4. Learned Tribunal maintained the order of the Revenue authorities by making the following observations:---
"After seeing the case record and hearing both sides, we have come to the conclusion that as the appellants willfully withheld the payment of sale tax in time, the liabilities have correctly been adjudged against them by the lower forum. We also find that the appellants are not entitled to any concession in terms of S.R.O. (I)/98, dated 12-6-1998 as their case does not squarely fall in the ambit of this notification. That being so we confirm the orders already passed and dismiss the appeal."
5. After hearing the learned counsel for the parties we are not persuaded to agree that the amnesty S.R.O. No. 575(I)/98; dated 12-6-1998 is not applicable to the case of the present appellant. It needs to be noted that the amnesty contemplated in that S.R.O. as per paras. 2 and 3 thereof was also available to cases of taxpayers pending in appeals. If the interpretation of that S.R.O. as made by the Revenue authorities as well as the Tribunal is accepted then it is likely to create an anomalous situation. It is that whereas the persons who had already paid the amount due will be deprived of the amnesty while those who will pay that amount after the issuance of S.R.O. 575(I)/98 on 12-6-1998 will be spared of the additional tax and penalty. In other words a person who had already paid the due tax to the public exchequer will be burdened with additional tax and penalty while the one who does so after issuance of that notification and having withheld the amount of the tax due from him in the meanwhile will be rewarded by allowing exemption from A penalty and levy of additional tax. This could never be the intention of any superior or subordinate legislation. A person placed in similar factual situation cannot be discriminated against merely for the reason that he has first to be a continuous defaulter on a particular date of grant of amnesty in order to avail the same. The appellant having paid the fixed tax before the issuance of the said S.R.O. but before the issuance of show-cause notice was clearly entitled to the benefit of the amnesty contemplated in the S.R.O. To hold otherwise would be negation of justice fair equal protection of law.
6. It needs to be brought home that the amnesty granting legislation both superior as well as subordinate needs to be construed liberally so that it does not either trap an unwary taxpayer or else otherwise succeeds in taking away with the other hand while giving it by the one. The petitioner having paid the fixed tax due from him is as much entitled to the amnesty contemplated in the said S.R.O. as any other registered person/manufacturer who pays the fixed tax amount after issuance of the S.R.O. To hold otherwise would result in the situation as noted above.
7. Therefore, we will allow this appeal by setting aside the orders of the Revenue authorities as well as the impugned order of the Tribunal. Resultantly the additional tax as well as the penalty imposed against the appellant shall be remitted in toto.
S.A.K./S-438/L?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.