COLLECTOR, SALES TAX AND CENTRAL EXCISE VS EVIAN FATS AND OIL (PVT.) LTD.

2007 P T D 1418

[Karachi High Court]

Before Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain, JJ

COLLECTOR, SALES TAX AND CENTRAL EXCISE

Versus

EVIAN FATS AND OIL (PVT.) LTD.

S. Sales Tax A. No. 620 of 2003.

Sales Tax Act (VII of 1990)-

----S.47---Appeal to High Court---Limitation---Delay---Attested copy of impugned order of the Tribunal was delivered in the office of appellant/ Collector on 13-5-2003---Prescribed period of sixty days for filing appeal to High Court against order of Tribunal was to start running from 13-5-2003, but appeal to High Court was filed on 9-9-2003, after about three months and twenty four days from said date, which was hopelessly barred by time---If any delay was caused in supplying certified copy to relevant branch in the Large Taxpayer Unit, respondent was not responsible for same and the vested right created in his favour could not be taken away for the reason that the delay was caused in the Sales Tax Office---Opposite party could not be penalized for negligent handling of the case by appellant or its counsel---If the officials of the Sales Tax Department were not vigilant enough to file appeal before High Court within period of limitation and were negligent, respondent could not be penalized---Appeal being hopelessly barred by time, stood dismissed in circumstances.

Market Committee v. Cantonment Board, Shorkot, 2001 SCMR 639 rel.

Shakeel Ahmed for Appellant.

Moula Bux Khoso for Respondent.

ORDER

Mr. Moula Bux Khoso, learned counsel for the respondent, has raised objection to the effect that the appeal is hopelessly barred by time. He has pointed out that according to appellant the Photostat copy of the Tribunal's order was received on 4-8-2003 and thereafter, the appeal was filed within the period of limitation calculated from the above date. However, he has submitted that the certified copy of the Tribunal's order is on record which shows that a copy of the Tribunal's order was sent to the respondent as well as Collector, Sales Tax and Central Excise, Karachi East on 12-5-2003 and the attested copy of the dak book maintained by the Tribunal shows that it was delivered in the office of A Collector of Sales Tax and Central Excise, Karachi East on 13-5-2003. He has submitted that the period of limitation shall start running from 13-5-2003 and the appeal filed on 9-9-2003 is hopelessly barred by time.

Mr. Shakeel Ahmed, learned counsel for the appellant, has submitted that the Photostat copy of the Tribunal's order was received on 1-8-2003. A perusal of the certified copy of impugned order shows that he certified copy itself was received on 4-8-2003 and not the Photostat copy in the office of Large Taxpayers Unit.

However, the fact remains that the certified copy of order of Tribunal was required to be sent to the Collector Sales Tax and Central excise, Karachi East, to whom the copy was sent by the office of Tribunal and was duly delivered in the office of the Collector. Thereafter any delay was caused in supplying the certified copy to the relevant ranch in the Large Taxpayers Unit, the respondent is not responsible for it and the vested right created in his favour cannot be taken away for the reason that the delay was caused in the office of the Sales Tax officials.

We are persuaded to agree with the submission of Mr. Moula Bux Khoso and we are fortified in our opinion by the law laid down by the Hon'ble Supreme Court in the case of Market Committee v. Cantonment Board, Shorkot, 2001 SCMR 639, wherein the Hon'ble Supreme Court has held that the opposite party cannot be penalized for negligent handling of the case by the petitioner or its counsel. Thus, if officials of the Sales Tax Department were not vigilant enough to file the appeal before Court within the period of limitation and were negligent, the respondent cannot be penalized in whose favour vested right is created.

For the foregoing reasons it is held that the copy of Tribunal's judgment was duly supplied in the office of Collector of Sales Tax and Central Excise, Karachi East on 13-5-2003, therefore, the appeal filed On B 9-9-2003 is hopelessly barred by time, which stands dismissed in limine.

H.B.T./C-6/K????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.