YOUSAF SUGAR MILLS LTD. VS GOVERNMENT OF PAKISTAN, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 1461 (2007)

Sales Tax (VII of 1990)---

----S.47---S.R.O. No.463(I)/2007, dated 9-6-2007---Reference to High Court---Counsel for applicant had submitted that whole of the amount of . sales tax had already been paid and it was only the penal amount which was subject-matter of the appeal sought to be filed---Maintainability of application was objected to on the ground that it was not framed in accordance with the provisions of S.47 of the Sales Tax Act, 1990---Defects or default pointed out by counsel for Revenue, were mere ministerial in nature, which did not have any bearing on the merits of the case or the questions which had been proposed---Payment of principal amount of the sales tax was not challenged---Request of the applicant for disposal of appeal in the light of exemption under S.R.O., was allowed.

Ijaz Ahmad Awan for Petitioner.

Muhammad Nawaz Cheema for Respondent.

Date of hearing: 28th November, 2007.

JUDGMENT

NASIM SIKANDAR, J.---This reference application under section 47 of the Sales Tax Act, 1990 seeks framing and return of answer to the following proposed questions of law alleged to have arisen out of the order of the Customs, Excise and Sales Tax Appellate Tribunal, Bench-I, Lahore, dated 12-5-2007:--

(a) Whether the applicant is entitled to the grant of the amnesty announced by C,.B.R./F.B.R. vide S.R.O. No.463(I)/2007, dated 9-6-2007 read with the clarification letter, dated 30-6-2007?

(b) Whether all the registered person/persons are not to be treated equally, justly, fairly according to the demands of propriety and justice?

(c) Whether the show-cause notice involved along with all the subsequent orders and specifically the orders of the Tribunal are not liable to be set aside and have become redundant by virtue of S.R.O. 463(I)/2007, dated 9-6-2007 read with the clarification letter, dated 30-6-2007 of C.B.R.?

(d) Whether the impugned order is not violative of law, against the facts of the case and violative of the referred, relied upon S.R.O. No.463(I)/2007, dated 9-6-2007 read with the clarification letter, dated 30-6-2007 of C.B.R.?

(e) Whether the impugned order is not violative of law and against the facts of the case besides being contrary to the S.R.O. 463(1)/2007, dated 9-6-2007 with the clarification letter, dated 30-6-2007 of C.B.R./F.B.R.?

(f) Whether only a formal order is not required to be passed with this Hon'ble Court, setting aside the impugned Appellate Tribunal's judgment because the patent authority C.B.R./F.B.R. has waived off all the amounts of additional tax and penalty vide the S.R.O. 463(I)/2007, dated 9-6-2007 read with the clarification letter, dated 30-6-2007 of C.B.R.?

(g) Whether the S.R.O. 463(I)/2007, dated 9-6-2007 read with the clarification letter, dated 30-6-2007 of C.B.R./F.B.R. are not applicable to the present case?

(h) Whether the Tribunal adjudged amount of additional tax is required to be paid by the applicant or the amount involved stands waived off vide amnesty S.R.O. 463(1)/2007, dated 9-6-2007 read with the clarification letter, dated-30-6-2007 of C.B.R./F.B.R.?

2. Through that order the learned Members maintained the order-in-appeal, dated 28-2-2006 passed by the Collector (Appeals) Lahore. It was noted that as a result of the adjudication/order-in-original, dated 24-11-2005 passed by the Deputy Collector (Assessment and Processing) LTU Lahore, the short paid amount of sales tax amounting to Rs.5,747,799.9 was recoverable from the petitioner along with the additional tax. Learned Members also expressed the view that the provisions of section 34 of the Sales Tax Act, 1990 made it mandatory that a registered person would be liable to pay default surcharge at the prescribed rate whether the default was wilful or otherwise.

3. At the outset learned counsel for the petitioner submits that whole of the amount of sales tax has already been paid and it is only the penal amount which is subject-matter of this appeal. Further relies upon Notification S.R.O. 463(I)/2007, dated 9th June, 2007 issued by the Revenue Division, Government of Pakistan, Ministry of Finance, Economic Affairs, Islamabad. The S.R.O. in all reads as under: --

"In exercise of the powers conferred by section 34A of the Sales Tax Act, 1990, the Federal Government is pleased to exempt whole of the amount of default surcharge and penalties payable by a person against whom an amount of sales tax is outstanding on account of any audit report or observation, audit report, show-cause notice or any adjudication order, or who has failed to pay any amount of sales tax or claimed inadmissible input tax adjustment or refund due to any reason other than tax fraud, subject to the condition that the outstanding principal amount of sales tax is paid by the 30th June, 2007."

4. This appeal is accordingly requested to be disposed of in terms of the amnesty extended to all registered persons who had paid standing principal amount of sales tax by 30th June, 2007.

5. Learned counsel for the respondent-Revenue objects the maintainability of this application on the ground that it is not framed in accordance with the provisions of section 47 of the Sales Tax Act, 1990. The defects or defaults pointed out by him are mere ministerial in nature which do not have any bearing on the merits of the case or the questions which have been proposed as those of law arising out of the impugned order of the Tribunal. The payment of principal amount of the sales tax however is not challenged. Therefore, without going into the merits of the case we will allow the request of the petitioner for disposal of the appeal in the light of the aforesaid amnesty order/S.R.O., dated 9-6-2007.

H.B.T./Y-3/LOrder accordingly.