S.S. TANNERIES through Proprietor VS ASSISTANT COLLECTOR (AUDIT & ENFORCEMENT DIVISION-II), LAHORE, 2009 PTD-LAHORE-HIGH-COURT-LAHORE 1828 (2006)

Sales Tax Act (VII of 1990)---

---Ss. 46(4), second proviso & 48---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of tax pending appeal before Appellate Tribunal in case of lapse of six months period of interim injunction---Validity---Contention of the petitioner was that pursuant to provisions of S.46(4) of the Sales Tax Act, 1990, any interim injunction granted by the Tribunal expired on the lapse of six months and said period having expired in its case, department had commenced recovery proceedings through issuance of notice under S.48 of the Sales Tax Act, 1990---Held, petitioner/assessee shall appear before the Appellate Tribunal through an appropriate application seeking final adjudication of his pending appeal; 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 present order of the High Court, during such period the department shall not press for recovery of the impugned dues through coercive process---Order accordingly.

Sunrise Bottling Company (Pvt.) Ltd. v. Federation of Pakistan 2006 PTD 535; Z.N. Exports (Pvt.) Ltd. v. Collector Sales Tax 2003 PTD 1746 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

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 PTD 1746. 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 No.3 shall not press for recovery of the impugned dues through coercive process. Disposed of in the above terms.

M.B.A./S-172/LOrder accordingly.