GULZAR ENGINEERING CO. through Manager VS ASSISTANT COLLECTOR, SALES TAX AND CENTRAL EXCISE, GUJRANWALA, 2009 PTD-LAHORE-HIGH-COURT-LAHORE 1854 (2002)

Sales Tax Act (VII of 1990)---

----S. 46(4)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Contention of the petitioner was that even though the petitioner's appeal was 'still pending before the Appellate Tribunal and despite the fact that Tribunal considered it fit to stay the recovery of the amount of Sales Tax, Appellate Tribunal was not in a position to extend the interim order because of the express provision of S.46(4) of the Sales Tax Act, 1990---Petitioner, in circumstances, sought an order of High Court under Art.199 of the Constitution, directing the stay of the recovery of said amount---Validity---High Court allowed the constitutional petition and directed that the amounts impugned by the petitioner in its appeal before the Appellate Tribunal, shall not be recovered from the petitioner during the pendency of the appeal.

Jowahar A. Naqvi for Petitioner.

A. Karim Malik and Sohail Akhtar for the State.

Date of hearing: 17th May, 2002.

JUDGMENT

JAWWAD S. KHAWAJA, J.---The petitioner feeling aggrieved of an Order-in-Original requiring it to make payment of a sum of Rs.86,40,872 as sales tax and penalty of Rs.4,32,043 has preferred an appeal before the appellate Tribunal. The appellate Tribunal vide order, dated 4-11-1999 granted interim relief to the petitioner by ordering stay of the recovery of the aforesaid amount. The petitioner, as stated by learned counsel, has deposited Rs.13,00,000 out of the said amount. However, after the lapse of six months from the date of the aforesaid order the said order is no longer effective because of the provisions contained in section 46(4) of the Sales Tax Act, 1990.

2. It is contended on behalf of the petitioner that even though the petitioner's appeal is still pending before the appellate Tribunal and despite the fact the said Tribunal considered it fit to stay the recovery of the aforesaid amounts, the appellate Tribunal is not in a position to extend the interim order because of the express provisions of section 46(4) referred to above.

3. It is, in the above circumstances, contended by learned counsel that an order directing the stay of the above referred amounts, can be passed by the High Court in exercise of constitutional jurisdiction because of the circumstances narrated above which show that the remedy before the learned appellate Tribunal is .no longer available to the petitioner as far as interim relief is concerned.

4. The aforesaid contention appears to be well founded. This petition is, therefore, allowed and it is directed that the amounts impugned by the petitioner in its appeal before the learned appellate Tribunal, shall not be recovered from the petitioner during the pendency of the aforesaid appeal. This order, however, shall be subject to the provisions of Article 199 of the Constitution.

5. The learned appellate Tribunal shall try, if its docket so permits, to decide the pending appeal at an earlier date.

M.B.A./G-74/LPetition allowed.