TANVEER WEAVING MILLS through Director Finance VS DEPUTY COLLECTOR SALES TAX, 2009 PTD-LAHORE-HIGH-COURT-LAHORE 762 (2009)

(a) Sales Tax Act (VII of 1990)---

----S.36(1)(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Issuance of show-cause on 23-3-2005---Passing of order -in-original on 28-3-2006 after extension of time limit by C.B.R. on 12-12-2005---Plea of assessee was that order-in-original was not valid for having been passed after expiry of 90 days provided under S.36 of Sales Tax Act, 1990; and that C.B.R. had no power to grant an extention---Validity---Period of passing order-in-original after such notice was 90 days, which period could be extended by Collector for proper reasons for another 90 days before expiry of original 90 days---Impugned order was without jurisdiction for having been passed after expiry of one year of issuance of such notice---High Court set aside impugned order in circumstances.

Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Prizada and others 1999 SCMR 2189; Messrs Ahmed Hassan Textile Mills Ltd. through Chairman v. Federation of Pakistan through Secretary of Law, Justice and Human Right Division, Islamabad and 4 others 2005 PTD 2455 ref.

Super Asia v. The Additional Collector and others Writ Petition No.16270 of 2000 rel.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Alternate remedy available to petitioner has to be adequate and efficacious.

M.M. Akram for Petitioner.

Ms. Kausar Parveen for Respondents.

ORDER

KHAWAJA FAROOQ SAEED, J.---Brief facts of the present case are that the petitioner private limited company is engaged in business of weaving of cloth and is duly registered under Sales Tax Act, 1990. The respondents' staff conducted an audit for the period 7 of 1999 to 6 of 2003. Number of discrepancies were pointed out and a show-cause notice, dated 23-4-2005 was issued asking the petitioner to explain as to why a sum of Rs.10,76,204 may not be recovered from him. However, the Order-in-Original No.33 of 2006 is passed on 28-3-2006 which is much after expiry of 90 days period provided in section 36(3) of the Sales Tax Act, 1990. The Central Board of Revenue did extend the time limit for finalization of the order-in-original on 12-12-2005. However, the limitation provided in the said section had already expired. Further, the power to grant an extension was not with Central Board of Revenue. It was, therefore, inter alia argued that the law has allowed the Collector to extend the time for 90 days and that also before the expiry of the earlier time of 90 days. Besides, the total time even after the said extension is only 180 days.

2. So far as the issue as to whether after extension of the notice by the C.B.R. is concerned, the law on the issue is very clear. The provision of section 36 subsection (3) of the Sales Tax Act, 1990, first proviso is very clear on the issue. For ready reference it is re-produced as under:--

"Provided that order under this section shall be made within (ninety) days of issuance of show-cause notice or within such extended period as (the Collector (* * * )) may, for reasons to be recorded in writing, fix, provided that such extended period shall in no case exceed ninety days."

3. As is clear from the language of the above proviso, it has limited the scope of exercising of the jurisdiction after issuance of notice to basically 90 days or such extended period as the Collector after duly recording proper reasons in writing has fixed. However, it is again subject to the limitation in the manner that the said extension also cannot be for more than 90 days. The period for deciding the order-in- original after issuance of a notice under section 36(1) and (3) thus is maximum 180 days including earlier 90 and extended 90 days. Obviously if the extension has been given by the Collector before the expiry of the earlier 90 days.

4. The respondent Legal Advisor did not challenge the dates but vehemently objected to the invocation of the writ jurisdiction directly before this Court. It was said that alternate remedy being available, coming to the Court directly is not appropriate. Reliance is on (1999 SCMR 2189) re: "Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others" as well as (2005 PTD 2455) re: "Messrs Ahmed Hassan Textile Mills Ltd. through Chairman v. Federation of Pakistan through Secretary of Law, Justice and Human Right Division, Islamabad and 4 others". It was, therefore, urged that the case should be left for consideration of the departmental hierarchy as the matter can well be taken care of in the regular appellate jurisdiction of the concerned authorities.

5. It is true that this Court generally does not entertain writ petitions in the case where alternate remedy is available. However, the alternate remedy has to be adequate and efficacious. In the present case, the issue involved is invocation of a proper jurisdiction after expiry of the period provided through proviso to section 36(3) of the Sales Tax Act, 1990.

6. In fact this Court has already in a number of writ jurisdictions have exercised its jurisdiction under such circumstances. The reliance can be placed to the decision in the case of "Super Asia v. The Additional Collector and other" Writ Petition No. 16270 of 2000. This judgment has now been followed in number of other writ petitions, hence, no exception would be required.

7. The facts of the case being very clear and the order-in-original having been finalized after the expiry of one year of the issuance of the show-cause notice was totally without jurisdiction. The same, therefore, is set aside and the writ petition is accordingly disposed of.

S.A.K./T-11/LOrder accordingly.