VS, 2010 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1469 (2010)

Sales Tax Act (VII of 1990)---

----Ss.36---Recovery of tax not levied or short-levied or erroneously refunded---Limitation---Order-in-original was passed beyond the period as prescribed under proviso to subsection (3) of S.36 of the Sales Tax Act, 1990 as the show-cause notice was issued on 11-6-2002 and order- in-original was passed on 9-10-2002 which was beyond the period of 45 days and the period of 45 days was extendable by 90 days but no extension was sought-Department could not indicate that any such extension was sought and was unable to controvert the legal as well as factual position---Appeal of the registered person was accepted by Appellate Tribunal and order-in-original was held to be barred by time and nullity in the eye of law.

2009 PTD 1978 rel.

Khubaib Ahmad for Appellant.

Manzoor Hussain Shad, D.R. for Respondent.

ORDER

Learned counsel for the appellant Registered Person has pointed out, at the very outset of hearing, that Order-in-Original was passed beyond the period as prescribed under proviso to subsection (3) of section 36 of the Sales Tax Act, 1990. He further pointed out from the record that show cause notice was issued on 11-6-2002 and the Order-in-Original was passed on 9-10-2002 which was beyond the period of 45 days, as provided at the relevant time in proviso to the section 36(3). He submitted that the period of 45 days, at the relevant time, was extendable by 90 days but no extension was sought by the Adjudication Officer. He, therefore, contended that Order-in-Original was barred by time, in support; he has placed reliance on Lahore High Court's judgment reported as 2009 PTD 1978.

2. When DR was confronted with these facts, he requested for time to verify from the record as to whether any extension was applied by the Adjudication Officer or not. The case was adjourned on his request. On final date of hearing he appeared along with record but could not indicate that any such extension was sought by the Adjudication Officer. When confronted with the judgments of superior Courts on the issue of limitation he was unable to controvert the legal as well as factual position.

3. Keeping in view the facts and settled legal position on the issue of limitation we have no option but to accept the appeal of the Registered Person. The Order-in-Original is held to be barred by time, therefore, nullity in the eye of law.

Appeal is disposed of accordingly.

C.M.A./81/Tax(Trib.)Appeal accepted.