CENTRAL BOARD OF REVENUE, ISLAMABAD VS WAPDA
2014 P T D 1861
[Supreme Court of Pakistan]
Present: Tassaduq Hussain Jillani, Anwar Zaheer Jamali, Asif Saeed Khan Khosa,
Amir Hani Muslim and Muhammad Ather Saeed, JJ
CENTRAL BOARD OF REVENUE, ISLAMABAD and another
Versus
WAPDA and another
Civil Appeals Nos. 1033 to 1037 of 2004, decided on 30/05/2013.
(On appeal against the judgment dated 22-1-2004 of the Lahore High Court, Lahore passed in Writ Petitions Nos. 166, 19483, 19895, 3501 and 3522 of 1996).
(a) Pakistan Water and Power Development Authority Act (XXXI of 1958)---
----Ss. 3 & 8---Pakistan Water and Power Development Authority (WAPDA)---Independent entity---Although WAPDA's affairs to some extent were controlled by the Government but for all practical purposes it was an independent entity authorized to carry out the business of utilization of water and power resources of the country and to generate electricity.
(b) Interpretation of statutes---
----Exemption clause---Interpretation and scope---Exemption clause had to be strictly construed---Person claiming an exemption had to bring his case within the four corners of the exemption and unless he did so he could not be granted exemption.
(c) Central Excise Act (I of 1944)---
----S. 12A & First Sched., Item No.14.14---Pakistan Water and Power Development Authority Act (XXXI of 1958), S.3---Constitution of Pakistan, Arts.165 & 165-A---S.R.O. No.519(I)/1992, dated 25-5-1992---Pakistan Water and Power Development Authority (WAPDA)---Not exempted from levy of excise duty---Whether WAPDA was exempted from excise duty on loans and advances---WAPDA could not claim exemption (from levy of excise duty) on loans and advances made by Banking Companies, Financial Institutions, Insurance Companies, Cooperative Financing Securities and other lending banks or Institutions under item (g) of S.R.O. No.519(I)/1992 dated 25-5-1992 issued under S.12A of Central Excise Act, 1944.
Central Board of Revenue v. SITE PLD 1985 SC 97; Messrs Rice Export Corporation of Pakistan v. Karachi Metropolitan Corporation PLD 1990 Kar. 186; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 and Water and Power Development Authority and another v. Administrator, District Council, Swabi and others NLR 2000 Tax 136 distinguished.
Union Council, Ali Wahan Sukkur v. Associated Cement (Pvt.) Limited 1993 SCMR 468; KDA's case 2005 PTD 2131 and Commissioner Sales Tax and Central Excise v. WAPDA 2007 SCMR 1736 ref.
Sh. Izhar ul Haq, Senior Advocate Supreme Court for Appellants.
Mian Ashiq Hussain, Advocate Supreme Court for Respondent No.1.
Raja M. Aleem Khan Abbasi,D.A.G. On Court notice.
Date of hearing: 30th May, 2013.
JUDGMENT
MUHAMMAD ATHER SAEED, J.---These petitions for leave to appeal have been filed against the judgment dated 22-1-2004 of the learned Lahore High Court, Lahore passed in Writ Petitions Nos.166, 19483, 19895, 3501 and 3522 of 1996 whereby the learned High Court had held that respondent WAPDA was an agency of the Government and thus was exempted from the levy of Excise Duty on loans and advances made by the banking companies, financial institutions, insurance companies, Cooperative financing societies, other lending banks or institutions dealing in advancing of loans, in respect of advances made to any person or party under the provisions of Item No.(g) of S.R.O. 519(1)/92 dated 25-5-1992.
2.Leave to appeal was granted by this Court vide its order dated 3-8-2004, which reads as under:--
"These petitions for leave to appeals have been filed against the judgment dated 22nd January 2004 passed by the Lahore High Court, Lahore whereby Writ Petitions filed by the respondents have been accepted.
2. Precisely stating the facts of the case are that the respondent No.1 is a statutory body established and working under the Water and Power Development Authority Act, 1958. Respondent No.1 obtained loans from respondent No.2 and finance from time to time. Through Finance Act (XII) of 1991, the Central Excise Act, 1944 was amended and inter alia item No.14.14 was added to its First Schedule which reads as follows:--
| "Services provided or rendered by banking companies, financial institutions, insurance companies cooperative financing societies other lending banks orinstitutions dealing in advancing of loans, in respect of advances made to any persons." | 1/12 of 1% of the amount of each advance outstanding on the last working days of each calendar month. |
Later on, vide section 4(8) of the Finance Act, (VII of 1992) the rate of duty was raised to 2%. In exercise of power under section 12-A the Federal Government issued Notification S.R.O. No.555(I)/79 dated 28th June 1979. This notification was amended by another Notification S.R.O. No.519(I)/1992 dated 25th May 1992, item (g) whereof mentioning that there was 'NIL' duty on advances, inter alia, taken by the Government. The respondent No.1 was called upon to make payment of the excise duty from time to time. Instead of making payment the respondent No.1 approached the learned Lahore High Court in extraordinary writ jurisdiction claiming that the exemptions available to the Government under S.R.O. No.519(I)/1992 were available to respondent No.1 and nothing was due as excise duty on advances. The writ petition filed by the respondent No.1 has been accepted by means of impugned judgment as such instant petition for leave to appeal has been filed.
3. Learned counsel for the petitioners contended that:--
(a)Respondent WAPDA is not a Government Authority/functionary for the purpose of exemption from the payment of Central Excise Duty on services in the shape of Banks loans under the provisions of Notification No.S.R.O. No.519(I)/92 dated 25th May, 1992.
(b)Under Articles 165 and 165-A of the Constitution of Islamic Republic of Pakistan, 1973, the Government is empowered to impose tax upon the corporation likewise WAPDA etc.
(c)Learned High Court legally has not justified to declare that the WAPDA is a government functionary for the purpose of exemption of Excise Tax in view of the judgment reported in the cases of Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 and WAPDA and another v. Administrator, District Council, Swabi etc. NLR 2000 Tax 136 because both these judgments deal altogether different subject and it has not been held therein that the WAPDA is Government functionary.
After hearing the learned counsel for the petitioners and having gone through the relevant Constitutional provisions and judgments on the subject, we are inclined to grant leave to appeal, inter alia, to examine the contentions put forward on behalf of the petitioners. As question of interpretation of Constitutional provisions is involved in this case, therefore, notice to Attorney General for Pakistan be also issued."
3.In these cases the legal point involved is as to whether WAPDA which is admittedly a statutory body wholly controlled by the Government of Pakistan and came into being on promulgation of Water and Power Development Authority Act, 1958, can be treated as an agency of the Government or Federal Government and become entitled to the exemption from taxes which is available to the Federal Government. The Government through Finance Act (XII) of 1991 incorporated, inter alia, item No.14.14 in the First Schedule of Central Excise and Salt Act, 1944, which reads as under:-
| "Services provided or rendered by banking companies, financial institutions, insurance companies cooperative financing societies other lending banks orinstitutions dealing in advancing of loans, in respect of advances made to any persons." | 1/12 of 1% of the amount of each advance outstanding on the last working days of each calendar month. |
4.Vide Finance Act (VII of 1992) this item No.14.4 was further amended to raise the Excise Duty to 2% on the advances. The Federal Government then exercising its powers under the Central Excise and Salt Act, 1944, made amendments and also granted various exemption to such duty by issuance of various notifications which included S.R.O. No.519(I)/1992 dated 25-5-1992 which reads as under:-
"In exercise of the powers conferred by subsection (1) of section 12-A of the Central Excise and Salt Act, 1944 (1 of 1944) the Federal Government is pleased to direct that the following further amendments shall be made in its Notification No.S.R.O.555(I)/79 dated 28th June 1979, namely,
In the aforesaid Notification is Table II, in column (II), in item No.14.14 for the entries relating thereto in columns (2) and (3) the following shall be substituted namely:--
| (a) | . | | |
| (b) | .. | | |
| (c) | .. | | |
| (d) | .. | | |
| (e) | .. | | |
| (f) | . | | |
| (g) | Advances taken by the Government or by a Banking Company, a Financial Institution, an Insurance Company, a Cooperative financing society and other lending bank or institution." | | Nil |
5.The respondent claimed exemption from the CBR on the basis of amendments made in the First Schedule of Central Excise and Salt Act, 1944 for the alleged reason that they are Government agency and entitled to the exemption provided in clause (g) of S.R.O.No.519(I)/92 reproduced hereinabove and on failure to get relief from the CBR filed constitutional petitions before the learned Lahore High Court which were disposed of in their favour vide the impugned judgment. Hence, these appeals by the leave of the Court.
6.We have heard Sh. Izhar-ul-Haque, learned Senior Advocate Supreme Court for the appellants, Mr. Ashiq Hussain, learned Advocate Supreme Court for the respondent WAPDA and Raja M. Aleem Khan Abbasi, learned DAG on Court notice.
7.The learned Senior Advocate Supreme Court for the appellants argued that the learned Lahore High Court had fallen in error when it had held that WAPDA is basically a department of the Government and is functioning as Government authority/agency and is therefore entitled to the same exemptions as admissible to the Government in terms of Article 165 of the Constitution. He further submitted that under section 3 of the WAPDA Act the respondent is a corporation entitled to own property and therefore is a separate entity from the Government. It is also evident from the provisions of sections 13 and 22 of the WAPDA Act whereby WAPDA is liable to pay Government cost of consultancy and advice and is also granted loans by the Government. As such being a corporate entity having its own seal and own business, WAPDA cannot be considered to be a department of the Government and is therefore not entitled to exemption under Article 165-A of the Constitution. He submitted that the learned Single Judge relied on the judgment of this Court in the case of CBR v. SITE reported in (PLD 1985 SC 97) in which it was held that the veil of incorporation can be lifted to decide whether the corporation should be treated as Government. He submitted that learned Single Judge did not realize that his case was decided in 1984 before the incorporation of Article 165-A of the Constitution. Sub-Article (3) of which provides that judgment or order of any Court or Tribunal including the Supreme Court and a High Court which is against the provisions of clauses 1 and 2 of the Article 165-A of the Constitution should be deemed to be void and of no effect whatsoever. He submitted that the Government has been defined in sub-clause (21) of section 3 of the General Clauses Act as under:-
"'Government' or 'the Government' shall include both the Central Government and any Provincial Government"
And therefore, the definition cannot be extended to those statutory corporations which are administered by the Government or where total shares or maximum shares are held by the government. He further argued that the learned High Court has also failed to appreciate those cases in which it has been held that after incorporation of Article 165-A in the Constitution, it has become impermissible to lift veil of incorporation in determining whether the corporate entity functions as department of Government or not. He, therefore, prayed that the impugned judgment being based on wrong premises may be set aside and it may be declared that WAPDA is liable to pay central excise duty in accordance with item No.14.4 of the Finance Act (VII of 1992) and first schedule of Central Excise and Salt Act, 1944 as amended by S.R.O. No.519(I)/1992 dated 25-5-1992.
8.The learned D.A.G. adopted the arguments of the learned Senior Advocate Supreme Court for the appellants and submitted that WAPDA is not Government in terms of impugned S.R.O. and is not entitled to exemption under Article 165 of the Constitution. He said after incorporation of Article 165-A in the Constitution, this Court and the High Courts have regularly held that after this incorporation lifting of veil for taxability has become impermissible and lifting of veil is only allowed to prevent evasion of taxes and not in aid of exemption from taxes. In support of his contentions, he relied on the following judgments:--
*KDA v. CBR which was decided in 1991 but was reported in 2005 PTD 2131.
*Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Ltd. reported in 1993 SCMR 468.
*CBR v. WAPDA 2005 SCMR 1846
*Messrs PUB Corporation v. Water and Power Development Authority and others PLD 2009 Kar. 139
The learned DAG submitted that the learned Lahore High Court has also relied on the judgment of this Court in the case of Gadoon Textile Mills (quoted supra) and also reproduced extracts from this judgment in the impugned judgment. He further submitted that this judgment did not deal with the exemption of WAPDA from taxes and the learned High Court had failed to point out as to what analogy he was drawing from this judgment and even if, it is assumed that he was inferring from the extracts reproduced that WAPDA was a department of Government or a Government agency, he has failed to specify as to on what basis he was drawing this inference. He therefore submitted that the impugned judgment being meritless may be set aside and the writ petition filed by the respondent be dismissed.
9.The learned Advocate Supreme Court for the respondent strongly opposed the arguments of the learned Advocate Supreme Court for the petitioner and the learned D.A.G. and supported the impugned judgment. He reiterated the arguments made before the learned High Court. He stated that the respondent by its constitution and function is a government authority/Agency and has been entrusted with the same functions as were performed before 1958 by the Provincial Governments. According to him, WAPDA enjoyed exemption from payment of income tax and therefore likewise was entitled to exemption from excise duties especially on the services as it has been exempted on loans taken by the Government under item 'g' of Notification No.S.R.O.519(I)92 dated 25-2-1992. In support of his contentions the learned Advocate Supreme Court relied on the following judgments:---
Central Board of Revenue v. SITE (PLD 1985 Supreme Court 971)
Chairman District Council, Rahim Yar Khan v. United Bank Limited, Rahim Yar Khan (1989 CLC 1397)
Messrs Rice Export Corporation of Pakistan v. Karachi Metropolitan Corporation (PLD 1990 Karachi 186)
Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641)
Water and Power Development Authority and Ghazi Barotha Contractors v. Administrator, District Council, Swabi, etc. (NLR 2000 Tax 136).
He therefore prayed that the appeal being meritless may be dismissed.
10.We have examined the case in the light of the arguments of the learned Advocate Supreme Courts and also perused the relevant record including the impugned judgment, impugned notifications and have carefully gone through the judgments relied on by learned counsel for the parties.
11.We have seen that in the impugned judgment the learned Lahore High Court has relied on the status of WAPDA as was determined by this Court in its judgment in the case of Gadoon Textile Limited and 18 others v. WAPDA reported in 1997 SCMR 641. The learned High Court has also relied on the judgment of the Division Bench of the Peshawar High Court which also determined the status of WAPDA in the case of Water and Power Development Authority and another v. Administrator District Council Swabi and others reported in NLR 2000 Tax 136 had held that WAPDA is entitled to the same exemptions as are admissible to the Federal Government under Article 165 of the Constitution.
12.In the light of the above, we have perused the WAPDA Act, 1958 and the factual position which emerges from this Act is detailed below:--
(a)WAPDA came into being on account of promulgation of West Pakistan Water and Power Development Authority Act, 1958 under the provisions of subsection (2) of section 3 of the Act which is body corporate which is entitled to acquire, hold and dispose of property having perpetual succession and common seal and entitled to sue and be sued.
(b) The power to dispose of the property has also been conferred upon the authority by virtue of the amendment incorporated by the Act VII of 1994 dated 6-7-1994. Section 8 of the Act provides that the authority shall prepare for the approval of the government a comprehensive plan for the development and utilization of the water and power resources on a unified and multi purpose basis.
(c)Subsection (2) of section 8 of the Act provides that authority shall privatize or otherwise restructure any operation of the authority except the hydel generating power stations and the National Transmission Grid. It may enter into joint venture inter alia with any other corporation / company and it may even purchase bulk power for private sector.
(d)Section 12 provides that the Authority for the purpose of Electricity Act, 1910 WAPDA shall be deemed to be a licensee and shall have all the powers and discharge all obligations of the licensee under the said Act. Under the provisions of the above section, certain powers under sections 3 to 11, subsections (2) and (3) of section 21 and sections 22, 23 and 27 or in clauses I to XII of the Schedule to the said Act relate to the duties and obligations of licensee.
(e)Section 23 provides that the Authority shall be deemed to be a local Authority under the Local Authorities Loan Act for the purpose of borrowing money under the said Act and making and execution of any claim under the Act shall be deemed to be a work which it is duly authorized to carry out.
(f)Section 24 of the Act limits the liability of the government by providing that the liability of the government to the creditors of the authority shall be limited to the extent of the grant made by the government and the loan raised by the authority with the sanction of the government.
(g)According to rules of business Ministry of Water and Development is one of the Federal government agency having Water and Power Division, as its Division.
13.From the above analysis it is seen that although WAPDA's affairs to some extent are controlled by the government but for all practical purposes it is an independent entity and authorized to carry out the business of utilization of water and power resources of the country and to generate electricity and in this connection has been given a freehand.
14.In the light of the above analysis we have examined the impugned judgment and have seen that the learned Lahore High Court has strongly relied on the SITE's judgment quoted supra and the judgment of the WAPDA v. Administrator, District Council and the judgment of Peshawar High Court in the case of Water and Power Development Corporation v. Administrator, District Council, Swabi, quoted supra. The learned High Court has relied on the judgment of SITE Limited quoted supra whereby this Court after lifting veil of the incorporation had held that SITE was thus exempted from levy of tax being agency or the authority of the government. What the learned High Court has failed to note is that this judgment was passed on 5th September 1984 and after passing of this judgment, Article 165-A was incorporated in the Constitution of the Islamic Republic of Pakistan which authorizes the Majlis-e-Shoora to impose tax on the income of certain corporations etc. and subsection (2) of this Article provides that all proceedings taken and acts done by any authority or persons including this Court or the High Court shall be deemed to be in exercise of the powers referred to in sub-clause (1) and shall notwithstanding any judgments of the Courts shall be deemed to have been made or taken in accordance with law and shall not be called in question in any Court, this Court or the High Court on any ground whatsoever.
15.The learned High Court has also failed to notice that after the incorporation of Article 165-A, in a number of cases including the case of Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Limited reported in 1993 SCMR 468, this Court has categorically held that unveiling of corporate veil is no longer admissible. This was also held in the case of KDA reported in 2005 PTD 2131.
16.We will initially discuss the judgments relied on by the learned High Court on which the learned High Court based its decision. As already pointed out, the SITE case referred supra is no longer good law and much water has flown under the bridge and subsequent judgments have held that lifting of veil of the incorporation is no longer permissible. In this connection it would be relevant to reproduce the following extract from the judgment of this Court in the KDA case quoted supra where the Honourable Court has held as under:--
"7. It is true that what is mentioned in Article 165-A(1) of the Constitution is limited to the levy of income-tax. Nevertheless, the purpose, the object and the field of Article 165-A of the Constitution is to fix the legal ownership of the property and the identity of the receipt of the income. This has been achieved by reinforcing the statutory corporate veil for all fiscal purposes. The lifting of the corporate veil as such is no longer permissible and the distinct juristic personality of the incorporated or statutory body has been recognized notwithstanding the control, the destination and the functioning of such bodies. Such a declaratory law would certainly stand in the way of the appellant because the same distinction which was sought to be created by lifting the veil in the matter of the income tax is sought to be achieved in the matter of sales tax."
17.Coming to the case of Rice Export Corporation of Pakistan v. Karachi Metropolitan Corporation PLD 1990 Karachi 186 where the honourable High Court has held that Rice Export Corporation was not liable to pay excise duty. We would like to refer again to the judgment of this Court in the case of Union Council, Ali Wahan, Sukkur v. Associated Cement Private Limited, in which it was held that Associated Cement was liable to pay excise duty. Mr. Justice Saleem Akhtar who was a member of the Bench and also a member of the Bench of the High Court which passed the judgment in the Rice Export Corporation's case clarified this position as under:---
"In Rice Export Corporation of Pakistan Ltd. v. K.M.C. PLD 1990 Kar. 186, the petitioner had challenged the levy of octroi duty on the plea that the goods on which levy was made belonged to the Federal Government. On the factual side it was noted that similar functions performed by Rice Export Corporation were being performed by the Director-General Food in the Ministry of Food and Agriculture, Government of Pakistan and therefore it (RECP) was performing the function of the Federal Government and entitled to relief. In this case apart from the distinguishing feature mentioned above, RECP was the sole person exporting rice from Pakistan. In the present case the Cement Corporation is not the sole manufacturer of cement in Pakistan. There are several other corporations which are engaged in this business activity. Where a Government owns, controls and manages a corporation which is engaged in a commercial activity competing with other public/private companies engaged in similar business, the Corporation can hardly claim any privilege or immunity to the disadvantage of its competitors, subject to these observations in my view the appeal may be allowed with no order as to costs."
18.It is an admitted fact that there are several other private companies carrying on the business of generation and sale of electricity.
19.The learned judge has also relied on the judgment of Peshawar High Court in Ghazi Barotha Contractors v. Administrator, District Council, Swabi, etc, reported in NLR 2000 Tax 136. However the learned judge was apparently not aware that this matter reached this Court and this Court passed judgment in the case of WAPDA v. Administrator District Council Swabi reported in 2005 SCMR 487. In this judgment this Court has held as under:-
"12. This was with regard to the grounds, as such, of the exemption but another very important aspect of the case is altogether different and not at all related to the aforesaid exemptions. The fact is that the District Council has imposed export tax and educational cess not on WAPDA but on Ghazi Barotha Contractors, and the same had continuously been paid for a long time. The contractors, by no stretch of imagination or arguments can equate them with the Federal Government nor have they claimed so. This is proved by their conduct of having paid such tax for a considerably long time, constituting against them estoppel as well. The WAPDA has stepped in merely because such payments are to be reimbursed by it to the contractor. This reimbursement is a pure and personal contractual liability shouldered by WAPDA itself in para. 9 of written contract. The learned High Court has elaborately dealt with this aspect of the case. Rather this aspect has mainly prevailed with the High Court while dismissing the writ petition. We fully agree that the actual imposition of the tax is on the contractor who cannot be exempted therefrom. Whatever WAPDA has undertaken qua the reimbursement thereof is a pure contractual liability and now it cannot be evaded on the pretext of exemptions, which otherwise are not available. On the one hand, WAPDA realizes that various taxes or cesses are most likely to be imposed on the contractor but when so imposed as well as recovered, the reimbursement thereof is now practically avoided."
20.From the perusal of this extract from the judgment of this Court, it is seen that this Court has held that the taxes were payable by Ghazi Barotha contractors and the WAPDA has just reimbursed it and even the WAPDA was exempted of tax this reimbursement was a pure and personal contractual liability chosen by WAPDA itself, and therefore this Court has held that actual imposition of the tax was on the contractor who cannot be exempted thereof. When we view item No.14.14 in the First Schedule to the Central and Excise Act, 1944 which is again reproduced for the sake of convenience:--
| "Service provided or rendered by banking companies, finan-cial institutions, insurance companies, cooperative financing societies, other lending banks or institutions dealing in advancing of loans, in respect of advances made to any persons." | 1/12 of 1% of the amount of each advance outstanding on the last working days of each calendar month. |
21.It becomes clear from a perusal of the above law that excise duty has been actually levied on the service provided or rendered by the banking companies etc. and their liability has been reimbursed by the persons who had taken loan from them, and therefore under the above judgment since the liability was not actually of WAPDA but of the banks and has been paid by WAPDA, exemption can not be granted to the WAPDA on such excise duty.
22.The next case on which reliance was placed by the learned High Court was of Messrs Gadoon Textile Mills quoted supra however apparently it shows that there was a dispute between the Textile Mill and WAPDA tariff and although WAPDA's functions have been detailed but the question of its exemption from the tax does not arise in that case and therefore this judgment is completely irrelevant.
23.We are therefore of the view that the judgments on which reliance was placed by the learned Lahore High Court while granting exemption to WAPDA are irrelevant and do not support such exemption.
24.We now take up the judgment of this Court in the case of KDA quoted supra where this Court while denying exemption to KDA which is also statutory body like WAPDA, has held as under:--
"6. We find that by statutory dispensation a juristic personality is created which is distinct from that of the Government. Such a juristic personality is then entrusted with the statutory duties, some of which or all of which may partake of the functions of the Government both sovereign and non-sovereign. In the case in hand, we are concerned with the welfare activity of the Government which has been passed on to the K.D.A. It is not wholly for the discharge of sovereign functions as such. Nevertheless, the distinction that was sought to be established on the strength of Article 165 of the Constitution for the purposes of taxability between the property and income of the Government under statutory veil and the property and income of Government under no such veil has been brought to an end. The ultimate ownership of the property or the destination of the income has ceased to be the test. The statutory veil holds good for the purposes of determining the ownership of the property as well as its income."
25.In our opinion this judgment clinches the issue in favour of the Revenue. It is a settled law that a person claiming exemption has to bring his case within the four-corners of exemption and unless he does so he can not be granted exemption and apparently all the facts of the case and the arguments of the learned ASC for the respondents/WAPDA lead to the conclusion that this onus has not been properly discharged and therefore since exemption clause has to be strictly construed we are not in a position to allow this exemption to WAPDA. This Court in a number of cases dealt with tax liability of WAPDA and has held that WAPDA was liable to different taxes. To quote a couple of such cases, in the case of Commissioner Sales Tax and Central Excise v. WAPDA reported in 2007 SCMR 1736, WAPDA was declared to be liable for sales tax. In the case of Pakistan Corporation Duty, the learned Sindh High Court has held that WAPDA was not exempted from any tax under Article 165 or 165-A of the Constitution.
26.From the above discussion we are satisfied that the impugned judgment cannot be sustained and therefore after hearing the learned counsel on 30-5-2013 we had passed the following short order:--
"For reasons to be recorded later in the detailed judgment these appeals are allowed, the impugned judgment is set aside with no order as to costs and it is held that respondent No.1 WAPDA cannot claim exemption under Notification S.R.O. No.519(I)/92 dated 25-5-1992 issued under section 12-A of the Central Excise and Salt Act, 1944."
The above are the reasons in support of the short order.
MWA/C-3/SAppeal allowed.