COMMISSIONER INLAND REVENUE, ZONE-II, REGIONAL TAX OFFICE SUKKUR VS JAVED AHMED SHAIKH MIAN BAZAR, NASIRABAD LARKANA, 2015 PTD-KARACHI-HIGH-COURT-SINDH 809 (2014)

Sales Tax Act (VII of 1990)---

----S.47(1)---Reference to High Court---New plea, raising of---Questions formulated by authorities were not raised before Appellate Tribunal Inland Revenue---Effect---Question which was neither raised nor argued by authorities or decided by Appellate Tribunal Inland Revenue could not be treated as a question of law arising out of the order of the Tribunal---Questions proposed through reference application did not arise from order passed by Appellate Tribunal Inland Revenue---Reference was dismissed in circumstances.

Messrs Ahmad Karachi Halva Merchants and Ahmad Food Products v. The Commissioner of Income Tax, South Zone, Karachi 1982 SCMR 489 and Messrs Japan Storage Battery Ltd., v. Commissioner of Income Tax, Companies Zone-I, Karachi 2003 PTD 2849 rel.

S. Mohsin Imam for Applicant.

Nemo for Respondent.

Date of hearing: 21st May, 2014.

ORDER

AQEEL AHMED ABBASI, J.---Through instant sales tax reference application, the applicant has proposed the following questions, which according to the learned counsel, are the questions of law arising from the impugned order dated 12-5-2011 passed by the Appellate Tribunal Inland Revenue (Pakistan) Karachi in S.T.A. No. 02/K-2011.

(1)Whether in the facts and circumstances of the case, the learned Tribunal was justified to uphold the Commissioner Inland Revenue (A) order dated 22-9-2010, which was passed in an appeal instituted on 12-7-2010 against an ONO delivered on 21-4-2005 after lapse of 5 years. The Appeal was hit by time limitation.

(2)Whether the learned Commissioner Inland Revenue (A) was justified to hear the Appeal No.34/2010 against the order No.130/2005, in which he has already rejected the previous appeal vide order No.190/2006 dated 2-1-2006, being hit by the time limitation.

(3)Whether the learned Tribunal was justified to hear the Sales Tax Appeal No.02/K-2011 against the Collector (Appeals) order No.190/2006, in which the Tribunal has already rejected the second appeal vide order No.H-183/2006 dated 12-2-2007.

2.Learned counsel for the applicant submits that in the instant case against order-in-original i.e. Order-in-Original No.130/2005 dated 21-4-2005, two orders have been passed by the Commissioner (Appeals), whereas the subsequent order-in-appeal was passed after a lapse of about 5 years from the date of order-in-original, hence was time barred. However, according to learned counsel, the Appellate Tribunal Inland Revenue (Pakistan) Karachi has failed to examine this factual aspect of the case and has not decided the point of limitation in the instant matter. It has been prayed that the impugned order may be set aside and the questions proposed through instant reference application may be answered in favour of the applicant.

3.We have heard the learned counsel for the applicant and perused the order passed by the forums below in the instant case. From perusal of the record and the order of the Appellate Tribunal Inland Revenue (Pakistan) Karachi in the instant case, it appears that the facts as stated by the learned counsel for the applicant through instant reference application were not stated before the Commissioner Inland Revenue (Appeals) or even before the Appellate Tribunal Inland Revenue (Pakistan) Karachi, who have decided the case on merits without recording any finding with regard to limitation in the instant case. It has been further noted that no such ground was either raised nor was argued on behalf of the applicant before the forums below. Moreover, from perusal of the impugned order passed by the Appellate Tribunal Inland Revenue (Pakistan) Karachi in the instant case, it has been observed that none of the questions proposed through instant reference application arise from the order of the Appellate Tribunal as neither any ground in this regard was raised by the applicant nor there has been any discussion, or finding on such grounds has been recorded by the Appellate Tribunal Inland Revenue (Pakistan) Karachi to this effect. It is settled legal position that the scope and the jurisdiction as vested in this Court in exercise of its reference jurisdiction under section 47(1) of the Sales Tax Act, 1990 or for that purpose under section 196 of the Customs Act, 1969 and section 133(1) of the Income Tax Ordinance, 2001 is limited to the extent of examining and recording the finding on a question of law, which may arise from the order passed by the Appellate Tribunal in Appeal. It is also settled legal position that a question which is neither raised nor argued by the applicant or his counsel, or decided by the Appellate Tribunal cannot be treated as a question of law arising out of the order of the Appellate Tribunal, hence, cannot be raised for the first time before this Court by agitating fresh controversy altogether. Reference in this regard can be made to the case of Messrs Ahmad Karachi HaIva Merchants and Ahmad Food Products v. The Commissioner of Income Tax, South Zone, Karachi 1982 SCMR 489 and Messrs Japan Storage Battery Ltd. v. Commissioner of Income Tax, Companies Zone-1, Karachi 2003 PTD 2849.

4.While confronted with above factual and legal position, learned counsel for the applicant could not controvert the settled legal position as stated hereinabove, however, it has been stated that the applicant may be allowed to file rectification application before the Appellate Tribunal Inland Revenue (Pakistan) Karachi to state the facts as stated hereinabove so that, after examining the actual facts the Appellate Tribunal may pass appropriate order in accordance with law.

5.Since, admittedly the questions proposed through instant reference application do not arise from the impugned order passed by the Appellate Tribunal Inland Revenue (Pakistan) Karachi, therefore, instant reference application being devoid of any merits, is hereby dismissed in limine. However, the applicant is at liberty to file proper proceedings before the appropriate forums, which may be available to the applicant under the facts and circumstances of the instant case, in accordance with law.

Reference Application is hereby dismissed in limine.

MH/C-11/SindhReference dismissed.