MUHAMMAD ASIM VS PROVINCE OF SINDH, 2017 PTD-KARACHI-HIGH-COURT-SINDH 1053 (2016)

Sindh Sales Tax on Services Act (XII of 2011)---

----Ss. 8, 3 & 42A---Show-cause notice---Petitioner impugned issuance of show-cause notice issued to it under the provisions of the Sindh Sales Tax on Services Act, 2011 requiring the petitioner to register/enroll itself under the Sindh Sales Tax on Services Act, 2011---Contention of the petitioner, inter alia, was that it did not provide any taxable services under the Sindh Sales Tax on Services Act, 2011----Validity---Perusal of record revealed that the petitioner had been confronted to explain certain facts relating to its business activity and instead of submitting reply to the said show-cause notice, the petitioner approached the High Court under Art. 199 of the Constitution----High Court observed that the circumstances of the case involved disputed questions of facts, therefore, the same could not be decided on merits---High Court directed the petitioner to submit its reply to the impugned show-cause notice and the Department was directed to ensure that unless and until the submissions made by the petitioner regarding its business activity were examined in terms of the Sindh Sales Tax on Services Act, 2011; the petitioner may not be unnecessarily required to get itself enrolled/registered in terms of the Sindh Sales Tax on Services Act, 2011 and shall not be made liable to pay any sales tax in terms of S. 8 of the Sindh Sales Tax on Services Act, 2011; since the initial burden to bring a person within the charging provisions of the taxing statute rested upon the Department---Constitutional petition was disposed of accordingly.

Messrs Pak Telecommunication Company Ltd., v. Province of Sindh 2015 PTD 2072; Messrs Maritime Agencies (Pvt.) Ltd., v. Assistant Commissioner-II, SRB 2015 PTD 160 and Messrs Mobile Communication Ltd., v. SRB and others 2014 PTD 2048 ref.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2007 SCMR 1357; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969; Feroze Khan v. The State 2012 MLD 1092; Rashed and others v. The Chief Commissioner Karachi and another PLD 1956 W.P. Kar. 474; Muhammad Tufail v. Abdul Ghafoor and others PLD 1958 SC 201; Diwan Ziaul Haq and others v. The Government of West Pakistan PLD 1956 Lah. 358; The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd., and others PLD 2014 SC 1 distinguished.

Mushtaque Hussain Qazi for Petitioner.

Asadullah Shaikh, Meer Hussain, Standing Counsel, Saifullah, A.A.G. and Syed Zain-ul-Abideen Shah, Deputy Commissioner, S.R.B. for Respondents.

Date of hearing: 2nd December, 2016.

ORDER

AQEEL AHMED ABBASI, J.---Through instant petition, petitioner who claims to be a manufacturer of textiles/garments with the brand name of Messrs Asim Jofa, has impugned a show cause notice dated 30th September, 2014 issued by Assistant Commissioner, Unit-17, Sindh Revenue Board, Government of Sindh, requiring the petitioner to get "E-Enrolment/Registration under Sindh Sales Tax on Services Act, 2011. Learned counsel for the petitioner vehemently argues that the petitioner does not provide any taxable services under the Sindh Sales Tax on Services Act, 2011, as fashion designer to any third party, whereas, entire fashion designing is being done by the petitioner for his own purposes and the garments/ cloths, which are being sold in the market with the brand name of Messrs Asim Jofa through his own outlets, as well as, through other distributors. Per learned counsel, the petitioner is not engaged in any taxable activity which may attract the provisions of Sindh Sales Tax on Services Act, 2011, as the petitioner is a manufacturer of garments, whereas, he designs his own brand of clothes which are sold in the market and the sales tax is being paid on such sales/supplies under the Sales Tax Act, 1990. Learned counsel has referred to various Sections of Sindh Sales Tax on Services Act, 2011, including, Sections 2(42A), 3, 4, 8 and 9 of the Act, 2011, and submits that the sale of goods is excluded from the definition of services, therefore, according to learned counsel, the issuance of Show Cause Notice and the proceedings initiated by the Sindh Revenue Board pursuant to impugned Show Cause Notice, under the facts and circumstances of this case, are without jurisdiction and lawful authority. Learned counsel for the petitioner submits that, since the petitioner does not fall within the scope of section 8 of the Act, 2011, therefore, the proceedings initiated by the respondents (SRB) may be declared as illegal and without any lawful authority.

2.Notices were issued to respondents, pursuant to which, comments have been filed on behalf of the respondents, wherein, the claim of the petitioner has been disputed, whereas, objection as to maintainability has been raised.

3.Learned counsel for the respondent No.2 submits that in view of the information gathered by the respondents through Income Tax Department and the advertisement as displayed by the petitioner on the website of the F.B.R., it transpired that the petitioner provides services of make to order to third parties as well, hence, engaged in the taxable activity covered under the definition of providing taxable services as per Sindh Sales Tax on Services Act, 2011. It has been contended by the learned counsel that instant petition is not maintainable as it has been filed against mere issuance of Show-Cause Notice, whereas, the petitioner has been provided an opportunity to explain his position. It has been further contended by the learned counsel for respondent No.2 that through instant petition, disputed facts have been agitated, whereas, Sindh Revenue Board has the authority to examine as to whether any person or class of persons, is engaged in the taxable services as defined under the Sindh Sales Tax on Services Act, 2011, therefore, instant petition being misconceived and premature is not maintainable. In support of his contention, learned counsel has relied upon the following case laws:--

(i)Messrs Pak Telecommunication Company Ltd., v. Province of Sindh (2015 PTD 2072).

(ii)Messrs Maritime Agencies (Pvt.) Ltd., v. Assistant Commissioner-II, SRB (2015 PTD 160).

(iii)Messrs Mobile Communication Ltd., v. SRB and others (2014 PTD 2048).

4.While confronted with such submissions of the learned counsel for the respondents, with particular reference to the objection raised as to maintainability of instant petition, learned counsel for the petitioner submits that if the impugned Show Cause Notice and proceeding initiated by the official respondents suffers from any jurisdictional error or patent illegality, then petition can be maintained under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his contention, learned counsel for the petitioner has placed reliance on the following case laws:--

(i)Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2007 SCMR 1357.

(ii)Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969.

(iii)Feroze Khan v. The State 2012 MLD 1092.

(iv)Rashed and others v. The Chief Commissioner Karachi and another PLD 1956 W.P. Karachi 474.

(v)Muhammad Tufail v. Abdul Ghafoor and others PLD 1958 SC 201.

(vi)Diwan Ziaul Haq and others v. The Government of West Pakistan PLD 1956 (Lahore) 358.

(vii)The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636.

(viii) Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455.

(ix)Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd., and others PLD 2014 SC 1.

5.We have heard the learned counsel for the parties, perused the relevant provisions of the Sindh Sales Tax on Services Act, 2011 with their assistance, and also examined the case law relied upon by the counsel for the parties in support of their contention. From perusal of the record, it appears that at a preliminary stage of the proceedings initiated by the respondents (SRB), through a Show Cause Notice, whereby, the petitioner has been confronted to explain certain facts relating to business activity of the petitioner, the petitioner instead of submitting response to such Show Cause Notice, has directly approached this Court by filing Constitutional Petition under Article 199. Whereas, the respondent is found to be in possession of some information received from of income tax record of the petitioner as well as from the advertisement on the website, whereby, according to respondent (SRB) petitioner provides fashion designing services i.e. "Make to Order" to the third parties as well. While confronted with above position, learned counsel for the petitioner could not properly submit response, however, submitted that as per his instructions, petitioner does not provide fashion designing services to third parties, hence, does not fall within the ambit of Sindh Sales Tax on Services Act, 2011.

6In view of hereinabove facts and circumstances of the case, whereas, certain disputed facts are required to be ascertained, we are not inclined to decide instant petition on merits, and would dispose of instant petition with the directions to the petitioner to submit response of the impugned Show Cause Notice issued by the respondents, whereas, respondents are also directed to ensure that unless and until the submissions made by the learned counsel for the petitioner hereinabove regarding the business activity of the petitioner is examined in terms of the relevant provisions of Sindh Sales Tax on Services Act, 2011, the petitioner may not unnecessary be required to get enrolled as Registered person and shall not be made liable to pay sales tax in terms of section 8 of the Sindh Sales Tax on Services Act, 2011, as the initial burden to bring a person within the scope of the charging provisions of any taxing statute, rests upon departmental authorities. The case law as referred by the learned counsel for the petitioner is not applicable to the facts of the instant petition as instant petition has been filed on mere issuance of Show Cause Notice, which prima-facie does not suffer from any jurisdictional defect, moreover, the petitioner has been provided an opportunity of being heard and to explain the factual and legal position, which may emerge after examining the peculiar facts of instant case.

Accordingly, petition stands disposed of in the above terms along with listed applications.

KMZ/M-191/Sindh Order accordingly.