COLLECTOR, SALES TAX AND FEDERAL EXCISE VS IMRAN PIPE MILLS (PVT.) LTD., 2017 PTD-LAHORE-HIGH-COURT-LAHORE 2208 (2016)

Sales Tax Act (VII of 1990)---

----S. 47---Reference / appeal to High Court---Nature of jurisdiction of High Court under S.47 of the Sales Tax Act, 1990---Question of law, determination of---Scope---Questions before the High Court involved the order of the Appellate Tribunal whereby proceedings against taxpayer were dismissed on ground of incomplete record furnished by Department---Validity---Perusal of Appellate Tribunal's order revealed that incomplete record was produced by the Department, maintenance of which was denied by the taxpayer, and Appellate Tribunal concluded that the Department had failed to establish charges against taxpayer---High Court observed that no question of law arose out of the Appellate Tribunal's order and declined to exercise jurisdiction under S.47 of the Sales Tax Act, 1990, accordingly.

Commissioner Inland Revenue v. Messrs Macca CNG Gas Enterprises and others 2015 PTD 515 and Commissioner of Income Tax v. Messrs Multan Fabrics (Pvt.) Ltd. and another 2013 PTD 2077 ref.

Ch. Imtiaz Elahi for Applicant.

Waheed Shahzad Butt for Respondent.

ORDER

SHAHID JAMIL KHAN, J.---In this Reference Application, number of questions are proposed for our opinion, which are argumentative in nature. Learned counsel for the applicant is confronted to show how any question of law is arising out of order dated 26.06.2007 passed by Customs, Federal Excise and Sales Tax Appellate Tribunal ("Appellate Tribunal"). He submits that Appellate Tribunal has neither considered nor appreciated the record produced by department before it.

2.Learned counsel for the respondent submits that decision by Appellate Tribunal is based on findings of fact and no question of law is arising out of it. For this submission, he placed reliance on Commissioner Inland Revenue v. Messrs Macca CNG Gas Enterprises and others (2015 PTD 515) and Commissioner of Income Tax v. Messrs Multan Fabrics (Pvt.) Ltd. and another (2013 PTD 2077).

3.Heard, record perused.

4.Relevant part from Appellate Tribunal's order is reproduced hereunder:--

"5. We have gone through the facts on record and heard the parties. The emergent position is that the entire case of the department is based on some private record statedly resumed from the respondent's premises during the course of audit which the department failed to produce before the adjudicating officer despite several opportunities given. As a result, their case failed and the charges against the respondent were with-drawn. We have also observed that in the memo. of appeal, it has been stated that the record had been traced out and attached with the appeal but actually no record has been attached with the appeal. During the course of hearing on 18.06.2007, learned D.R. produced photo copies of certain record which showed only some names, quantities and dates but no material particulars to support the department's case. The respondent's counsel denied any such record maintained by the respondent and stated that the same was cooked up by the department as an afterthought to mislead the court. We have seen the contents of the record, which mentions only quantities in kgs, dates and name without any details regarding description of goods, addresses etc. and, therefore, do not establish any link with the department's case. To a question whether the department conducted any investigation with reference to the contents of this record, before instituting a case of tax fraud/evasion against the respondent, learned D.R. replied in the negative.

6. After considering all aspects of the case, we find that the appellant Collectorate has failed to establish the charges of tax fraud, suppression of sales and resultant tax evasion against the respondent by any cogent evidence. The impugned order is accordingly upheld and the appeal is rejected being without merit."

5.Perusal of Appellate Tribunal's order shows that incomplete record was produced by department before Appellate Tribunal, maintenance of which was denied by the respondent taxpayer. Appellate Tribunal concluded that department had failed to establish charges against respondent taxpayer. In our opinion no question of law is arising out of Appellate Tribunal's order. Therefore, we decline to exercise our jurisdiction.

Reference Application is decided against the applicant-department.

6.Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per section 47(5) of the Sales Tax Act, 1990.

KMZ/C-14/L Order accordingly.