ABDUL GHANI VS FEDERATION OF PAKISTAN, 2019 PTD-LAHORE-HIGH-COURT-LAHORE 764 (2019)

2019 P T D 764

[Lahore High Court]

Before Shahid Jamil Khan and Asim Hafeez, JJ

ABDUL GHANI

Versus

FEDERATION OF PAKISTAN and others

I.C.A. No. 98311 of 2017 in Writ Petition No. 13139 of 2016, decided on 06/02/2019.

(a) Sales Tax Act (VII of 1990)---

----Ss. 74, 45-B & 46---Law Reforms Ordinance (XII of 1972) S. 3(2) & proviso---Sales tax---Intra-court appeal---Order passed under S. 74 of the Sales Tax Act, 1990 for condonation of time-limit---Maintainability of intra-court appeal against such order---Scope--- Question before the High Court was whether intra-court appeal against an order passed under S.74 of the Sales Tax Act, 1990 was maintainable---Held, in order to determine maintainability of intra-court appeal, it had to be examined whether any appeal, revision or reviewwasavailableundertheapplicablelawwhichwastheSalesTax Act, 1990---Perusal of the Sales Tax Act, 1990 revealedthatnosuchrightofappeal,revisionorreviewwasprovidedforin either S. 45-B or 46 of the Sales Tax Act ,1990 against order passed in exercise of powers under S. 74 of the Sales Tax Act, 1990---Intra-court appeal was therefore, in circumstances, maintainable.

Mst. WazirBegum v. Member Board of Revenue/Chief Settlement Commissioner and others 2000 SCMR 989 and Secretary to the Government of Punjab, Revenue Department and others v. Sajjad Ahmad and others 2012 SCMR 114 ref.

(b) Sales Tax Act (VII of 1990)---

----Ss. 74 & 11(5)---Assessment of sales tax--- Assessment of Tax and Recovery of Tax not levied or short levied or erroneously refunded---Condonation of time-limit after expiry of limitation period for making assessment for recovery of tax short-levied---Nature of statutory limitation provided for in S. 11(5) of the Sales Tax Act, 1990---Exercise of powers under S. 74 of the Sales Tax Act, 1990 to condone delay / extend time---Past and closed transaction---Scope--- Question before High Court was whether Department could by condoning delay under S. 74 of the Sales Tax Act, 1990 seek recovery of sales tax under S. 11 of the Sales Tax Act, 1990 after the assessment had already been concluded and limitation for seeking recovery had expired---Held, that time limit prescribed in S. 11(5) of the Sales Tax Act, 1990 was a statutory time limit and must be treated as jurisdictional as any act beyond such time-limit would take a matter out of jurisdiction of an authority or court and such time-limit could not be treated as procedural---Once time began to run from a specified date, the same could not be interrupted or extended unless the Legislature intervened and made an express provision to the contrary---Lapse of limitation curtailed a remedy whereby past and closed transaction could not be revived and in the present case, the limitation was not revived through Legislative interference but through an executive order by garb of powers under S. 74 of the Sales Tax Act, 1990- -- High Court observed that the Department through purported exercise of powers under S. 74 of the Sales Tax Act, 1990 could not resurrect a matter already dead---Powers under S. 74 Sales Tax Act, 1990 could be resorted to seeking extension of time or condonation of delay in cases already initiated but those which could not be concluded within specified period of time---Section 74 Sales Tax Act, 1990 could not be applied for seeking extension or condonation or delay to revive a past and closed transaction wherein time limit had already lapsed---Impugned notices and order-in-original were set aside---Intra-court appeal was allowed, accordingly.

The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others 2017 PTD 1756; Nagina Silk Mill, Lyallpur v. The Income Tax Officer, A-Ward Lyallpur and the Income-Tax Appellate Tribunal, Pakistan PLD 1963 SC 322; Additional Commissioner Inland Revenue, Audit Range, Zone-I and others v. Messrs Eden Builders Limited and others 2018 PTD 1474; Commissioner Inland Revenue FBR through Commissioner Inland Revenue v. Messrs ICI Pakistan 2017 PTD 1606; Commissioner Inland Revenue v. Messrs Lucky Plastic Industries (Pvt.) Ltd. and others 2017 PTD 2284; Messrs Paramount Spinning Mills Ltd. v. Customs, Sales Tax and Central Excise Appellate Tribunal and another 2012 SCMR 1860 and Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others PLD 2013 SC 364 ref.

Judicial Review of Public Actions by Justice Fazal Karim Volume-I page 601; Daniel Jay Schacht v. United States (44 U.S. Supreme Court Reports 26 L Ed 2d); Messrs Super Asia Mohammad Din and Sons's case 2017 PTD 1756; Additional Commissioner Inland Revenue, Audit Range, Zone-I andothers v. Messrs Eden Builders Limites and others 2018 SCMR 991 = 2018 PTD 1474 and Waris Mean v. The State PLD 1957 SC 157rel.

Commissioner Inland Revenue v. Messrs Lucky Plastic Industries (Pvt.) Ltd. and others 2017 PTD 2284 distinguished.

(c) Words and phrases---

----"Case", meaning of---Case can be defined as a civil or criminal proceeding, action, suit or controversy at law or in equity. [p. 775] G

Black's Law Dictionary Ninth Edition rel.

(d) Limitation---

----Principles of---Past and closed transactions---Once time began to run from a specified date, the same could not be interrupted or extended unless the Legislature intervened and make an express provision to the contrary---Lapse of limitation curtailed a remedy whereby past and closed transaction could not be revived.

Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279; Judicial Review of Public Actions by Justice Fazal Karim Volume-I page 601; Daniel Jay Schacht v. United States" (44 U.S. Supreme Court Reports 26 L Ed 2d); Messrs Super Asia Mohammad Din and Sons's case 2017 PTD 1756 and Additional Commissioner Inland Revenue, Audit Range, Zone-I andothers v. Messrs Eden Builders Limites and others 2018 SCMR 991 = 2018 PTD 1474 rel.

Muhammad Naeem Shah for Appellant.

Ch. Liaqat Ali and Foziya Bukhsh for Respondents.

Date of hearing: 5th November, 2018.

JUDGMENT

ASIM HAFEEZ, J.---This Intra-Court Appeal ("appeal") arises out of the order dated 12.10.2017, whereby learned single Judge-in Chambers dismissed the Writ Petition filed by the appellant.

2.Briefly the facts, necessary for the adjudication of the lis at hand are that a show-cause notice ("notice") dated 29.02.2016, under sub-section (2) and subsection (3) of section 11 of the Act - as amended through Finance Act, 2012 was issued to the appellant, alleging tax fraud and massive Sales Tax evasion during the tax period from July, 2001 to June 2005. Notice disclosed that Respondent No.2, i.e. Federal Board of Revenue, had condoned/extended the time limit under section 74 of the Act vide letter dated 25.01.2016, which was, inter alia, impugned through writ petition. During the pendency of said petition, the Respondent No. 6 passed order-in-original dated 25.04.2016, determining tax liability, whereafter the petition was dismissed vide order dated 12.10.2017, on the ground that an alternate remedy by way of appeal was available under the Act against the Order-in-Original. Hence, this appeal.

4.Learned counsel for the appellant submits that condonation/ extension of time limit under section 74 of Sales Tax Act, 1990 in purported exercise of authority by respondent No.2 was illegal and without jurisdiction as same had no authority to resurrect matter otherwise time barred. And all subsequent actions are of no legal effect. Learned counsel, added, that writ petition was dismissed without appreciating that no remedy was available in terms of section 45-B or 46 of the Act, against the order / decision of the FBR, purportedly, in the garb of section 74, ibid. Reliance was placed on judgments reported as "The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others" (2017 PTD 1756), "Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd." (2009 SCMR 1279), "Nagina Silk Mill, Lyallpur v. The Income Tax Officer, A-Ward Lyallpur and the Income-Tax Appellate Tribunal, Pakistan" (PLD 1963 SC 322), "Additional Commissioner Inland Revenue, Audit Range, Zone-I and others v. Messrs Eden Builders Limited and others" (2018 PTD 1474), "Commissioner Inland Revenue FBR through Commissioner Inland Revenue v. Messrs ICI Pakistan" (2017 PTD 1606) and "Commissioner Inland Revenue v. Messrs Lucky Plastic Industries (Pvt.) Ltd. and others" (2017 PTD 2284).

5.The learned counsel, appearing for the department/respondent, at the outset, objected to the maintainability of this appeal in view of proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 ("Ordinance of 1972"), alleging that right of appeal was provided under the Act. Learned counsel argue that the appellant had committed "tax fraud" and was responsible for massive sales tax evasion, by illegally engaging into manufacturing and business of sale of collars; hence, there is no question of limitation. Reliance was placed on following judgments reported as "Messrs Paramount Spinning Mills Ltd. v. Customs, Sales Tax and Central Excise Appellate Tribunal and another",(2012 SCMR 1860) and "Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others" (PLD 2013 SC 364).

6.Arguments heard. Available record perused.

7.We tend to deal with the objection of maintainability first. In the facts and circumstances of the case, learned counsel's reliance on proviso tosubsection (2) of section 3 of the Ordinance of 1972, ibid,appearsto be misplaced. The simple test, to determine the maintainability of instant appeal, is to find that whether any appeal, revision or review is available under the law applicable - Sales Tax Act, 1990---against the original order which in this case was the decision by respondent No.2 vide letter dated 25.01.2016. In this behalf a reference is made to the relief substantially claimed, besides claiming ancillary / consequential reliefs, by the appellant through the petition, which is reproduced hereunder;

"Under the circumstances it is prayed that Order dated 25/01/2016 passed by respondent No.3 may very kindly be declared without lawful authority and of no legal effect."

8.Whether right of appeal is available under the Act against condonation/extension of time-limit allowed vide letter dated 25.01.2016 under section 74 of the Act, if so, then issue of maintainability is worth attending. Upon perusal of the Act, it transpired that no appeal is provided, either under section 45-B or section 46 of the Act against the letter dated 25.01.2016 - 'being an original order, -- impugned in the writ petition. For reference subsection (2) of section 3 of the Ordinance of 1972, sections 45-B and 46 of the Act are reproduced hereunder;

"2. An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under [clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan] not being an Order made under sub-paragraph (i) of paragraph (b) of that clause:

Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article [199] arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order". (emphasis supplied)

Section 45-B of the Act:

"45-B. Appeals.---[(1) Any person, other than the Sales Tax Department, aggrieved by any decision or order passed under section 10, 11, 25, 36, or 66, by an officer of Inland Revenue may, within thirty days of the date of receipt of such decision or order, prefer an appeal to the Commissioner Inland Revenue (Appeals):

Provided that an appeal preferred after the expiry of thirty days may be admitted by the Commissioner Inland Revenue (Appeals) if he is satisfied that the appellant has sufficient cause for not preferring the/appeal within the specified period:

Provided further that the appeal shall be accompanied by a fee of one thousand rupees to be paid in such manner as the Board may prescribe".

Section 46 of the Act:

"46. Appeals to Appellate Tribunal.-[(1) Any person including an officer of [Inland Revenue] not below the rank of an Additional[Commissioner],aggrievedbyanyorderpassedby-

(a) the [Commissioner Inland Revenue] (Appeals) under section 45B,

(b) the [Commissioner Inland Revenue] through adjudication or under any of the provisions of this Act or rules made thereunder,

(c) the Board under section 45A,

may, within sixty days of the receipt of such decision or order, prefer appeal to the Appellate Tribunal.]

9.In the absence of any appeal provided, this appeal is maintainable. We are fortified in our opinion in view of the judgment by the August Supreme Court of Pakistan reported as "Mst. WazirBegum v. Member Board of Revenue/Chief Settlement Commissioner and others" (2000 SCMR 989) and "Secretary to the Government of Punjab, Revenue Department and others v. Sajjad Ahmad and others" (2012 SCMR 114) relevant portion thereof is reproduced hereunder:--

"6. Sheikh Zamir Hussain, learned Senior Advocate Supreme Court for the respondents when confronted with the question of maintainability of the I.C.A., candidly stated that the remedy of appeal in terms of section 54 of the Act of 1894 was not available to the parties, therefore, dismissal of I.C.A. on this ground qua reference to section 3(2) of the Law Reforms Ordinance 1972, was due to erroneous view formed by the learned Division Bench".

10.The issue is that whether the powers conferred in terms of section 74 of the Act can be stretched to resurrect time-limit - for filling any application or doing anything or act - already expired. The controversy hinges on the scope of section 74 of the Act. It is pertinent to mention that notices, in this case, were issued under subsections (2) and (3) of section 11 of the Act - substituted by Finance Act, 2012 with respect to tax period from July 2001 to June 2005. In terms of sub-section (5) of section 11 of the Act, no order can be passed by office of Inland Revenue (OIR) unless a show-cause notice is given within five years of relevant date - which in terms of explanation under subsection (7) of section 11 of the Act means the time of payment of tax or charge as provided under section 6 of the Act. And relevant date, for the purposes of determining/fixing liability for the tax period from July 2001 to June 2005, would be June 2005 in terms of section 11(5), which means that a notice under section 11 of the Act can be issued by or before June 2010, only then subsections (2) and (3) of section 11 of Act can be invoked.

In this case notice was issued on 29.02.2016, ater time-limit was condoned/extended by respondent No.2 under section 74, ibid, through letter dated 25.01.2016. The controversy boils down to one critical question, that whether respondent No.2 can condone time-limit for the purposes of issuance notice under subsections (2) and (3) of section 11 ibid, - allegedly claiming powers under section 74 of the Act. It is expedient to reproduce it and which reads as;

"74. Condonation of time-limit:---Where any time or period has been specified under any of the provisions of the Act or rules made thereunder within which any application is to be made or any act or thing is to be done, the [Board] may, in any case or class of cases, permit such application to be made or such act or thing to be done within such time or period as it may consider appropriate".

11.The controversy before us does not extend to the determination of validity/legality of notice dated 29.02.2016 but whether time-limit can be condoned/extended for doing a thing or act after the time limit otherwise provided had already expired. The time-limit prescribed in terms of subsection (5) of section 11 or for that matter under sub-sections (1) and (2) of erstwhile section 36 of the Act - omitted through Finance Act, 2012 - are statutory time limits and must be treated as jurisdictional, as any act beyond time-limit specified, would take said matter out of jurisdiction of an authority or Court, as the case may be. The time limit provided in above-noted sections has to be treated as jurisdictional and not procedural. A paragraph is quoted from a book "Judicial Review of Public Actions" by Justice Fazal Karim, Volume-I page 601, which reads as under:

"For,byignoringthelawoflimitation,itwillitselfbegoing outside the jurisdiction conferred upon it. The correct view, it is submitted with great respect, is the one expressed by the US Supreme Court in Schacht v. US namely that statutory time-limits must be treated as jurisdictional in the sense that in out-of-time matters the court is without jurisdiction to hear them".

Relevant portion of judgment reported as "Daniel Jay Schacht v. United States" (44 U.S. Supreme Court Reports 26 L Ed 2d) is reproduced hereunder:

"[5] The Government's brief and argument seriously contend that this Court is without jurisdiction to consider and decide the merits of this case on the ground that the petition for certiorari was not timely filed under Rule 22(2) of the rules of this Court. This Rule provides that a petition for certiorari to review a court of appeals' judgment in a criminal case "shall be deemed in time when . . . filed with the clerk within thirty days after the entry of such judgment." We cannot accept the [398 US 64]

View that this time requirement is jurisdictional and cannot be waived by the Court. Rule 22(2) contains no language that calls for so harsh an interpretation, and it must be remembered that this rule was not enacted by Congress but was promulgated by this Court under authority of Congress to prescribe rules concerning the time limitations for taking appeals and applying for certiorari in criminal cases. See 18 USC 3772; rule 37, Fed Rules Crim Proc. The procedural rules dopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion when the ends of justice so required".

12.Interpretation of section 74 of the Act, came under discussion in a recent Judgment by the August Supreme Court of Pakistan reported as Messrs Super Asia Mohammad Din and Sons (2017 PTD 1756), relevant portion whereof is reproduced hereunder;

"12. As regards the reliance placed on section 74 of the Act, it provides that where a time frame has been stipulated in the Act within which an act or thing is to be done, the Board, or the Commissioner notified by the Board, are empowered to permit such act or thing to be done within such time period as they may consider appropriate. Passing an order under section 36(3) of the Act is certainly an act or thing to be done under the Act. Therefore, the Board (which expression shall hereinafter include Commissioner notified by the Board) has the power under section 74 of the Act to permit the passing of an order under the aforesaid section within such time period as it may consider appropriate. While applying the principles of harmonious construction, we find that the proviso is restricted in its application to the section it is attached to, whereas section 74 of the Act is of general applicability and shall apply to all the provisions of the Act and the rules framed thereunder. This provision will undoubtedly have an overriding effect over the first proviso to section 36(3) supra and can be held to be an exception thereto. The purpose of section 74 supra is to give a separate overriding power to the Board to permit any act or thing to be done under the statute within such time period as it may deem appropriate, which undoubtedly is independent of any other provision of the Act which provides a time frame. To restrict the time period that can be granted under section 74 supra to the maximum period available under the first proviso to section 36(3) of the Act would render the former absolutely redundant and superfluous, which cannot be countenanced under the settled rules of interpretation which do not allow such redundancy to be attributed to the legislative intent. Therefore, where the Board has permitted the passing of an order under the proviso within a time frame different from that contained therein, this new time frame shall be deemed to be the relevant one. However, this does not mean that in exercise of its power under section 74 of the Act, the Board will haveunfettered and unbridled authority to extend time when,and for however long, it feels it expedient to do so. Rather time would only be extended in certain cases, after application of mind and that too for a reasonable amount of time. For the purposes of settling the reasonable time, we hold that after the expiry of two time periods envisaged by the first proviso to section 36(3) of the Act, i.e. forty-five days [within which the order under section 36 of the Act is to be passed] and a further ninety days [extended period under the first proviso to section 36(3) ibid], the Board should have six months within which it may grant extension of time under section 74 supra which (extension) can also not exceed six months. If the reasonable time mentioned above also lapses, then the rule of past and closed transaction shall apply because it is inconceivable in law that:- (a) the Board would have infinite and unlimited time within which it can grant extensions under section 74 supra; and (b) the Board can grant infinite and unlimited extension under section 74 ibid; to obliterate the vested rights that stand created in favour of the taxpayer on account of such lapse of time".

13.The August Supreme Court of Pakistan had interpreted section 74 of the Act in the context of first proviso to section 36(3) of the Act in the case of Messrs Super Asia Mohammad Din and Sons (supra) and reinforced the rule of past and closed transaction. Section 74 was interpreted in said context. In the instant matter, no case or notice was issued or pending against the appellant, when condonation/extension of time limit was allowed under section 11(5) of the Act. The proceedings in this case commenced, after the lapse of time limit prescribed, merely on the basis of condonation / extension of time limit by respondent No.2 subject to legislative interference, the limitation once commenced cannot be curtailed and likewise once limitation is expired no lease of life can be infused to resurrect said time barred matter. A reference is made to a celebrated principle of limitation, reiterated in a judgment by the August Supreme Court of Pakistan, reported as "Nagina Silk Mill, Lyallpur v. The Income Tax Officer and The Income Tax Appellate Tribunal, Pakistan" (PLD 1963 SC 322), relevant portion from said judgment at page 332 is reproduced hereunder:

"It is a well-recognized principle of the law of limitation that once time begins to run from a specified date it cannot be interrupted or extended unless the Legislature intervenes and makes express provision to the contrary".

17(sic). Guidance can be sought from another recent Judgment by the August Supreme Court of Pakistan, reported as "Additional Commissioner Inland Revenue, Audit Range, Zone-I andothers v. Messrs Eden Builders Limites and others" (2018 SCMR 991 = 2018 PTD 1474) - relating to the issue of amendment brought in section 122(2) of the Income Tax Ordinance, 2001 by way of Finance Act, 2009 and its impact on the period of limitation - the Apex Court discussed the significance of the law of limitation in the context of taxing statutes, relevant portion whereof is reproduced hereunder;

"6. From the ratio of the above judgment it can be seen that the law of limitation in so far as it regulates the period in which one party can avail a remedy against another is not to be lightly disturbed as the certainty created by limitation is necessary for the success of trade and business, the more so when that limitation governs tax matters. In the matters in hand, the respondents, at the time of filing their tax returns were aware that these tax returns may be amended in terms of section 122(5A) of the I.T.O., 2001 at any time up to five years from the date of filing of the tax return itself. Thus, their planning in terms of their possible amended and/or revised tax liability would extend for a period of five years from the date of filing of their respective tax returns. After the said five years were up, they could be sanguine that their tax return was now final and they could no longer be burdened with an additional demand. This means that a right related to the law of limitation came to vest in the respondents on the date of filing of their respective returns in terms of the provisions of the original section 122(2). However, the effect of the amendment brought about through the Finance Act, 2009 was to change that original date of commencement of limitation. Instead of limitation commencing on the date of filing of the tax return, 30.12.2008 in the case of appellant in C.A. 2148/2016, limitation was now to commence on the last day of the financial year in which the Commissioner has issued or treated to have issued the assessment order to the taxpayer, which in this particular appeal ibid would have been 1.7.2009. This means that the goal posts themselves were changed by the amendment. It was not that the period of limitation was enhanced to for example 6 years. On the contrary, post amendment too, the limitation period remained five years. Instead, the amended to section 122(2) of the I.T.O., 2001 changed the commencement date for when limitation would begin to run. And this was not permissible as certain rights had already come to vest in the respondents on the date on which they had filed their tax returns under the original section 122(2) ibid. We are fortified in our view by the ratio of the seminal judgment in Nagina Silk Mills' case (supra) wherein has been held that:

"The limitation in this case under subsection (2) of section 34 of the Act had started running on the 1st of April 1956, and that fixed the terminal date of the period of four years as the 31st of March 1960, with certainty under the law as it then stood. It is a well-recognized principle of the law of limitation that once time begins to run from a specified date it cannot be interrupted or extended unless the Legislature intervenes and makes express provision to the contrary.

The Courts must lean against giving a statute retrospective operation on the presumption that the Legislature does not intend what is unjust. It is chiefly where the enactment would prejudicially affect vested rights, or the legality of past transactions, or impair existing contracts, that the rule in question prevails.

the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing statute". [emphasis supplied]

7. Because the terminal date of limitation is not changing through the amendment brought about through the Finance Act, 2009 and because the period of limitation is not being extended per se therefore the authorities cited by the learned counsel for the appellants are of no avail and are distinguishable. In this view of the matter, hold that the various respondents, who filed their tax returns before the section 122(2) of the I.T.O., 2001 was amended through the Finance Act, 2009 will be governed by section 122(2) ibid as it stood before the amendment and the amendment brought about in the said section through Finance Act, 2009 dated 30.06.2009 will not be attracted to their cases".

18.We have also examined the judgment reported as "Commissioner Inland Revenue v. Messrs Lucky Plastic Industries (Pvt.) Ltd. and others" (2017 PTD 2284), which also relates to the question of grant of extension of limitation in terms of erstwhile section 36(3) of the Act, wherein the proceedings were commenced but could not be concluded within time limit allowed to enable the Adjudicating Officer to decide the matter though original limitation therein has expired. The case at hand is distinguishable, as no proceedings/case was pending and the matter was started on the basis of condonation/extension granted by Board under section 74 of the Act.

19.From the ratio of the Judgments it is clear that lapse / expiry of limitation curtails a remedy, whereby a past and closed transaction cannot be revived. In this case limitation lapsed was not revived through legislative interference but through an order of the executive in the garb of powers under section 74 of the Act. Respondent No.2 through purported exercise of authority under section 74 of the Act, cannot resurrect a matter, already dead.

20.Upon bare perusal of section 74 of the Act and more attentively the expressions "in any case" or "class of cases" - wherein reference to "person" or "class of persons" is conspicuously missing - affirm that powers under section 74 can be resorted to for seeking condonation/ extension of time limit in cases, already initiated but could not be concluded within the specified time period. The expression "case" as defined in Black's Law Dictionary Ninth Edition means

1. A civil or criminal proceeding, action, suit, or controversy at law or in equity < the parties settled the case

21.Therefore, section 74 of the Act cannot be applied or approached for seeking extension or condonation to revive a past and closed transaction / matter, wherein time-limit had already lapsed. It is evident from letter dated 25.01.2016 that condonation / extension allowed to initiate proceedings under section 11(5) of the Act, which construction of section 74 if allowed to prevail the statutory time-limit under section 11(5), ibid, - to be ascertained from the relevant date in terms of section 11(7) of the Act---would make the statutory limitation redundant and superfluous. It cannot be the intent of the legislature to make section 11(5) of the Act redundant by conferring power on the Board, in terms of section 74, to bulldoze statutory limitations.

22.The question of application of time limit under taxing statutes has to be constructed strictly as lapse thereof creates a right in favour of taxpayer, which unless disturbed or taken away by legislature, cannot be placed at the discretion of respondent No.2. Even otherwise, conferment of such unstructured and arbitrary discretion unto respondent, to pick and choose person(s) at its will/discretion would offend the principles laid down in case reported as Waris Mean v. The State (PLD 1957 SC 157).

23.In these circumstances, we declare that letter dated 25.01.2016 is illegal, without jurisdiction and of no legal effect, including all the actions taken or proceedings initiated on the basis thereof.

24.Consequently, this appeal is accepted and order dated 12.10.2017 is set-aside.

KMZ/A-12/LAppeal accepted.