2019 P T D 884

[Lahore High Court]

Before Shahid Jamil Khan and Muzammil Akhtar Shabir, JJ

MUHAMMAD RAMZAN

Versus

COMMISSIONER INLAND REVENUE and others

S.T.R. No. 9296 of 2019, decided on 18/02/2019.

Sales Tax Act (VII of 1990)---

----Ss. 47 & 46---Reference to High Court---Scope---Jurisdiction of High Court under S.47 of the Sales Tax Act, 1990---Notice---Question of law---Scope---Order for remand by Appellate Tribunal---Scope---Order by Appellate Tribunal remanding a matter by observing that certain facts had not been determined by the forum below, which order did not determine anything finally and conclusively, would not generally give rise to any question of law to be determined by the High Court under S.47 of the Sales Tax Act, 1990---Such a reference to High Court would be premature, misconceived and not maintainable.

Commissioner Inland Revenue, Multan v. Messrs Bank Al-Habib Ltd. 2016 PTD 2548 and Commissioner of Income Tax and Wealth Tax, Sialkot Zone v. Messrs Maqbool Ahmed Gill 2007 PTD 1757 ref.

Rana Mushtaq Ahmed Toor for Applicant.

ORDER

In this Reference Application under Section 47 of the Sales Tax Act, 1990 ("Act of 1990"), following questions are proposed for our opinion:-

i.Whether in the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was justified to remand back the case just to fulfill the lacunas as well as to cure the proceedings as the value addition proceedings were initiated without invoking the relevant provision i.e. section 7A of the Sales Tax Act, 1990?

ii.Whether in the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was not authorized to annul the impugned assessment order passed under section 11(2) of the Sales Tax Act, 1990 as the petitioner did not commit any default with regard to filing of the returns, payments of tax, less than tax payable or got refund erroneously therefore the learned Commissioner Inland Revenue was not competent to pass the impugned order?

iii.Whether in the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was not authorized to annul the impugned assessment order as the value addition was made by the Commissioner Inland Revenue without constitution of valuation committee under section 2(46)(e) of the Sales Tax Act, 1990?"

2.The afore-referred questions are asserted to have arisen out of order dated 04.12.2018 passed by the Appellate Tribunal Inland Revenue, Lahore Bench, Lahore ("Appellate Tribunal"). Relevant part of the said order is reproduced hereunder:--

"11.On merits of the case, we find that the learned CIR has not adjudicated the case judiciously and without considering the actual facts of the case. Proper opportunity as envisaged under the law also seems to be not accorded to the appellant as queries raised in the show-cause notice was not properly responded/ adjudicated whereas during the course of proceedings the entire focus was on the pending proceedings before the Hon'ble FTO. It is the stance of the appellant before the CIR that they had not declared imported goods/scrap in the sales tax whereas it is the departmental contention that being importer of scrap, the taxpayer was bound to pay 17% value addition tax. If goods imported have been declared then the goods imported has already been subjected to 3% value addition at import stage. Complete procedure for value addition has been provided under section 2(46) of the Act. The status of the appellant is needs to be ascertained whether it is an importer of scrap or not during the tax periods under appeal? It is also the contention of the learned AR that further tax has been charged illegally when the sales were made to end consumers. It is also the contention of the AR that no closing stocks was sold out of books rather the Annexure-F of the sales tax returns was not filled in properly. Under such circumstances, we are of the opinion that matter needs to be looked into afresh at assessment stage. Order of the CIR is accordingly vacated and matter remanded back to the department for de novo decision in accordance with law after according proper opportunity of hearing to the registered person."

3.The perusal of afore-referred order reveals that the Appellate Tribunal has pointed out certain discrepancies in order dated 19.06.2018 passed by Commissioner Inland Revenue ("CIR") by observing that some important facts inter alia, whether the respondent was importer of scrap or not during the tax period under appeal, have not been decided. While passing the remand order, the Appellate Tribunal has not filially determined anything through a conclusive finding of fact and at this stage there is no assessment order against the petitioner on the record. Such a remand order does not generally give rise to any question of law to be determined by this court. Reliance is placed on Commissioner Inland Revenue, Multan v. Messrs Bank Al-Habib Ltd. (2016 PTD 2548) and Commissioner of Income Tax and Wealth Tax, Sialkot Zone v. Messrs Maqbool Ahmed Gill (2007 PTD 1757). Consequently the reference at this stage is premature, misconceived and not maintainable.

4.As regards the contention of the petitioner that the remand order will operate against the interest of the petitioner as the respondent department will fill in lacunas and cure defect in proceedings is concerned, suffice it to say that the Appellate Tribunal had reached conclusion that certain facts had not been determined by the CIR before passing the order set aside by the Tribunal and the matter was remanded for determination of the same. The said adjudication was required to be made for proper determination of the dispute between the assessee and the department therefore, the afore-referred contention of the petitioner is based merely on apprehension and cannot be made basis for setting aside the impugned remand order at this stage.

5.Since the proposed questions do not arise from order of Appellate Tribunal, therefore, we decline to exercise advisory jurisdiction. Reference Application is decided against the applicant.

6.Office shall send a copy of this order under seal of the Court to the learned Appellate Tribunal Inland Revenue as peg Section 47(5) of the Act, 1990.

KMZ/M-53//LOrder accordingly.