COMMISSIONER AZAD JAMMU AND KASHMIR INLAND REVENUE DEPARTMENT, MIRPUR VS ZAKIR HUSSAIN
2019 P T D 376
[Supreme Court (AJ&K)]
Present: Ch. Muhammad Ibrahim Zia, C.J., Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ
COMMISSIONER AZAD JAMMU AND KASHMIR INLAND REVENUE DEPARTMENT, MIRPUR and others---Appellants
Versus
ZAKIR HUSSAIN and others---Respondents
Civil Appeals Nos.129 to 133, 135 to 142 of 2018, decided on 29/11/2018.
(On appeal from the judgment of the High Court dated 22.05.2018 in Appeals Nos.26 to 38 of 2001).
Sales Tax Act (VII of 1990)---
----S. 46---Azad Jammu And Kashmir Interim Constitution Act (VIII of 1974), S. 42---Appeal to Supreme Court---Pre-conditions for maintainability of appeal against any judgment, decree , final order or sentence of the High Court ---Appeal against order of Sales Tax Appellate Tribunal---Appellants impugned order of High Court whereby their appeals against order of Sales Tax Appellate Tribunal were dismissed---Question before the Supreme Court was whether the present appeals were maintainable---Held, that under S. 42(11) of the Azad Jammu and Kashmir Interim Constitution Act, 1974; pre-condition for filing direct appeal before Supreme Court of Azad Jammu and Kashmir was that the matter before the High Court should have been one which had arisen from a "court" and not a "tribunal" such as the Sales Tax Appellate Tribunal---In the present case, appellants had, before the High Court, challenged judgment/order of a "tribunal" which did not fall within definition of "court" hence present appeals were not maintainable---Appeals were dismissed, in circumstances.
Army Welfare Trust v. Collector of Sales Tax, Peshawar and others 2017 SCMR 9 rel.
Babar Ali Khan for Appellants (in All Appeals).
Haji Muhammad Afzal for Respondents (in All Appeals).
Date of hearing: 29th November, 2018.
JUDGMENT
CH. MUHAMMAD IBRAHIM ZIA, C.J.---All the titled direct appeals have been filed under Article 42(11) of the Azad Jammu and Kashmir Interim Constitution, against the impugned consolidated judgment of the High Court dated 22.05.2018, whereby the appeals filed by the respondents, herein, against the order passed by the Sales Tax Appellate Tribunal, Muzaffarabad dated 15.09.2001 have been disposed of.
2.The precise facts of the case as emerged from the pleadings are that the Sales Tax Registration Certificates were issued to the respondents (in all the appeals) after multiple repeated corrections along with changing numbers. It is stated that the same were issued without prescribed procedure and lawful authority. Thereafter, the respondents approached the concerned Sales Tax Departmental Authority for maintaining Sales Tax record, collection/deposit of Sales Tax, supplying Sales Tax Return Forms, procedure of its completion and schedule of filing of Sales Tax Returns etc. but the authority refused to do so. It is further alleged that the later on, the respondents submitted the Sales Tax Returns and deposited the Sales Tax amount along with the returns. It is further alleged that the respondents deposited the Sales Tax at the time of filing the Sale Tax returns. It is maintained that the imposition of penalty under section 33(CC) and additional Tax under section 34 of the Sales Tax Act, 1990 is without lawful authority. Against the imposition of additional tax and penalty the respondents filed appeals before the Appellate Tribunal on 08.03.2001. The Appellate Tribunal vide order dated 15.09.2001 partly accepted the appeals. Feeling aggrieved, the respondents preferred separate appeals before the High Court. The learned High Court dismissed all the appeals on the ground that the appeals before the Appellate Tribunal were not competent same like before the High Court references should have been filed instead of appeals, however, on the appeals filed by the respondents the matter was remanded by this Court to the High Court with the direction to decide the same on merits. After remand of the case, the learned High Court through impugned judgment dated 22.05.2018 accepted all the appeals while setting aside the order passed by the Sales Tax Appellate Tribunal, Muzaffarabad dated 14.09.2001 as well as the orders passed by the Deputy Collector Central Excise and Sales Tax dated 21.12.2000 and 24.12.2000, hence, the titled direct appeals.
3.Haji Muhammad Afzal, Advocate, the learned counsel for the respondents, among other objections, raised preliminary objection regarding the competency of the titled direct appeals. He submitted that according to the constitutional provisions, irrespective of the other requirements the basic requirement for filing the direct appeal before this Court is that the judgment varied or set-aside by the High Court should be passed by the Court and not a Tribunal. He submitted that the Sales Tax Appellate Tribunal is not a Court and its decision is not a decision of the Court, therefore, irrespective of the value of the subject-matter of the dispute, the direct appeal is not competent. In such like cases, the validity of the judgment can be challenged with leave of the Court and not through direct appeal. In support of his argument, he referred to the case reported as Army Welfare Trust v. Collector of Sales Tax, Peshawar and others [2017 SCMR 9].
4.Mr. Babar Ali Khan, Advocate, the learned counsel for the appellant in all the appeals while meeting the preliminary objection submitted that in all the cases the value of the subject-matter of the dispute is more than Rs.50,000/- and the impugned judgment is passed by the High Court, thus, Article 42(11) of the Azad Jammu and Kashmir Interim Constitution is fully attracted according to which when the High Court set-asides or modifies the judgment challenged before it, a direct appeal is competent. He further submitted that the Tribunal is also a Court as while hearing the appeal it performs judicial function. Therefore, the objection raised is not maintainable.
5.We have heard the learned counsel for the parties and thoroughly examined the relevant constitutional as well as statutory provisions of Sales Tax Act, 1990. According to Article 42(11) of the Azad Jammu and Kashmir Interim Constitution, against the judgment of the High Court a direct appeal is competent when the conditions incorporated in Article 42(11) are fulfilled. It will be useful to reproduce here the Article 42(11), which reads as follows:--
"42. Supreme Court of Azad Jammu and Kashmir:--
(11)An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir.
(a)
(b)
(c)
(d)If the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree, or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e)If the judgment, decree or final order involved directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside judgment, decree or final order of the Court immediately below; or
(f) "
Under clauses (d) and (e) of this sub-Article (11), among others, the pre-required condition for filing a direct appeal before this Court is that the High Court has varied or set-aside the judgment, decree or final order of the 'Court' immediately below. It is pre-condition for filing direct appeal that the matter before the High Court should have been arisen from the 'Court' and not the 'Tribunal' like the Sales Tax Appellate Tribunal. This mater came under consideration of the Apex Court of Pakistan in the case reported as Army Welfare Trust v. Collector of Sales Tax, Peshawar and others [2017 SCMR 9], referred to and relied upon by the learned counsel for the respondents. In that case under the provisions of Sales Tax Act, 1990 the judgment of the Sales Tax Appellate Tribunal was challenged by filing references before the High Court. Thereafter, the judgment of the High Court was challenged through petition for leave to appeal in Supreme Court wherein the objection was raised that keeping in view the value of the subject-matter of the dispute, the direct appeal is competent. The learned apex Court of Pakistan while attending this proposition held as follows:-
"5. The office objection mentions that, since the High Court had set aside "the order of the Court below" and as the value of the disputed amount was over fifty thousand rupees a direct appeal lay to the Supreme Court under Article 185(2)(d) of the Constitution. There is no dispute as to the amount, which in this case is seventy two million, one hundred fifty four thousand, two hundred and forty two rupees. The only question requiring consideration is whether, in terms of paragraph (d) of clause (2) of Article 185 of the Constitution, the Appellate Tribunal is a court? The Constitution does not specifically define court/s however Article 175(1) provides that, "There shall be a Supreme Court of Pakistan, a High Court for each Province and a High Court for the Islamabad Capital Territory and such other courts as may be established by law" [emphasis has been added].
6. Therefore, the question arises whether the Appellate Tribunal is a court established by law. The Act does not set up the Appellate Tribunal, but utilizes the "Customs, Excise and Sales Tax Appellate Tribunal" already set up under section 194 of the Customs Act, 1969 (see subsection (1) of section 2 of the Act). The Federal Government constitutes the Appellate Tribunal which comprises of judicial and technical members (subsections (1) and (2) respectively of section 194 of the Customs Act). The qualification of a judicial member is provided in subsection (2) and of a technical member in subsection (3) of section 194 of the Customs Act. The Federal Government also appoints the Chairman and determines the terms and conditions of appointment of the judicial and technical members (subsections (4) and (5) respectively of section 194 of the Customs Act). Neither through the Sales Tax Act, 1990 ("the Sales Tax Act" or "the Act") nor through the Customs Act a court was established, therefore, the Appellate Tribunal can not be categorized as a court.
7. The Appellate Tribunal can also not be equated with the tribunals envisaged in the Constitution which exercise judicial powers, such as the tribunals established under Article 212 and election tribunals under Article 225 of the Constitution. Ajmal Mian, CJ, heading a five member bench of this Court in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 Supreme Court 1445) held, "that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175
and 203 of the Constitution" (sub-paragraph (iii) of paragraph 11, page 1477). A more recent judgment of a three member bench of this Court authored by Iftikhar Muhammad Chaudhry. CJ, in the case of Riaz-ul-Haq v. Federation of Pakistan (PLD 2013 Supreme Court 501) held, that, since the Federal and Provincial Service Tribunals perform judicial functions and are set up pursuant to Article 212 of the Constitution they have to be made autonomous and independent of the Executive arm of the government/s in compliance with the mandate of the Constitution (clause (3) of Article 175) which provides for the separation of the Judiciary from the Executive. The Appellate Tribunal is not mentioned or provided for in the Constitution, therefore, it can not be categorized or be deemed to be a court in terms of paragraph (d) of clause (2) of Article 185 of the Constitution. When through the impugned judgment the High Court set aside the Appellate Tribunal's order it did not do so of a court immediately below. Consequently, the petitioner acted in accordance with the Constitution when it preferred a petition seeking leave to appeal the impugned judgment.
The above mentioned office objection is therefore overruled.
The legal and factual proposition involved in this case is identical to the judgment (supra), thus, the enunciated principle of law is fully attracted and it can safely be held that in all the appeals before the High Court the judgment challenged was not of 'Court' rather of 'Tribunal' which does not fall within the definition of 'Court, hence, in such situation direct appeals before this Court are not competent.
The objection raised by the learned counsel for the respondents prevails and consequently these appeals are declared to be incompetently filed. Consequently, all the titled appeals stand dismissed.
KMZ/1/SC/(AJ&K)Appeals dismissed.