ADDITIONAL COLLECTOR SALES TAX, LAHORE vs Messrs RUPALI POLYESTER LTD., LAHORE
This matter concerns an appeal filed by the Additional Collector Sales Tax against an order of the Customs, Excise and Sales Tax Appellate Tribunal, which had declined the imposition of additional tax, surcharge, and penalty against the respondent, Messrs Rupali Polyester Ltd. The core legal question was whether the non-payment of sales tax by the respondent was deliberate, wilful, or mala fide, thereby justifying the imposition of penalties. The Lahore High Court, relying on the precedent set in 'Additional Collector Sales Tax v. Messrs Nestle Milk Pak Ltd.', held that the imposition of penalty and additional tax is unjustified where the non-payment of sales tax is neither wilful nor a mala fide evasion of duty. The Court further determined that the finding of the Tribunal regarding the absence of evidence for wilful evasion constituted a question of fact rather than a question of law. Consequently, the Court ruled that it could not entertain the appeal under Section 47 of the Sales Tax Act, 1990, as it lacked jurisdiction over factual findings, and dismissed the appeal.
- Is the determination of whether non-payment of sales tax was wilful and mala fide a question of fact or a question of law?
- Can the High Court entertain an appeal under Section 47 of the Sales Tax Act 1990 regarding a finding of fact?
- Is the imposition of penalty and additional tax justified where the non-payment of sales tax is found to be neither wilful nor mala fide?
- Section 47, Sales Tax Act 1990
ORDER
This order will dispose of C.A. No. 14-S of 1999 and C.A. 15-S of 1999 in which common questions of law and fact are involved.
2. The main issue raised in the instant appeal relates to the chargeability of additional tax, surcharge and penalty. The claim of the appellant qua additional tax, surcharge and penalty was declined by the Customs, Excise and Sales Tax Appellate Tribunal, Lahore Bench, by order , dated 14-1-1999. Learned Tribunal dismissed the appeal on the ground that sales tax department has failed to establish that non-payment of sales tax was deliberate and wilful.
3. Learned Division Bench of this Court in the case of "Additional Collector Sales Tax v. Messrs Nestle Milk Pak Ltd." 2005 PTD 1850 has declared the imposition of penalty and additional tax etc. Unjustified in law, with regard to non-payment of sales tax, within the tax period which was neither wilful nor mala fide evasion of duty.
4. It has been held by the learned Tribunal in the impugned decision that no tangible evidence is available with the Department whereby it could be established that the appellants have indulged in the act of evasion. The question whether non-payment of sales tax, was wilful and mala fide is a question of fact and not of law, therefore, we are not inclined to entertain the application under section 47 of the Sales Tax Act, on the question of fact.
5. The instant appeal is not maintainable and is dismissed as such. .
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- COLLECTOR CUSTOMS, LAHORE vs REHMAN BEVERAGES, LAHORE , . 2006 PTD 1599
- Collector Of Customs Lahore vs Rehman Beverages Lahore PTCL 2006 CL. 611