Collector of Sates Tax etc vs M/s. Shahbaz & Co. etc
This matter arises from petitions filed against the judgment of the Lahore High Court. The petitions are barred by time, and the petitioner has filed an application for condonation of delay based on the fact that leave to appeal has been granted in a connected identical case. The Supreme Court noted that the question of condoning delay on such grounds is debatable in light of conflicting precedents. However, leaving the question of limitation open for consideration at a later stage, the Court granted leave to appeal to examine whether the respondent had passed on the sales tax burden to the recipients of the goods, whether payment of sales tax was required in the same manner as for a registered person precluding any refund, and whether the respondent did not pay the tax from its own pocket. The appeals were directed to be fixed along with the connected petition, and notice was issued on the time-barred application.
- Can delay in filing a petition be condoned solely on the ground that leave to appeal has been granted in a connected case involving an identical question?
- Whether a registered person can claim a refund of sales tax when the tax burden has been passed on to the recipients of the goods?
ORDER
1. IFTIKHAR MUHAMMAD CHAUDHRY, J--The above listed petitions have been filed against the judgment dated 27.10.2003 passed by Lahore High Court, Lahore.
2. The petitions are barred by time. An application has been moved seeking condonation of the delay. Learned counsel for the petitioner has pointed out that in a connected case i.e. Civil Petition No. 1068-L of 2002, wherein identical question was involved leave to appeal has already been granted by this Court on 12th April, 2002 therefore, he argued that following the dictum laid down in the case "Noor Sugar Mills Ltd. Vs. Market Committee" (PLD 1989 SC 449), delay may be condoned and treating the petition within time, leave to appeal may be granted in this case as well.
2. It may be noted that the question of condoning the delay on the ground so urged by the learned counsel is debatable in view of the latest judgment of this Court in the cases of "Muhammad Hussain and others vs. Muhammad and others" (2000 SCM R 367) and "Ali Muhammad through LRs.
3. Vs. Chief Settlement Commissioner" (2001 SCM R 1822), however leaving the question of limitation for consideration at a later stage, in view of the earlier judgment of this Court in Civil Petition No. 1068-L of 2002 wherein leave to appeal has been granted subject to limitation, leave to appeal in this case is also granted to examine the following question:
(a) that the respondent had passed on the same to the said persons who were the recipient of the goods;
(b) that the payment of the Sales Tax under the said section was to be made in the same manner as was required to be paid in case of supply to a registered person as such no refund could be claimed;
(c) . And that the respondent in fact passed on the said tax to the recipient and did not pay the same from its own pocket".
4. The appeals arising out of instant petitions are directed to be fixed alongwith the appeal arising out of the Civil Petition No. 1068-L of 2002. Notice of the application for condonation of the delay be also issued to the respondents and on filing their reply the question of limitation shall be taken up at the time of final hearing of the appeals. .