Messrs S.S. TANNERIES through Proprietor vs ASSISTANT COLLECTOR (AUDIT
This constitutional matter before the Lahore High Court addresses the initiation of recovery proceedings by the tax department following the statutory expiration of an interim injunction granted by the Customs, Sales Tax and Central Excise Appellate Tribunal under the Sales Tax Act, 1990. The core legal question concerns whether coercive recovery during the pendency of a statutory appeal renders the right of appeal infructuous and violates the fundamental right of access to justice. The Court held that an assessee is entitled to an independent adjudication of disputed tax liability, and that access to justice encompasses the right to have grievances determined by an independent forum. The Court disposed of the petition by directing the petitioner to apply for an expeditious final decision before the Appellate Tribunal, mandating the Tribunal to conclude the appeal within three months, and restraining the department from pursuing coercive recovery during that period.
- Whether coercive recovery of tax dues during the pendency of an appeal renders the statutory remedy infructuous?
- Does access to public justice include the right to adjudication by an independent tribunal?
- What is the effect of the statutory lapse of an interim injunction granted by the Appellate Tribunal under the Sales Tax Act, 1990?
- Section 46(4), Sales Tax Act 1990
- Section 48, Sales Tax Act 1990
ORDER
' UMAR ATA BANDIAL, J.---Learned counsel submits that the petitioner has filed an appeal before the respondent No,2 Customs, Sales Tax and Central Excise Appellate Tribunal ("Tribunal") under Sales Tax Act, 1990. Pursuant to the provisions of section 46(4) second proviso of the said Act, any interim injunction granted by the Tribunal expires on the lapse of six months. In the present case such interim order was granted on 3-10-2005 which expired on 3-4-2006. The respondent- Department has consequently commenced recovery proceedings through issuance of notice under section 48 of the Act on 22-4-2006.
2. Learned counsel for the petitioner contends that if the said recovery proceedings continue, the petitioner's statutory remedy of appeal shall become infructuous and redundant by recovery being effected prior to decision. He relies upon the judgment in Sunrise Bottling Company (Pvt.) Ltd. v.
Federation of Pakistan (2006 PTD 535) to support his contentions, the relevant portion of that judgment reads:-- "Learned counsel for the petitioner has referred to the judgment of this Court in the case of Z.N.
Exports (Pvt.) Ltd. v. Collector Sales Tax (2003 PTCL 1363). In that case it has been held by this Court that an assessee is entitled to adjudication in respect of his disputed tax liability by at least one independent forum outside the hierarchy of the respondent-Department. Admittedly in this case the impugned liability has been determined by the officers of the respondent-Department and remedy of the petitioner before the learned Appellate Tribunal provides the independent adjudication of his challenge to the impugned tax liability.
(2) The Honourable Supreme Court has laid down that access to justice is a fundamental right. In the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), it has been held that an essential feature of such right is the determination of any grievance or dispute by an independent Tribunal."
2. In view of the foregoing observations made in the precedent case and the relief granted therein it is directed that the petitioner shall appear before the learned Appellate Tribunal through an appropriate application seeking final adjudication of his pending appeal. The learned Appellate Tribunal shall endeavour to decide the petitioner's appeal within a period of three months from the date of receipt of certified copy of this order. During such period the respondent No,3 shall not press for recovery of the impugned dues through coercive process. Disposed of in the above terms.
Cited by 3 cases
- Messrs FAUJI OIL TERMINAL AND DISTRIBUTION COMPANY LTD. through General Manager vs PAKISTAN through Secretary, Revenue Division, Islamabad and 2 others PLJ 2012 Tax Cases (Kar.) 83, 2012 PTD 1762
- M/S. Fauji Oil Terminal & Distribution Company Ltd., Port Bin Qasim, Karachi 2013 P.C.T.L.R. 151
- FAUJI OIL TERMINAL AND DISTRIBUTION COMPANY LTD. through General PLJ 2012 Tax Cases (Kar.) 83