Messrs WAK LIMITED MULTAN ROAD, LAHORE vs COLLECTOR CENTRAL EXCISE

ORDER

EJAZ AFZAL KHAN, J.---This case was argued at some length. We having heard the learned ASCs for the parties on the last date of hearing observed as under:- "The first contention of the learned ASC for the petitioner was that since cylinders in the matrix of the case cannot be said to have been disposed of the provision of Section 3 of the Sales Tax Act, 1990 shall not be attracted; the second contention of the learned ASC was that if no order within time stipulated by the proviso to section 36(3) of the Sales Tax Act was passed, it could not be passed subsequently as the aforesaid provision is mandatory notwithstanding consequence of neglect to comply therewith is not mentioned. Relies on the case of Messrs Squibb Pakistan (Pvt.)

Ltd. and another v. Commissioner of Income Tax and another (2017 SCM R 1006) interpreting section 133 of the Income Tax Ordinance, a provision more or less in para materia with section 47 of the Sales Tax Act; the third contention of the learned ASC was that even if the question of law was not raised before the High Court in terms of section 47 of the Sales Tax Act it could well be raised before the High Court and even before this Court if it could be said to have arisen out of the judgment of the Tribunal. Relies on the cases of The Collector Sales Tax, Gujranwala and others v.

Messrs Super Asia Mohammad Din and Sons and others (2017 PTD 1756), Caltex Oil Pakistan Ltd. v.

Collector, Central Excise and Sales Tax and others (2006 SCM R 1519) and Gatron (Industries)

Limited v. Government of Pakistan and others (1999 SCM R 1072).

2. Learned ASC appearing on behalf of the respondents contended that the questions raised today before this Court are an outright surprise as these questions have never been raised in any of the fora below including the High Court.

3. Before granting leave to appeal in this case we would like to see the input of the respondents.

Relist on 20.03.2018."

2. Learned ASC appearing on behalf of the respondents contended, inter alia, that if a question did not emerge from the order of the appellate Tribunal it could not be raised before the High Court under section 47 of the Sales Tax Act and that if it did not emerge from the order of the Appellate Tribunal nor did the party raise it before the High Court under section 47 of the Sales Tax Act, it could not be raised for the first time in the Supreme Court. The learned ASC to support her contention placed reliance on the cases of Messrs Ahmed Karachi Halva Merchants and Ahmad Food Products v. The Commissioner of Income Tax, South Zone Karachi (1982 SCM R 489). She by elaborating her argument contended that if judgments rendered in the cases of Gatron (Industries) Limited v. Government of Pakistan and others (1999 SCM R 1072) and Messrs Squibb Pakistan Pvt. Ltd. and another v. Commissioner of Income Tax and another (2017 SCM R 1006) are considered in the light of section 47 of the Act and the earlier judgments of this Court, they appear to be per incurium and as such do not have any binding force.

3. We have considered the arguments of the learned ASCs for the parties addressed at the Bar. We are, prima facie, of the view that where section 47 of the Sales Tax Act itself is clear and the other provisions which are in pari materia with section 47 of the Sales Tax Act have already been interpreted in a good number of three-member bench judgments, another three-member bench of this Court could not have dissented from the earlier judgment without referring the matter to a lager bench. It has been settled as back at 1995 in the case of Multilines Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 43) that an earlier judgment of equal bench of the High Court on the same point is binding on the subsequent bench and if the subsequent bench tends to A take a different view, it has to request for the constitution of larger bench. This principle was also reiterated in the case of Ardeshir Cawasjee v. Karachi Building Control Authority (1999 SCM R 2883) by holding as under:- "Before concluding the above judgment we may refer to the conflict of views between the two judgments of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) and Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423), (also reported in 1995 SCMR 362) (supra) noticed in the leave grunting order which is to be resolved. The former case was decided on 31.3.1994 by a Bench comprising Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, if. (as then they were), whereas in the latter case judgment was rendered on 22.1.1995 by a Bench comprising Sajjad Ali Shah, C.J., Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ. (as then they were). It appears that while deciding the latter case notice of the above earlier judgment of Abdul Razak was not taken though, according to Mr. Naimur Rehman, the same was cited. It may be pointed out that a Bench of the same number of Judges of the same High Court, or of the Supreme Court, cannot deviate from the view of an earlier Bench as rightly has been held in the case of Multiline Associates v. Ardshir Cowasjee and others (PLD 1995 SC 423) (supra) in relation to the High Court."

Another question which has been raised by the learned ASC for the petitioner is that if an order is not passed within 45 days and then within 90 days despite extension in terms of the proviso to section 36(3) of the Sales Tax Act, it could not be passed subsequently. Learned ASC for the petitioner in support of his contention placed reliance on the case of The Collector of Sales Tax Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others (2017 PTD 1756).

We with due deference do not find ourselves in agreement with the interpretation placed on the said provision because the intent behind the said provision of the Act, as far as we are capable to understand it, is to ensure expeditious disposal of case and not an outright extinguishment of the tax liability. Such interpretation cannot be accepted when it also tends to open room for escape of tax liability through official and Institutional manipulations. Even otherwise when no consequence for neglect to comply with the said provision has been given in the statute, it cannot be construed as mandatory on any account and by any attribute.

4. We, having considered the questions raised above, grant leave to appeal and at the same time request the honourable Chief Justice to constitute a larger bench on the aforesaid questions. The appeals be prepared on the available record with the liberty to the parties to add thereto.

C.M.As. Nos,8601 and 8603 of 2017: These CMAs are allowed and operation of the impugned judgment is suspended provided the petitioners in these cases deposit 50% of the liability in this Court.

C.M.A. No,8606 of 2017: This CMA is allowed and operation of the impugned judgment is suspended.

As the liability outstanding against the petitioner, prima facie, could be confined to four months only, which according to the learned ASC for the petitioner has already been paid. In case it is not paid, the order suspending the operation of the impugned judgment would become operative on its payment.