2009 PTD 350

SYED KAZIM RAZA SHAMSI, MEMBER (JUDICIAL).--- This Sales Tax Appeal is directed against an order-in-original dated 7-3-2002 passed by Deputy Collector (Adjudication), Lahore whereby' liability to the tune of Rs.18477840 has been adjudged against the appellant.

2. Fact of the case briefly stated are that during the audit of the registered person it was detected that the claim of refund of input tax amounting to Rs.1847840 paid to local vendors on purchase of components for agricultural tractors was erroneously sanctioned as according to S.R.O. No.839(I) 98 dated 23-7-98 the exemption of input tax was prospective in nature. The unit was called upon to explain as to why the refunded sales tax should not be recovered. The notice was contested by the registered person on the ground that with the understanding with C.B.R. the prices of the agricultural tractors were reduced according to S.R.O. 544 dated 12-6-98 due to availability of stock therefore, the notification date 23-7-98 should be given retrospective effect. The contention so raised by the registered person could not win the favour of the adjudicating officer who ordered the recovery of erroneously refunded input tax vide an impugned order Hence this appeal.

3. We have considered the submissions made by the parties and examined the record. The first submission made by the counsel for the appellant was with regard to the reopening of the matter under section 454-A of the Sales Tax, 1990 as according to him after granting the refund only the Collector is competent to reopen the matter. The submission made has no substance for the reason that it was not a reopening of the matter rather the proceeding were initiated on the report of the DRRA which audited the record of the registered person. There is no bar in the Sales Tax Act for conducting the post audit. Similarly the plea of jurisdiction raised in this appeal was never raised by the appellant before the lower forum, therefore, cannot be allowed to be agitated for the first time in the appeal. By not raising the point of jurisdiction the appellant had waived his right to assert the same subsequently. The precise dispute between parties is the grant of exemption between the dates of 12-6-98 to 22-7-98 as the exemption was re-allowed with effect from 23-7-98. In this regard it would be suffice to say that the benefit of the S.R.O., dated 23-7-19988 cannot be extended retrospectively unless the S.R.O. itself provides so. The perusal of the S.R.O. dated 23-7-98 clearly shows that it has to take effect with effect from 23-7-98 thus ruled out its retrospectivity. The appellants have also failed to place on record any understanding with the C.B.R. for granting exemption between 12-6-98 to 22-7-98. This understanding cannot be inferred from the other circumstances as alleged by the appellant during the course of the arguments. The order passed by the learned adjudicating officer is in accordance with law, therefore, is maintained.

4. For the fore-going reasons, the appeal is dismissed parties be informed through registered post or by UMS.

5. File be consigned after completion.

C.M.A./144/Tax(Trib.) Appeal dismissed.