2010 PTD 2425

ORDER

SHAHID JAMIL KHAN (JUDICIAL MEMBER).--- These cross-appeals are against order, dated 19-3-2009 passed by Collector (Appeals), Faisalabad. While deciding appeal against rejection of refund of appellant, the Collector (Appeals) partly accepted appeal and directed for issuance of refund whereas against one supplier appeal was rejected due to non-filing of invoice summary of the supplier required to be filed by the appellant.

2. Learned counsel for the appellant at the very outset of the proceeding has pointed out that order-in-original was time-barred. Explaining this objection he submits that the show-cause notice was issued on 15-11-2007 whereas the order-in-original was passed on 23-9-2008 which is beyond 180 days mandate given to the Sales Tax authorities under proviso to subsection (3) of section 36 of the Sales Tax Act, 1990. He contends that this objection was raised before the Collector (Appeals), which is found mentioned in paragraph 3 of the impugned order but adjudication on this point was not made by learned Collector (Appeals). The DR, in reply, has pointed out from the order-in-original that extension of passing the Order-in-Original was sought through a letter dated 20-6-2008 and the time was extended till 31-12-2008, whereas the Order-in-Original was passed on 23-9-2008, therefore, was within the permissible limit. When confronted with the language of the proviso to subsection (3) of section 36 of that the period limitation could not have been extended beyond 90 days from the end of the original 90 days as provided by the legislature, the DR replied that section 74 gives powers to Federal Board of Revenue to extend any periods specified in the statute. On a specific question whether letter dated 20-6-2008 seeking extension from the Board was under section 74, the DR's answer was in negative.

3. Heard learned representatives of the parties on the preliminary objection of limitation. It is admitted position that this objection was raised before the Collector (Appeals), but remained unattended by the learned Collector. It is also evident from the record that show-cause notice was issued on 15-11-2007 whereas the Order-in-Original was passed on 23-9-2008, which was beyond 180 days, ended on 14-5-2008. So far DR's reply on the extension is concerned, in my opinion the application for extension dated 20-6-2008 was filed under proviso to section 36(3) and not under section 74 and the extension given by Federal Board of Revenue was also under the same proviso. It is settled position by now that any order-in-original passed beyond the time prescribed by the statute is illegal. In support, judgment of Lahore High Court reported as 2008 PTD 578 in case of Messrs Hanif Straw Board Factory v. Additional Collector (Adjudication) may be referred. Sincethe Order-in-Original was passed beyond 180 days therefore, the same is held beyond jurisdiction and illegal.

4. Appeal of the Department is dismissed and that of the appellant registered person is accepted.

C.M.A./130/Tax (Trib.) Order accordingly.