THE COMMISSIONER OF SALES TAX, CENTRAL ZONE B', KARACHI vs Messrs

1. SALEEM AKHTAR, J: --These references will be disposed of by this judgment as common questions of facts and law are involved between the same parties. For the assessment years 1972-73 and 1973-74 the respondents claimed that as they are manufacturing Sodium Silicate Liquified which is a product of. Steam therefore it is entitled to exemption under Item 15 of Sales Tax Notification No.9 of 1951. The claim was refused by the Assessing Officer but in appeal to the Tribunal it was held that the respondents are entitled to the exemption claimed by them as they manufacture Sodium Silicate Liquified which is a product of steam works as against product of hammer works.

2. Dissatisfied with this order the Department filed an application under section 17 suggesting five questions for reference to the High Court. The Tribunal by its order dated 28-3-1981 dismissed the application as no question of law arose from the order of the Tribunal and further that the question regarding scope of exemption under item 15 of the Notification was considered and finally decided by the Supreme Court in C.S.T. v.' Akmal Engineering Company petition for Special Leave to Appeal No. K-61 of 1974 which had confirmed the views of the Sindh High Court reported in (1974) 30 Tax 8 in which it was held that item 15 related to (1) product of iron foundry, (2) product of steam and (3) product of hammer work whether operated by steam or electricity or manually. The Department has now filed application under section 17(4) for consideration of the same questions which were raised before the Tribunal for reference. The questions are as follows:--

(1) Whether, on the facts and in the circumstances of the case Sodium Silicate is a `product of steam ' or `steam works' within the meaning of item 15 of Sales-tax Notification No.9 of 1951?

(2) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in reopening the issue in spite of its earlier decisions categorically holding that sodium silicate was not a product of steam and hence not exempted under item 15 of Sales Tax Notification No.9 of 1951?

(3) Whether the exemption under item 15 of Sales-Tax Notification No.9 of 1951 extends to `products of steam', `products of steam works', `products of hammer works' or `products of work,' which qualify as steam-cum-hammer works?

(4) Whether sodium silicate in the solid form is liable to sales tax?

(5) Whether the respondent company is liable to pay sales tax on sodium silicate (in solid-form) produced by it?"

3. So far question No.1 is concerned it is purely a question of fact and the Tribunal after recording evidence and considering practical and theoretical demonstrations came to the conclusion that the respondents manufacture sodium silicate liquefied which is a product of steam. This question of fact has not been challenged and in these circumstances it cannot be reopened now. So far question No.2 is concerned the appellate Tribunal in spite of the fact that an order contrary to the finding was passed earlier made investigations as is obvious from the order of the Tribunal and after recording evidence came to the conclusion that the sodium silicate liquefied manufactured by the respondents were product of steam. The principle of res judicata does not apply to the proceedings before the Income Tax Authorities. The assessment is final and conclusive only in respect of the year it was made. Refer to I R v. Sneath 17 T C 149. However, such assessment may have evidentiary value. If any party provides fresh evidence and additional facts not available or considered earlier then the Assessing Authorities or the Tribunal if satisfied may take a different view while dealing with cases of subsequent assessment years.

4. In view of the findings of facts questions Nos. 3, 4 and 5 do not arise. We, therefore, dismiss the application.