ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Spl. STRA No.291 of 2017
Orient Electronics (Pvt.) Ltd.
Versus
Government of Sindh Pakistan & others
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Date |
Order with signature of Judge |
Present: Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Zulfiqar Ahmad Khan
Dated: 23.05.2019
Mr. Nadeem Yaseen for applicant.
O R D E R
Instant Reference Application was earlier dismissed for non-prosecution vide order dated 07.02.2019 as the applicant and his counsel did not pursue the same, whereafter, it was restored to its original position pursuant to application filed by the applicant vide order dated 17.04.2019.
Initially the applicant proposed eight questions, however, requested for time to reframe the questions and filed a statement dated 15.05.2019 along with revised questions, which read as follows:-
“1. Whether on the circumstances and facts of the case, the learned Appellate Tribunal Sindh Revenue Board was justified to hold that applicant is a resident under Sindh Sales Tax Act, 2011 instead of Punjab Sales Tax on Services Act, 2012?
2. Whether on the circumstances and facts of the case, the learned Appellate Tribunal Sindh Revenue Board was justified to uphold the application of Rule 2(e) of Sindh Sales Tax Special Procedure (Withholding) Rules 2011 instead Rule 2(f)?
3. Whether on the circumstances and facts of the case Applicant is liable to pay the impugned demand to Sindh Revenue Board after payment of said demand to Punjab Revenue Authority?
4. Whether the learned Appellate Tribunal Sindh Revenue Board was justified to hold that Sindh Revenue Board had the jurisdiction to adjudicate the issue?”
2. After having read out the above proposed questions, learned counsel for applicant has prayed that Order No.131/2015 dated 17.03.2017 passed by Appellate Tribunal Sindh Revenue Board may be set aside and the questions proposed may be answered in favour of applicant against the respondents.
3. From perusal of record it appears that instant Reference Application has been filed by the applicant against an order passed by Appellate Tribunal Sindh Revenue Board on Rectification Application No.1 of 2017 in Appeal No.AT-131 of 2015 whereby, the Rectification Application filed by the applicant against order in Appeal No.AT-131/2015 dated 07.12.2016 has been dismissed, while placing reliance on the judgments of Hon’ble Supreme Court of Pakistan reported as 2007 PTD 967 in the case of CIT v. Abdul Ghani.
It further transpired that the above questions proposed through instant Reference Application do not arise from the order of Rectification, and the same were subject matter of main order in appeal dated 07.12.2016 passed by the Appellate Tribunal in Appeal No.AT-131/2015. The applicant instead of filing Reference Application against the Order-in-Appeal in terms of Section 63 of Sindh Sales Tax On Services Act, 2011, chose to file Rectification Application, which has been dismissed by the Appellate Tribunal Sindh Revenue Board vide order dated 17.03.2017, and thereafter, the applicant has filed instant Reference Application on 22.04.2017, however, with the request to set aside Order-in-Appeal No.AT-131 of 2015 dated 17.12.2016.
Through instant Reference Application, the applicant requires this Court to answer the proposed questions in favour of applicant, which questions admittedly, do not arise from the order of Rectification passed in the instant case, and were subject matter of appeal before the Appellate Tribunal in Appeal No.AT-131/2015. If order of Rectification in the instant matter is to be ignored and instant Reference is considered to have been filed against the Order of the Appellate Tribunal in Appeal No.AT-131/2015 dated 07.12.2016 then instant Reference Application, on the face of record, is time barred. Whereas, no explanation has been given nor any condonation of delay has been sought by applicant.
This Court in the case of Commissioner of Income-Tax v. Ateed Riaz reported in 2002 PTD 570 has been pleased to hold that Reference lies against order passed by the Appellate Tribunal in the main appeal, whereas no Reference can be filed against an order of Rectification, if questions proposed do not arise from such order. It will be advantageous to refer to relevant finding of this Court in the case of Commissioner of Income-Tax (Supra), which reads as follows:-
“…….We are, of the considered opinion, that merely because a reference application lies against an order under section 156 of the Income Tax Ordinance, nobody can be allowed to circumvent the law relating to the period of limitation provided in subsection (1) of section 136 and in subsection (2) of section 136 of they Income Tax Ordinance, 1979. The effect of treating the order under section 156 made by the Tribunal under section 135, is that, for the purpose of making reference to High Court, it shall be treated as an order under section 135 of the Income Tax Ordinance. Nonetheless, a party cannot be allowed to seek a reference to the High Court in respect of question of law arising out of the original order under section 135 of the Income Tax Ordinance, if no such application was submitted within a period of ninety days of the date upon which he is served with the notice of an order under section 135 of the Income Tax Ordinance, as provided under section 136(1) of the Income Tax Ordinance, in the garb of an order under section 156 of the Income Tax Ordinance, 1979. We would like to clarify that orders under section 135 and section 156 made by the I.T.A.T. are subject to reference to the High Court, but the period of limitation for making reference from the each order would be the same as provided in subsection (1) of section 136 of the Income Tax Ordinance. If any reference application is sought to be made in respect of an order under section 156 of the Income Tax Ordinance, then the reference shall lie, if the question of law arise out of the order under section' 156 only and not otherwise. If any question of law arises out of order under section 135 of the Income Tax Ordinance, then it cannot be referred to the High Court with reference to the order under section 156, if the period of limitation has expired. In the present case, we find, that the original order by the Tribunal under section 135 of the Income Tax Ordinance, was made on 21-9-2000 and no reference application was filed in respect of any question of law arising out of the said order. The applicant instead, chose to filed rectification application which was rejected on 26-1-2001. Thus the only question which could arise out of the order of Tribunal under section 156 was whether Income Tax Appellate Tribunal was justified in rejecting the rectification application. This question has not been proposed in the present reference application and instead the question has been proposed which arises out of the order of Tribunal, dated 21-9-2000, which has become barred by time.”
4. While confronted with the hereinabove factual and legal position, learned counsel for the applicant could not submit any reasonable explanation in this regard, nor could assist as to how instant Reference Application is maintainable, for having been filed after expiry of period of limitation. Accordingly, instant reference application filed against an order in Appeal No.131/2015 dated 07.12.2016 is dismissed in limine along with listed application for being time barred.
Judge