ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Spl. Sales Tax Ref. Application No.372/07

Date Order with signature of Judges

1. For Katcha Peshi.

2. For hearing of CMA No.1945/07

11.03.2010

Syed Mohsin Imam, Advocate for the applicant.

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This reference application has been filed under Section 47 (1) of the Sales Tax Act 1990 against the impugned order dated 15.06.2007 passed by the learned Customs, Excise and Sales Tax Appellate Tribunal, Bench-I, Karachi, in Sales Tax Appeal No.H-03/2007. The following questions are set to arise from the impugned order:-

1. Whether the instant order of the Appellate Tribunal is one sided order resulting in adverse decision against the appellant department by making incorrect insertion at para-9 of the order that the representative of the respondent department had stated the mistake was corrected after it was pointed out.

2. Whether the Appellate Tribunal order is against the spirit of justice and law and also without considering the incorrect value shown by the registered person in the RT-1 statement/Sales Tax Return, being after thought and totally different from the value of the initial documents i.e. AR-1s prepared at the time of clearance of the goods from the factory.

2. On 21.01.2010 learned counsel for the applicant was put to notice to explain as to how the proposed questions are questions of law arising out of the impugned order. Learned counsel for the applicant sought time for the same. Today, when the matter was taken up for hearing learned counsel after referring to impugned order and having read the proposed questions has frankly stated that the proposed questions cannot be termed as questions of law.

3. We have heard the learned counsel for the applicant, examined the case record and perused the impugned order. From the perusal of the impugned order with particular reference to its para 9, it appears that in view of the statement of the representative of the department and after examination and due verification of sales tax record, the learned Member Judicial, Customs, Excise and Sales Tax Appellate Tribunal has given its finding on the basis of facts of the case. We are unable to understand as to how a finding of fact particularly based upon due verification of the record and admission by the departmental representative can be agitated before this Court in its reference jurisdiction in the garb of purported questions of law. This bench in its recent judgment in Sales Tax Reference No.76 of 2009 in the case of M/s Telecard Limited v. The Collector of Sales Tax & Central Excise (Enforcement), Large Taxpayers Unit has observed that questions involving factual controversy could not be allowed to be converted into legal issues only by dint of draftsmanship or employment of legal language in a style which is usual to the framing of such questions. Further reliance in this regard can be placed to a Division Bench judgment of this Court in the case of Messrs Japan Storage Battery Ltd. V. Commissioner of Income Tax, Karachi 2003 P.T.D 2849.

4. In view of hereinabove, we are of the opinion that the instant reference application is misconceived and the same is dismissed in limine alongwith listed application.

5. However, we have restrained ourselves from passing any order as to imposition of cost, with the caution that if similar frivolous applications are filed we would be constrained to impose heavy cost in such cases.

J U D G E

Nadeem