Special S.T.R.A. No. 424 of 2017
Present
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Arshad Hussain Khan
Date of hearing : 20.11.2017
Date of order : 20.11.2017
Applicant : Sindh Revenue Board
through Mr. Shamshad
Ahmed, Law Officer
Respondent : Nemo for the respondent
O R D E R
AQEEL AHMED ABBASI, J:- Through instant reference Application, the applicant department has proposed following question, which according to learned counsel for the applicant, are questions of law arising from the impugned order dated 18.07.2017 passed by the Appellate Tribunal Sindh Revenue Board (SRB), in Appeal No. 09/2017, for opinion of this Court:-
“A. Whether the Appellate Tribunal was justified in hastily dismissing appeal filed under section 61 of Sindh Sales Tax on Services Act, 2011(herein after referred to as 2011-Act) filed by Appellant, without considering the merits of the case, merely on the grounds that the appeal filed by Appellant is time barred?
B. Whether the Appellant Tribunal dismissing appeal filed by the Applicant under section 61 of the 2011-Act. While, the Respondent fails to deposit the amount of tax due for the tax periods under review and during proceedings attempted to evade the Sindh Sales Tax?”
2. Learned counsel for the applicant, after having readout the impugned order passed by the Appellate Tribunal, Sindh Revenue Board, in the instant matter, has contended that the Appellate Tribunal SRB was not justified to dismiss the appeal of the applicant department on account of being time barred and could have decided the appeal on merits instead of technicalities. It has been contended that due to change of jurisdiction, the concerned officer could not file the appeal before the Appellate Tribunal within the prescribed period of limitation provided under the law, however, such position was explained before the Appellate Tribunal, while seeking condonation of delay, but condonation of delay has been declined, and the appeal filed by the applicant has been dismissed by the Appellate Tribunal on the point of limitation, without recording any finding on the merits of the case. It has been submitted that the impugned order may be set-aside and the proposed questions may be answered in “Negative” in favour of the applicant and against the respondent.
3. We have heard the learned counsel for the applicant, appearing on behalf of the applicant department, perused the impugned order passed by the Appellate Tribunal in the instant case and have also examined the record with his assistance. Record shows that against an Order-in-Original No.154 of 2015 dated 21.08.2015 passed by the Assistant Commissioner, Sindh Revenue Board, Commissionerate-II, Hyderabad Division, respondent filed an Appeal No.178/2015, which was decided by the Commissioner (Appeals) vide Order-in-Appeal No.197/2016 dated 18.11.2016, whereby, Order-in-Original, passed by the Assistant Commissioner (SRB), was set-aside and the respondent was discharged from the liability created through impugned Order. The applicant department being dissatisfied with the order passed by the Commissioner (Appeals), SRB in the instant case, filed Second Appeal before the Appellate Tribunal, SRB (Appeal No.09/2017) on 30.01.2017, which was admittedly, time-barred, as it was filed after expiry of period of limitation, i.e. after a delay of nine (09) days. An objection as to limitation, was raised on behalf of the respondent before the Appellate Tribunal, SRB, and the department’s representative was duly confronted with such objection relating to limitation, however, it appears that no reasonable explanation could be offered by the departmental representative before the Appellate Tribunal, who has been pleased to dismiss the appeal of the applicant department after scrutiny of the material facts in the following terms:-
“(10). I have considered the arguments of both the parties and perused the record.
(11) It is evident from the record that OIO was signed on 18.11.2016 and same was served on 22.11.2016, as mentioned in the memo of appeal. The appeal before this Appellate Tribunal was filed on 30.01.2017 after delay of 9 days.
(12) It is stated law that the time barred appeal can only be admitted if the Tribunal is satisfied that the person appealing was prevented by sufficient cause from filing appeal within time specified by law. The discretion available to the Tribunal has to be exercised judiciously. The person appealing beyond time prescribed by law has to be justifying each day delay further the question of limitation cannot be as mere technicality as it has its own significance upon change of jurisdiction delay was caused. But from the perusal of record it appears that department has referred two notifications dated 29.04.2016 and 01.12.2016 which shows that jurisdiction of service category of “construction services” was transferred back to Hyderabad on 01.12.2016 while Order in appeal was served upon the department on 22.11.2016 and jurisdiction was changed on 01.12.2016 and department was having 51 days more to file the appeal within the period prescribed by the law. In these circumstances the time barred appeal, references is made to 2016 PTD 900 Sindh High Court, wherein it was held
-----Statutory period of limitation---Delay---Governments Departments could not claim to be treated in any manner differently from an ordinary litigant and in fact government enjoyed unusual facilities for preparation and conduct of cases and its resources were much larger than those possessed by ordinary litigants, and delay of each day had to be explained.[p.909]”
4. Learned counsel for the applicant was confronted with hereinabove factual and legal position, however, he could not submit any satisfactory response to the finding of fact as recorded by the Appellate Tribunal, SRB in the instant case, according to which, the appeal filed by the department before the Appellate Tribunal, SRB was time-barred and no reasonable explanation was offered, while seeking condonation of delay. It is a settled legal position that Government Departments cannot be extended different treatment in respect of the legal provisions and the procedure provided for assailing any order before the Statutory Forum of Appeal, while seeking condonation of delay in filing an appeal within the prescribed period of limitation, delay of each and every day is required to be explained reasonably, for the reason that on the expiry of period of limitation, a vested right accrues in favour of a succeeding party, whereas, defaulting party cannot be rewarded for such default and omission and that too, to the disadvantage of other party. Learned counsel for the applicant has not been able to explain the delay in filing appeal before the Appellate Tribunal reasonably and has merely argued that instead of dismissing the appeal of the department on technical ground, the same could have been decided on merits. Such argument has no rationale on the other hand, it is contrary to legal position already settled by this Court in number of reported decisions
5. Accordingly, we do not find any substance in the arguments advanced on behalf of the applicant department, as we have already dismissed number of references filed on behalf of the department as well as by the taxpayers on the point of limitation, if there is no reasonable explanation offered, while seeking condonation of delay in filing appeal. Reference in this regard can be made to the orders dated 23.04.2015 passed by this Court in Special S.T.R.A. No. 122 of 2015 [Re: The Commissioner Inland Revenue v. Sony Traders Wine Shop]; dated 16.09.2016 in Special Customs Reference Application No. 367 of 2016 [Re: M/s. Pakistan Soap Manufacturer v. Customs Appellate Tribunal & other]; & dated 25.05.2017 in Income Tax Reference Application No. 47 of 2017 [Re: The Commissioner Inland Revenue v. Maymar Housing Services (Pvt.) Ltd.].
6. Under similar circumstances, in the case of Collector of Customs v. Shahdev Vankwani reported as PTCL 2016 CL. 392, this Court has held as under:-
“We may observe that on expiry of period of limitation provided for filing reference or appeal etc. creates a vested right in favour of succeeding party and unless some reasonable explanation is given, explaining the delay of each and every day, condonation under such circumstances cannot be allowed. Accordingly we are of the opinion that the admitted delay in filing both instant reference applications has not been explained reasonably, therefore, reference applications are dismissed in limine for being time barred, alongwith listed applications.”
7. In view of hereinabove facts and circumstances of the case, we are of the considered opinion that the impugned order passed by the Appellate Tribunal, Sindh Revenue Board in the instant case does not suffer from any factual and legal error, hence does not require any interference by this Court in exercise of its reference jurisdiction. Instant Reference Applicant being devoid of any merit, is hereby dismissed in limine alongwith listed application.
J U D G E
J U D G E
A.S.