Special Sales Tax Reference Application No.48/2012
Present
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar
Commissioner Inland Revenue Zone-I,
R.T.O. Hyderabad ……………………………………..…Applicant
Versus
M/s. Sujnani Wine Shop, Risala Road, Hyderabad…………….. …….Respondent
Date of hearing 20.11.2014
Date of judgment 20.11.2014
Mr. S. Mohsin Imam Wasti, advocate for the applicant
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Aqeel Ahmed Abbasi, J: Through instant reference application, four questions have been proposed by the applicant, however, learned counsel for the applicant submits that he will press question No.1 only, which according to learned counsel, will resolve the controversy involved in the instant matter. Question No.1 reads as follows:-
“Whether on the facts in the circumstances of case, the learned Appellate Tribunal was justified in law or not to held that vend fees, assessment fees and surcharge on assessment fees actually paid and collected from consumer was not liable to be added in the value of supply under section 2(46)(e) of the Sales Tax Act, 1990?”
2. Learned counsel for the applicant submits that the controversy involved in the instant matter revolves around the levy of vend fees, assessment fees and surcharge on assessment fees in the case of respondent, in terms of Section 2(46) of Sales Tax Act, 1990, which aspect of the matter, according to learned counsel, has not been decided by the Appellate Tribunal through a speaking order. Learned counsel for the applicant has read out the impugned order passed by the Appellate Tribunal in the instant case and submits that the question may be answered in favour of the applicant.
3. We have heard learned counsel for the applicant and perused the orders passed by the forums below as well as by the Appellate Tribunal in the instant case. It will be advantageous to reproduce the findings of the Collector (Appeals), who while deciding the subject controversy has observed as follows:-
“I have gone through record of the case, considered the written and verbal arguments put forth by the appellant’s counsel as well as departmental representative and arrived at the conclusion that main issue involved in this case is that provincial excise duty / assessment fee and surcharges collected from the buyers by the appellant, are to be included in the assessable value or not?. In this regard the appellant’s counsel has produced a copy of judgment of Honourable Supreme Court of Pakistan, in Civil Petition Nos.26-K/2006 to 39-K/2006, 42, 43,-K/2006 and 53-K/2006, Honourable High Court of Sindh, in CP Nos.1070 to 1072, 1284, 1739, 1740, 1763, 1771 to 1776, 1798, 2034 all of 2002, Honourable Appellate Tribunal, Karachi, in Sales Tax Appeal No.H-193 of 2003, and Sales Tax Appeal No.147/06 (Old No.H-06/05), and Honourable Appellate Tribunal, Lahore and Sales Tax Appeal No.157/LB/2002. In the above judgments of Apex Courts, the Honourable Supreme Court of Pakistan and Honourable High Court of Sindh, have declared the levy of assessment fee, vend fee and surcharge as ultra vires of the constitution and has ordered it to be struck down. In light of above decisions of the Apex Court as well as Honourable High Court of Sindh and Honourable Supreme Court of Pakistan, I set aside the order-in-original No.11/2008 dated 23-06-2008 and allow appeal accordingly.”
4. Similarly, the Appellate Tribunal, while concurring with such finding on fact and law as recorded by Collector (Appeals) has observed as follows:-
“The vires of the said order have now been challenged by way of the present appeal. The appellant contended that the order of the respondent is not correct in terms of provisions contained in subsection (46) of section 2 of the Sales Tax Act, 1990 and as such the same should be declared to be invalid.
“Rival parties have been heard and the case record examined. From the facts, it is evident that the only issue is whether or not the amount of fee and vend fee should be added to the value of good. The order of the Collector (Appeals) is based on a judgment of the Hon’ble Supreme Court of Pakistan wherein it has been held that the levy of assessment fee and vend fee was ultra vires of the constitution and as such the same was not chargeable. In the light of said order of the Hon’ble Supreme Court of Pakistan, the order passed by the respondent does not require any interference and as such there is no merit in the appeal hence the same is accordingly rejected.
5. From perusal of the record and orders of forums below as well as from order of the Appellate Tribunal, it appears that since the very levy and charging of assessment fee and vend fee has been declared to be ultra vires by the Honourable Supreme Court, therefore, no occasion for addition of any such fee for the purpose of value addition in terms of section 2(46) of the Sales Tax Act, 1990, arises. We do not find any substance in the instant reference application or the question No.1 as proposed and pressed by the learned counsel for applicant in the instant case as no question of law arises which may require any opinion of this Court, particularly, when the decision is based on the judgment of Hon’ble Supreme Court. Accordingly, instant reference application is misconceived in law and facts, which is dismissed in limine.
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