AGRI FROCE CHEMICALS VS FEDERATION OF PAKISTAN, 2016 PTD-LAHORE-HIGH-COURT-LAHORE 1070 (2015)

Sales Tax Act (VII of 1990)---

----S. 7---Sales tax, recovery of---Pendency of appeal---Grievance of petitioner was that authorities attempted to recover disputed sales tax during pendency of appeal before authorities---Validity---Authorities were not empowered to recover tax amount demanded from petitioner/tax payer till decision of appeal before Commissioner (Appeals)---High Court directed the Commissioner Inland Revenue (Appeals) to take up stay application of petitioner against notice of recovery and to decide the same and that till the time appeal was finally determined or application of stay was decided, operation of notice of recovery against petitioner would remain suspended---Constitutional petition was disposed of accordingly.

Central Board of Revenue v. Chanda Motors 1993 SCMR 39; Sun Rise Bottling Co. (Pvt.) Ltd. v. Federation of Pakistan 2006 PTD 535; 2006 PTD 1054; 2006 PTD 535; 2009 PTD 1715 and Messrs Manga Processing Industries (Pvt.) Ltd. v. Federation of Pakistan and others 2014 PTD 2005 rel.

Sh. Zafar ul Islam and Tanveer Ahmed for Petitioner.

Syed Khalid Javed Bukhari, Advisor of F.B.R. on Court's call.

ORDER

MUHAMMAD SAJID MEHMOOD SETHI, J.---The contents of instant writ petition reveal that petitioner, a registered company, is engaged in business of pesticides and duly registered with the Tax Authorities at National Tax Number (NTN) 1689341-7 and Sales Tax Registration Number (STRN) 04-02-3808- 003-64. The petitioner served order in original vide No.251/2014- 2015 dated 04.02.2015, upon which Sales Tax of Rs.4,335,772/- was charged by the respondents. Being aggrieved, petitioner approached to the Commissioner Inland Revenue (Appeals) and preferred an appeal on 24.03.2015, which is still pending. The petitioner also filed an application for expeditious adjudication of said appeal as well as requested for grant of stay to the respondent No.4, which is also pending. But despite pendency of appeal as well as stay application, the respondent/department is pressing hard for payment of said Tax and for recovery of the same, coercive measures are likely to be adopted against the petitioner.

2.Syed Khalid Javed Bukhari, Advisor of F.B.R. is present on behalf of respondent/department, on Court's calls.

3.Heard.

4.As is evident from the aforesaid contention of petitioner, that the appeal as well as stay application of petitioner are already pending adjudication before the Commissioner (Appeals) Inland Revenue, Multan and the same are not being fixed for hearing, but despite that respondent/ department is pressing hard for recovery of said Tax and coercive measures are likely to be adopted.

5.The request of learned counsel for the petitioner is tenable. The law laid down in a case titled "Central Board of Revenue v. Chanda Motors" (1993 SCMR 39) is that:--

"It is well-settled that when an appeal is filed against an assessment order before the AAC, the assessment is thrown open and the appellate proceeding constitutes a continuation of the assessment proceedings."

In the case titled "Sun Rise Bottling Co. (Pvt.) Ltd. v. Federation of Pakistan (2006 PTD 535) it was held that:--

"It is directed that the respondent No.5 shall not press for recovery of impugned dues from the petitioner who shall appear before the learned Appellate Tribunal through an appropriate application seeking final adjudication of the pending appeal."

The above view has also been followed in judgments reported as 2006 PTD 1054, 2006 PTD 535 and 2009 PTD 1715.

Therefore, until final decision of the appeal, the respondents cannot recover the amount from the petitioner. The same findings were given by this court in another case titled "Messrs Manga Processing Industries (Pvt.) Ltd. v. Federation of Pakistan and others" (2014 PTD 2005)

6.In this view of the matter, the Revenue Authorities are not empowered to recover the tax amount demanded from petitioner/tax payer till decision of appeal before the Commissioner (appeals). Hence, the respondent No.4/Commissioner Inland Revenue (Appeals), Multan is directed to take up the stay application of petitioner against the notice of recovery and decide the said application, within 15 days from receipt of this order. Till the time, the appeal is finally determined or the application for stay is decided by respondent No.4, whichever is earlier, the operation of impugned notice of recovery against petitioner, shall remain suspended.

7.With above findings and direction, the instant writ petition is hereby disposed of.

MH/Z-115/LOrder accordingly.