COLLECTOR CENTRAL EXCISE AND SALES TAX, MIRPUR, COMMISSIONER INLAND REVENUE) VS JAVED MINHAS, 2018 PTD-SUPREME-COURT-AZAD-KASHMIR 2270 (2018)

(On Appeal from the order of the High Court dated 27.09.2017 in Reference No.38 of 2012).

(a) Sales Tax Act (VII of 1990)---

----S. 47---Reference to High Court---Adjudication under S.47 of the Sales Tax Act, 1990 --- Reference filed against deceased assesee / tax payer---Non-impleadment of legal heirs of such assessee/taxpayer---Scope---Department impugned order of High Court whereby its reference under S.47 of the Sales Tax Act, 1990 was dismissed on ground that the same was filed against a deed person---Validity---Perusal of record revealed that when process-server reported that taxpayer had died, the Department was directed to file application for impleading his legal heirs, which was not done---Department was duty-bound to bring on record legal heirs of deceased when it was known to Department that the respondent assessee had died and no proceeding could continue against a dead person and a reference under S.47 in such case could not be treated as valid---No illegality existed in the impugned order---Appeal was dismissed, in circumstances.

Azad Goverment of the State of Jammu and Kashmir v. Sarfraz Alam and others 1997 MLD 383 rel.

(b) Administration of justice ---

----Law helped the vigilant and not the indolent, and a party who was not vigilant could only blame itself for negligence committed by such party and not the Court.

Haji Muhammad Afzal, Advocate for Appellants.

Ch. Kamran Tariq, Advocate for Respondents.

Date of hearing: 26th June, 2018.

JUDGMENT

GHULAM MUSTAFA MUGHAL, J.---The titled appeal by leave of the Court has been filed against the order dated 27.09.2017, passed by the Azad Jammu and Kashmir High Court in Reference No.38 of 2012.

2.The precise facts forming the background of the captioned appeal are that the Collector Central Excise and Sales Tax, Mirpur, filed a reference under section 47 of the Sales Tax Act, 1990, against the judgment/order passed by the Sales Tax Appellate Tribunal AJ&K, on 05.12.2012. The record reveals that the reference was fixed for arguments on 27.09.2017, when the same was dismissed by the learned Division Bench of the High Court for having been filed against a dead person, through the impugned order dated 27.09.2017.

3.Haji Muhammad Afzal, the learned Advocate appearing for the appellants argued with vehemence that the order passed by the learned High Court is illegal, erroneous and void ab initio for having been handed down in violation of the mandatory provision of the Azad Jammu and Kashmir Sales Tax Rules, 2006 and The Appellate Tribunal Inland Revenue Rules, 2010, because under these rules, there is no concept of dismissal of the appeal or reference on account of abatement. He further argued that the appeal or reference can proceed notwithstanding the death or insolvency of a party and the provisions of the Code of Civil Procedure are not applicable to the proceedings before Sales Tax Appellate Tribunal or to a reference before the High Court. The learned Advocate further argued that the order has been passed in a hasty manner without providing reasonable opportunity of hearing to the appellant, herein, and even sufficient time has not been given for submitting the application for brining on record the legal heirs of the deceased. The learned Advocate submitted that it was the duty of the Court to apply the correct law notwithstanding the fact that the Advocates representing the parties has drawn its attention to the correct legal position or not.

4.Conversely, Ch. Kamran Tariq, the learned Advocate appearing for the respondents argued that if it is assumed for the sake of arguments that provisions of the Code of Civil Procedure are not applicable to the reference filed under section 47 of the Azad Jammu and Kashmir Sales Tax Act, 1990, before the learned High Court, even then, it was the duty of the Advocate or the petitioner to bring on record the legal heirs of the deceased because without impleading the legal heirs, no proceedings including reference can proceed against a dead person. The learned Advocate further argued that there is no legal infirmity in the impugned order recorded by the learned High Court, therefore, the order is liable to be upheld.

5.We have heard the learned counsel for the parties and have gone through the record of the case. A perusal of the record reveals that reference was filed by the appellant, herein, under section 47 of the Sales Tax Act, 1990, before the Azad Jammu and Kashmir High Court, against the judgment/order of the Sales Tax Appellate Tribunal AJ&K, on 05.12.2012. On 18.04.2015, it was reported by the process server that respondent, Muhammad Afzal Khan Minhas has died and it was directed that application for impleading his legal heirs may be filed. The next date of hearing was fixed as 22.06.2015. From 22.06.2015, the case was adjourned to 14.10.2015 and on 14.10.2015, it was again directed that application for bringing legal heirs of the deceased may be filed. The record further reveals that no application was filed till 27.09.2017 when the learned Division Bench of the High Court took notice of the fact and dismissed the reference for having become infructuous while observing that reference cannot proceed against a dead person. It has rightly been argued by Haji Muhammad Afzal, Advocate, that in certain cases, proceedings before the Tax Officer or before a Tribunal or even before the High Court may not abate due to death or insolvency of a party but fact remains that it was the duty of the petitioner before the High Court to bring on record the legal heirs of the deceased when it was known to him that the respondent before the High Court has died. It may be stated here that no proceeding can continue against a dead person and reference or appeal, as the case may be, cannot be treated as valid. Due to the vacuum created because of the conduct of a party, the Court cannot proceed further. Reference may be made to a case reported as Azad Government of the State of Jammu and Kashmir v. Sarfraz Alam and others 1997 MLD 383 wherein, at page 384 of the report it has been observed by this Court as under:--

"The name of Sarfraz Alam had already been struck off. Now with the deletion of respondent No.2 there remains no respondent in the petition for leave to appeal. In view of the vacuum thus created, the case cannot proceed further. When this was pointed out to the learned counsel for the Government, he could not cite any provision of law or practice of the Court under which an appeal can be heard without there being a respondent. Therefore, the question of grant of leave in the case does not arise."

The reference remained pending for a period of more than two years but no application was filed for bringing on record the legal heirs of the deceased. The contention of the learned Advocate for the appellant that he has not been heard, is devoid of any force because his presence is marked before the Court. He has not submitted any such application along with the petition for leave to appeal and even up-till now. Today, he has requested to file application but we think that it is too late. Law help the vigilant and not the indolent. A party who is not vigilant can only blame himself for the negligence committed by him and not the Court. In this perspective of the matter, when we judge the impugned order, we feel no hesitation to hold that the order does not suffer from any legal infirmity.

In view of the above, finding no force in this appeal, the same is hereby dismissed. No order as to costs.

KMZ/53/SC(AJ&K) Appeal dismissed.