Commissioner Inland Revenue, RTO, Sialkot | Appellant | |
Vs | ||
M/s General Fan Company (Pvt) Ltd., Gujrat | Respondent | |
Appellant by | Mr. Shamshad Gul, DR | |
Respondent by | Rana Munir Hussain, Advocate | |
Date of hearing | 27.05.2019 | |
Date of order | 27.05.2019 |
M. M. AKRAM (Judicial Member): This miscellaneous
application has been filed by the department for the vacation of stay granted
by this Tribunal vide order MA (Stay) STA No.581/IB/2019 dated 25-04-2019
wherein the operation of the impugned order bearing
C.No.1(&&)STM/2018/49946-R dated 10th April, 2019 passed by
the Board (FBR) under section 40B of the Sales Tax Act, 1990 was suspended till
the outcome of the appeal and restrained the department from proceeding
further. The department has assailed the interim order on the grounds as set
forth in the said application.
2. Brief facts of the case are that by
invoking the provisions of section 40B of the Sales Tax Act, 1990, the FBR
passed an order dated 10-04-2019 and posted officers/officials at the business
premises of the respondent/registered person, in order to monitor production,
sales of taxable goods and their stock position. The registered person on
receipt of the order passed by the FBR preferred the appeal before this
Tribunal under section 46 of the Sales Tax Act, 1990 along with stay
application on 24-04-2019. However, the stay application was heard on 25-04-2019 by this
Tribunal whereby the interim relief was granted to the registered person by
suspending the operation of the impugned order. Feeling aggrieved, the
department has filed an application before this Tribunal on 30-04-2019 for the vacation
of the stay order.
3. The said application came up for hearing
on 27-05-2019 before this Tribunal. The learned DR reiterated the same grounds
as enumerated in the application. On the other hand, the learned AR apprised
this Tribunal that during the stay period, the department has
finalized/prepared the monitoring report incompliance of the impugned order
passed by the FBR, and in consequence thereof, the show cause notice has also
been issued to the registered person by the competent authority, therefore, he
contended that this application has now become infructuous and prays for
dismissing the same.
4. We have heard both the parties and
perused the record. We have noticed that the appeal filed by the registered
person is not maintainable as section 46 of the Sales Tax Act, 1990 does not
give any right of appeal to the registered person to file an appeal before this
Tribunal against an order passed by the FBR under section 40B of the Sales Tax
Act, 1990. This fact was confronted to the learned AR but he could not satisfy
this Tribunal with any logical explanation. For ease of reference, section 46 (1)
of the Sales Tax Act, 1990 is reproduced hereunder:-
“46. Appeals
to Appellate Tribunal:- (1) Any person including an officer of Inland
Revenue not below the rank of an Additional Commissioner, aggrieved by any order passed by-
(a) the Commissioner of Inland Revenue (Appeals)
under section 45B,
may, within sixty days of the receipt of such
decision or order, prefer appeal to the Appellate Tribunal.
(2)………………………….”(Emphasis supplied)
The bare reading of the above
provisions of law expressly provides the right of appeal to any aggrieved
person against the order passed by the FBR only under section 45A of the Sales
Tax Act, 1990. The legislature in its own wisdom has not provided the remedy to
the person against the order passed by the FBR under section 40B of the Sales Tax
Act, 1990. Prior to the amendment through Finance Act, 2018 in section 40B of
the Sales Tax Act, 1990, the remedy of appeal was provided to the person
against the order passed by the Commissioner Inland Revenue under section 40B
of the Sales Tax Act, 1990. However, before or after the amendment in section
40B, the right of appeal is not provided to the registered person against the
order passed by the FBR under the said provision. It is an immutable principle
of law that appeal cannot be claimed as a right unless provided by the statute.
Language of clause (c) of sub-section (1) of section 46 of the Sales Tax Act,
1990 expressly provides that right of appeal is available to the registered
person only against an order passed by the Board (FBR) under section 45A of the
Sales Tax Act, 1990 and none else. The Hon'ble Supreme Court of Pakistan in its
judgment titled as Mughal Surgical (Pvt.) Ltd. and others v. Presiding Officer, Punjab
Labour Court No.7 and other (2006 SCMR 590) has held that appeal is
not a natural or an inherent right of litigants, but is a statutory right
granted by different laws by different enactments. In Muzaffar Ali v. Muhammad Shafi
(PLD 1981 SC 94) it is held that the right of appeal can only be
availed if it is granted by law. In a judgment cited as Malik Umar Aslam v. Mrs.
Sumaira Aslam and others (2014 SCMR 45), the Apex Court has
re-emphasis the principle that “appeal is
a statutory right that can only be exercised if the statute has provided so as
a matter of right”.
5. In the
instant case, admittedly the impugned order is passed by the Board (FBR) under
section 40B of the Sales Tax Act, 1990 which has been assailed by the
registered person before this Tribunal through appeal under section 46 of the
Sales Tax Act, 1990. However, no statutory right of appeal is available to the
registered person under the said provisions of law, and as such the appeal
filed by the registered person is not maintainable. Therefore, keeping in view
of the peculiar circumstance of this case and ratio decided by the Apex Court
in respect thereof, the titled miscellaneous application of the department is
accepted and the interim order dated 25-04-2019 passed by this Tribunal is
vacated.
6. The
miscellaneous application for rectification is disposed of in the manner indicated
above. This order consists of (03) pages and each page bears my signature.
Sd/- (M.M. AKRAM) JUDICIAL MEMBER | |
Sd/- (NADIR MUMTAZ WARRAICH) ACCOUNTANT MEMBER |
Sd/-
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