Form No:HCD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Case No. STR (PRA) No. 62678/2021
M/s Prix Pharmaceutica (Pvt) Ltd. Versus Appellate Tribunal Revenue
Authority and others
S.No. of order/ Date of order/ Order with signature of Judge and that of
Proceedings Proceedings Parties of counsel, where necessary.
11.10.2021. Mr. Abdullah Akhtar Butt, Advocate for the applicant.
Sheikh Nadeem Anwaar, Assistant Attorney General.
Sardar Qasim Hassan Khan, Advocate for the
Respondent-department.
Barrister Zargham Lukhesar, Assistant Advocate
General on Court’s call.
Through this Reference Application under Section
67A of the Punjab Sales Tax on Services Act, 2012 (the
“Act”) the order dated 16.10.2019 (the “impugned
order), passed by learned Appellate Tribunal Punjab
Revenue Authority, Lahore has been impugned by the
Applicant, whereby the order dated 11.02.2019, passed by
the Commissioner (Appeals) PRA, reducing the assessed
amount under Section 49 of the Act 2012 was upheld.
2. Following questions of law stated to have arisen out
of impugned order dated 16.10.2019, have been proposed
for determination by this Court:-
“Whether on the facts and under the
circumstances of the case the learned
Tribunal was justified in upholding the
addition made in advertisement expenses
confirming the Commissioner (Appeals)
stance that such expenses in the nature of
printing of promotional material and
payment of rent for stall at expo trade
center are covered under Serial No.12 of
the Second Schedule to the Act?
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b) Whether on the facts and under the
circumstances of this case, the learned
Tribunal was justified in upholding the
addition made in Carriage Out Charges
confirming the Commissioner (Appeals)
stance that Circular No.2 has no relevance
in the instant case as no Addas were
notified by the Authority as stated therein;
ignoring the fact that same circular
granting general exemption had been
extended from time to time?.
C) Whether on the facts and under the
circumstances of this case, the learned
Tribunal was justified in burdening the
appellant with withholding tax under the
head of Carriage out charges in disregard
to Section 52(1) of the Act which speaks of
the person liable to pay such amount of tax
or charge as has been not levied or short
levied; ignoring that withholding agent
cannot be saddled with liability without
first confronting the service provider?
3. Facts of this Reference are that M/s Prix
Pharmaceutica (Pvt) Ltd. (the Applicant) registered under
Rule 2(f) of the Punjab Sales Tax on Services
(withholding) Rules, 2015 (the “Rules”), as Withholding
Agent, failed to withhold and deposit the due amounts of
the Sales Tax, thereupon, a show cause notice was issued
to it, the reply of which was found unsatisfactory by the
department being not supported by the invoices/documents
resultantly amounts of Rs.2,547,908/- and Rs.127,395/-
were determined qua sales tax and surcharge under
Sections 52 and 48 of the Act by the Commissioner
Enforcement-III, vide order dated 07.08.2018. On Appeal
by the Applicant-company aforesaid order was modified
reducing the assessed amount to Rs.855,877/- by the
Commissioner (Appeals) PRA, vide order dated
11.02.2019, which was upheld by the learned Appellate
Tribunal Punjab Revenue Authority Lahore, vide order
STR (PRA) No. 62678 of 2021
3
dated 16.10.2019 being impugned through this Reference
Application.
4. It is contended by learned counsel for the Applicant-
company that along with this Reference, he has also filed
an Application (C.M.No.2 of 2021) for condonation of
delay on the ground that the impugned order dated
16.10.2019, passed by the learned Appellate Tribunal
Punjab Revenue Authority Lahore was not served upon the
Applicant in due course of time rather on submitting an
Application to the authority concerned, it was made
available to the Applicant on 14.07.2021 and due to very
this reason it could not file this Reference Application in
time.
5. Conversely, Sardar Qasim Hassan Khan, learned
Legal Advisor appearing on behalf of the Respondent
department, at the outset, objects to the maintainability of
this Reference Application. States that on failing to
perform its legal obligations being a Withholding Agent,
vide orders dated 07.08.2018, passed by learned Additional
Commissioner Enforcement-III, it was held to be failed to
withhold and pay Punjab Sales Tax in term of Section 14
of the Act besides to deposit the determined amount along
with surcharge under relevant provisions of the Act; which
order, on Appeal, was modified by the Commissioner
Appeals PRA vide order dated 11.02.2019; and the
latter/order was upheld by the learned Appellate Tribunal
Punjab Revenue Authority, Lahore, vide order dated
16.10.2019. Adds that the certified copy of the order dated
16.10.2019 was applied by the Applicant on 14.07.2021
which was delivered to it on the same day. Maintains that
on calculation it will crystal clear, the Reference is very
near to two years’ time barred. Besides, Applicant’s stance
STR (PRA) No. 62678 of 2021
4
that it could not file this Reference Application in time, as
it received certified copy of the impugned order on
14.07.2021, let the certification seal affixed by the copy
issuing agency at the back of the last page of the impugned
order be perused, which reveals that the certified copy was
applied on 14.07.2021 and was also received on the same
day. Further maintains that neither this Reference
Application nor during the arguments learned counsel for
the Applicant has been able to tender a plausible reason
before the Court why such a long time has been consumed
to have a certified copy of the impugned order. Placing
reliance on Commissioner of Income Tax/Wealth Tax,
Legal Division, Multan versus Lady Dr. Musarrat
Mumtaz, C/o D.H.Q. Hospital D. G. Khan (2011 PTD
2358) submits that Limitation once started running could
not be stopped or suspended by any subsequent event.
Provision of the Limitation Act, 1908 would be construed
strictly and applied without having any regard to equitable
considerations. Provision of Section 3 of the Limitation
Act being mandatory in nature could be applied even
though limitation was not set up in defence. Prays for
dismissal of this Reference Application being barred by
time i.e. 691 days. Maintains that as far stance of the
Applicant that the impugned order has not been
communicated to it does not appeal to mind, as while
concluding the impugned order dated 16.10.2019, the
learned Appellate Tribunal wrote, “The Registrar of the
Tribunal is directed to communicate this judgment to all
concerned immediately…” Further adds that for the sake of
argument, if stance of the Applicant may be acceded to, yet
the fact remains that; if one especially a
businessman/company has approached a court of justice
regarding involvement of one’s finance with the request of
STR (PRA) No. 62678 of 2021
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reduction in sales tax and surcharge thereupon and should
not have an eye on outcome that too for such a long time is
not acceptable so far as my little experience and
observation concerned dealing such pieces of matter.
Lastly seeks dismissal of this Reference Application being
badly time barred, as mentioned above.
6. Learned counsel for the parties have been heard and
the record perused.
7. As this Reference Application has been filed under
Section 67A of the Act and 67(7) of which reads as under:-
“Section 5 of the Limitation
Act 1908 (IX of 1908) shall
apply to a Reference under
this Section.”
8. On confrontation by this Court, how this Reference
Application is maintainable especially in view of the
objection raised by learned counsel for the Respondent that
it is barred by 691 days, the learned counsel reiterates his
stance taken above adding that he has filed the Application
for condonation of delay and prayed for its acceptance and
determination of questions of law proposed above.
9. The impugned order was passed by learned
Appellate Tribunal on 16.10.2019. It has neither been
contended in the application for condonation of delay that
the order was reserved or was kept in wait for orders or
any effort was made to ascertain as to whether the order
has been passed by learned Appellate Tribunal, nor any
document has been produced by the Applicant to show that
the copy of impugned order was not sent to it.
STR (PRA) No. 62678 of 2021
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10. Elucidating the question of limitation in a Custom
Reference bearing No. 42 of 2013 titled Collector of
Customs and others versus M/s Zahoor Sons and others,
the learned Division Bench of this Court enlightening its
applicability has comprehensively discussed it and
observed that law on the subject is very clear that
presumption of correctness is attached to the judicial
proceedings in terms of Article 129 (e) of the Qanun-e-
Shahadat Order, 1984, and in order to displace the same,
some evidence is required to be produced by the Applicant
along with Application for condonation so as to make out a
case for condonation of delay within the contemplation of
provisions of Section 196 (8) of the Act of 1969 read with
Section 5 of the Limitation Act, 1908. Further that it is
well settled that delay in filing proceedings could not be
condoned lightly unless it was shown that there were
sufficient reasons causing the delay. Law of limitation
reduced an effect of extinguishment of a right of party
when significant lapses occurred and when no sufficient
cause of such lapses, delay or time-barred action was
shown by defaulting party, the opposite party was entitled
to a right accrued by such lapses. Negligence does not
constitute sufficient cause to condone delay. Party seeking
advantage of Section 5 of Limitation Act, 1908 must
satisfy the Court that it had not been negligent and had
been pursuing the case with due diligence and care.
11. Summing up our discussion and in view of the
objection raised by learned counsel for the Respondent
and also seeking support from the above referred
judgments, we hold that this Reference Application filed
by the Applicant is vividly time barred and Application
for condonation of delay did not disclose any cogent,
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convincing and justifying reasons for condonation of
delay. Law on the subject is very clear that each and
every day’s delay is to be satisfactorily explained.
Reference in this regard can be made to Rehmat Din and
others v. Mirza Nasir Abbas (2007 SCMR 1560), M/s.
Nida-e-Millat, Lahore v. Commissioner of Income Tax
Zone I, Lahore (2008 SCMR 284), Food Department
Gujranwala v. Ghulam Farid Awan (2010 SCMR
1899), WORLDCALL TELECOM LIMITED v. Pakistan
Telecommunication Authority through Chairman (2011
SCMR 959), Qaiser Mushtaq Ahmad v. Controller of
Examinations (PLD 2011 Supreme Court 174), Lal
Khan v. Muhammad Yousaf (PLD 2011 Supreme
Court 657), and LANVIN TRADERS, Karachi v.
Presiding Officer Banking Court No.II, Karachi (2013
SCMR 1419).
12. In view of above, instant Reference Application,
is not maintainable being barred by time and in view of
findings given hereinabove, it is decided against the
Applicant.
13. Office shall send a copy of this order under seal of
the Court to learned Appellate Tribunal as per Section
67A(4) of the Punjab Sales Tax on Services Act, 2012.
(Muzamil Akhtar Shabir) (Jawad Hassan)
Judge Judge
Manzoor
