' This application is moved by the registered person (appellant in main appeal) for rectification of order dated 8-11-2010 in S.T.A. No,270/LB/2009 passed by this Tribunal. Operative part of the order is reproduced:-- "It is undisputed legal position that limitation of five years was inserted in subsection (4) to section 11 by Finance Act of 2008 and was effective from the 1st July, 2008. On facts it is not disputed that the show-cause notice was issued on 25-7-2007 and Order-in-Original was passed on 8-10-2007.
Meaning thereby the action taken through the show-cause notice was completed well before the insertion of limitation in section 11 of the Sales Tax Act. We have no hesitation to hold that the limitation provided in subsection (4) to section 11 cannot be applied to the case in hand. After this discussion, the only controversy remains whether the charges leveled against the Registered Person fell under section 36 or under section 11. The first portion of the reproduced part of the Collector (Appeals) order shows that the charge was of non-filing of return which apparently falls within subsection (I) to section 11 whereas latter portion of the impugned order did not show, against which charge recovery was held as barred by time, therefore, it could not be ascertained whether the charges fell under section 36 or section 11. It is also observed that the show-cause notice carries allegation of concealment or fraud which fall under section 36. Under the circumstances we deem it appropriate to set aside the impugned part of the order by Collector (Appeals) and remand the case back to Collector (Appeals) with direction that a speaking order be passed by giving findings as to whether the charges held to be hit by limitation fell under section 36 or section 11."
2. Main ground urged by learned counsel for applicant is that the order is against ratio settled by honourable Sindh High Court in its judgment reported as 2010 PTD 251. DR has opposed the application contending that this Tribunal has no jurisdiction to rectify its order passed in exercise of jurisdiction under section 46 of the Sales Tax Act read with sections 131 and 132 of the Income Tax Ordinance, 2001. Learned counsel for the applicant submits, in rebuttal, that Tribunal has inherent jurisdiction to rectify its order under section 151 of C.P.C. Read with section 132 of the Income Tax Ordinance, 2001.
3. After hearing both the part, in our view the question of jurisdiction to rectify an order passed while exercising jurisdiction under section 46 of the Sales Tax Act is of only important but is of first impression. Examination of the relevant provisions of Sales Tax Act, 1990 and Income Tax Ordinance, 20' 1, as amended by Finance Act, 2009, are important. Before amendments brought in different taxing statutes by Finance Act, 2009, the provisions of section 46 of the Sales Tax Act used to recognize the Customs Excise and Sales Tax Tribunal as Appellate Tribunal. Section 2(1) f the Sales Tax Act, 1990 was amended by the Finance Act, 2009 and Appellate Tribunal was defined as Appellate Tribunal Inland Revenue established under section 130 of the Income Tax Ordinance, 2001.
Corresponding change was also made in section 46 of the same Act and following subsection (2) was inserted in the section 46. Subsection (2) of the section 46 is reproduced:- "(2) The Appellate Tribunal may admit, hear and dispose of the appeal as per procedure laid down in sections 131 and 132 of the Income Tax Ordinance 2001(XLIX of 2001), and rules made thereunder."
4. This subsection empowers this Tribunal to admit, hear and dispose of the appeals (filed under section 46 of the Sales Tax Act, 1990) as per procedure laid down in sections 131 and 132 of the Income Tax Ordinance, 2001 and Rules made thereunder. Sections 131 and 132 of Income Tax Ordinance, 2001 (as amended by Finance Act, 2009) are also reproduced: -- "131. Appeal to the Appellate Tribunal.---(1) Where the taxpayer or Commissioner objects to an order passed by the Commissioner (Appeals), the taxpayer or Commissioner may appeal to the Appellate Tribunal against such order.
(2) An appeal under subsection (1) shall be-
(a) in the prescribed form;
(b) verified in the prescribed manner;
(c) accompanies, except in case of an appeal preferred by the Commissioner by the prescribed fee specified in subsection (3); and
(d) preferred to the Appellate Tribunal within sixty days of the date of service of order of the Commissioner (Appeals) on the taxpayer or the Commissioner, as the case may be.
(3) The prescribed fee shall be 'two' thousand rupees.
(4) The Appellate Tribunal may, upon application in writing, admit an appeal after the expiration of the period specified in clause (d) of subsection (2) if it is satisfied that the person appealing was prevented by sufficient cause from filing the appeal within that period.
(5) Notwithstanding that an appeal has been filed under this section, tax shall, unless recovery thereof has been stayed by the Appellate Tribunal, be payable in accordance with the assessment made in the case: ' Provided that where recovery of tax has been stayed by the Appellate Tribunal by an order, such order shall cease to have effect on the expiration of a period of three months following the date on which it is made, unless the appeal is decided, or such order be withdrawn by the Appellate Tribunal earlier: ' Provided further that the Appellate Tribunal shall not make an order which has the effect of staying the recovery of tax beyond the period of six months in aggregate: ' Provided further that the Appellate Tribunal may stay the recovery of the tax on filing the appeal which order will remain operative for thirty days and during which period a notice shall be issued to the respondent and after hearing the parties, order may be confirmed or varied as the Tribunal deems fit but stay order shall in no case remain operative for more than one hundred and eighty days.
132. Disposal of appeals by the Appellate Tribunal.---(1) The Appellate Tribunal may, before disposing of an appeal, call for such particulars as it may require in respect of the matters arising on the appeal or cause further enquiry to be made by the Commissioner.
(2) The Appellate Tribunal shall afford an opportunity of being heard to the parties to the appeal and, in case of default by any of the party on the date of hearing, the Tribunal may if it deems fit, dismiss the appeal in default, or may proceed ex parte to decide the appeal on the basis of the available record.
(2A) The Appellate Tribunal shall decide the appeal within six month of its filing.
(3) Where the appeal relates to an assessment order, the Appellate Tribunal may, without prejudice to the powers specified in subsection (2), make an order to---
(a) affirm, modify or annul the assessment order; or
(b) remand the case to the Commissioner or the Commissioner (Appeals) for making such enquiry or taking such action as the Tribunal may direct.
(4) The Appellate Tribunal shall not increase the amount of any assessment or penalty or decrease the amount of any refund unless the taxpayer has been given a reasonable opportunity of showing cause against such increase or decrease, as the case may be.
(5) Where, as the result of an appeal, any change is made in the assessment of an association of persons or a new assessment of an association of persons is ordered to be made, the Appellate Tribunal may authorize the Commissioner to amend accordingly any assessment order made on a member of the association and the time limit in subsection (2) of section 122 shall not apply to the making of such amended assessment.
(6) Where the appeal relates to a decision other than in respect of an assessment, the Appellate Tribunal may make an order to affirm, vary or annul the decision, and issue such consequential directions as the case may require.
(7) The Appellate Tribunal shall communicate its order to the taxpayer and the Commissioner.
(10) Save as provided in section 133, the decision of the Appellate Tribunal on an appeal shall be final.
5. Perusal of the provisions reproduced supra leads to the conclusion that appeals filed under section 46 of the Sales Tax Act, 1990 shall be decided by this Tribunal under the powers and procedure given in sections 131 and 132 of the Income Tax Ordinance, 2001. No power of review or rectification of its own judgment/order is given in these sections.
6. To arrive at a just conclusion on the question of jurisdiction under discussion it would also be appropriate to examine the provisions of jurisdiction under section 46 of the Sales Tax Act as it was before amendment through Finance Act, 2009, the same is reproduced hereunder:-- "46. Appeals to Appellate Tribunal.---Any person including an officer of Sales Tax not below the rank of an Additional Collector, aggrieved by any order passed by-
(a) the Collector (Appeals) under section 45B,
(b) the Collector through adjudication or under any of the provisions of this Act or rules made thereunder,
(c) the Board under section 45A, may, within sixty days of the receipt of such decision or order, prefer appeal to the Appellate Tribunal."
Jurisdiction under section 46 of the Sales Tax Act, 1990, before its amendment by Finance Act, 2009, was with Customs, Excise and Sales Tax Tribunal constituted under section 194 of the Customs Act, 1969. Procedure/powers for deciding such appeals were provided under sections 194-A, 194-B and 194-C of the Customs Act, 1969. Under subsection (2) of section 194-B of the Customs Act, 1969, the erstwhile Tribunal had jurisdiction to rectify any mistake apparent from record, in any order passed by the Tribunal. Subsection (2) of section 194-B is reproduced hereunder:-- "194-B. Orders of Appellate Tribunal.---(2) The appellate Tribunal may, at any time within one year from the date of order, with a view to rectifying any mistake apparent from the record, amend any order passed by it, under subsection (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal: ' Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this subsection, unless the Appellate Tribunal has given notice to the party of its intention to do so and has allowed a reasonable opportunity of being heard."
7. Under subsection (1) of section 221 of the Income Tax Ordinance, 2001, this Tribunal is empowered to rectify any mistake apparent from record in any order passed by it. Subsection (1) of section 221 is reproduced: -- "221. Rectification of mistake.---(1) The Commissioner, the Commissioner (Appeals) or the Appellate Tribunal may, by an order in writing, amend any order passed by him to rectify any mistake apparent from the record on his or its own motion or any mistake brought to his or its notice by a taxpayer or, in the case of the Commissioner (Appeals) or the Appellate Tribunal, the Commissioner."
8. Collective reading of the provisions reproduced above would clarify the legal position that after insertion of subsection (2) in section 46 of the Sales Tax Act by Finance Act, 2009, jurisdiction previously provided under section 194-B(2) of the Customs Act, 1969 is no more available. As Section 221 of the Income Tax Ordinance, 2001 is not mentioned in subsection (2) of section 46 of the Sales Tax Act, therefore, the powers of rectification available under this section can also not be invoked while exercising jurisdiction under section 46 of the Sales Tax Act, 1990. Provisions of the section 221 can only be invoked for appeals filed under the provisions of Income Tax Ordinance, 2001. It is established law that jurisdiction of review/rectification can only be given by statute.
Therefore, argument of the learned (counsel) for applicant that this Tribunal has inherent power to rectify its own judgment has no force.
9. Since this Tribunal has no jurisdiction to rectify its own order passed in exercise of its jurisdiction under section 46 of the Sales Tax Act, therefore, application is dismissed. It is, however, observed that this Tribunal, in its order (sought to be rectified), has remanded the case to Commissioner (Appeals) with directions. If findings on a legal proposition, by this Tribunal are found in conflict with the findings of any superior court, the Commissioner (Appeals) is obviously bound to follow the judgment by Superior Court.
' Disposed of.