' CH. ANWAAR UL HAQ (JUDICIAL MEMBER).---The titled appeal has been preferred at the instance of taxpayer calling in question the impugned Order-in-Appeal No.634/2013, dated 24-9-2013, passed by the learned CIR (Appeals), Faisalabad.
2. Relevant facts- in brief are that during the course of reconciliation of purchases of the taxpayer with supplies of the supplier units, it was observed that the taxpayer had claimed/adjusted input tax amounting to Rs.3,765,079 which was not reflected in the supplier's supplies. On the basis of this irregularity, the proceedings were initiated under the provisions of section 11(2) of the Sales Tax Act, 1990, and the taxpayer was charged with the violation of sections 2(14), 7, 8, 8A, 22 and 26 of the Sales Tax Act, 1990. A notice was issued wherein the taxpayer was called upon to show cause as to why sales tax amounting to Rs.3,765,079 may not be recovered under section 36(1) along with default surcharge under section 34 and a penalty under section 33 of the Sales Tax Act, 1990. The adjudication proceedings were culminated in passing Order-in-Original No.183/2012 dated 28-8- 2012, wherein the confronted amount of Rs.3.765,079 was ordered to be recovered along with default surcharge under section 34 and penalty under section 33 of the Sales Tax Act, 1990. Being aggrieved of, the taxpayer went in appeal before the learned CIR(A) and assailed the treatment meted out at assessm ent stage. The learned CIR(A) after scrutiny of available record found that the appeal filed before it was time barred as the taxpayer has failed to file the appeal within the statutory time limitation provided in law. Hence, the appeal of the taxpayer was dismissed by the learned CIR(A) as having been filed beyond limitation and badly time barred with the following observations:- "After due consideration, I find that legal provisions of section 45-B of the Sales Tax Act, 1990 are very specific, wherein it is laid down that an appeal against the impugned order lies within 30-days of its receipt before the appellate authority. The appellant failed to provide sufficient cause for not preferring the appeal within the stipulated period. It is a settled principle of interpretation of Statutes that 'where law provides that a thing is to be done in a particular manner, it ought to be done in that manner." [PLD 1999 Lahore 446 M. Saleem Chotia v. Zafar and 4 others]. Since the appeal was not filed within the period prescribed by the Statute it is not a valid appeals in the eye of law and the legality of the order assailed by the appellant cannot be adjudicated by this forum.
Hence, I am of the view that there is no ambiguity in the law regarding filing/preferring of appeal within stipulated time period which has not been followed by the appellant. This being the position the appeal is rejected under section 45-B of the Sales Tax Act, 1990 being time barred by 217-days"
3. The learned AR on behalf of taxpayer assailed the orders of the authorities below as contrary to law and facts of the case. It is submitted by the learned AR that the learned CIR(A) was not justified to dismiss the taxpayer's appeal on the ground that the same is filed beyond the statutory time limit. It is contended by the learned AR that the taxpayer's appeal was well within the time prescribed in law as the same was filed after receipt of impugned order-in-original on 5-10-2013 and appeal was filed on 5-11-2013, hence, the same is within time. It is asserted by the learned AR that the first appellate authority has illegally and unjustifiably reckoned the date of impugned order as service of order and calculated the time from the same while it should have been reckoned from the date of service of order. It is also asserted that the dismissal of appeal without giving specific hearing to the appellant is highly unjustified and illegal. However, he admitted that the taxpayer on 29-5-2013 obtained photo-copy of the assessment order from the file of the department for filing of first appeal, therefore, he was well aware about the issuance of assessm ent order.
4. We have heard the arguments put-forth by the learned AR for the appellant and have carefully gone through the available record. After due consideration, we find that no exception can be taken to the treatment as accorded by the learned CIR(A) which is found to be fair and reasonable in the ambient circumstances of the case. The learned AR on behalf of taxpayer has failed to make out a case before the learned CIR(A) as well as before us that the appeal filed by the taxpayer before the learned CIR(A) is well within the time limitation provided under the law. The impugned order-in- original was admittedly issued on 23-10-2012 and served upon the taxpayer through Leopard Courier Service whereas the appeal before the learned CIR(A) was filed on 27-6-2013, hence, the same is grossly time barred. As per the provisions of section 45B(1) of the Sales Tax Act, 1990, the taxpayer was required to file the appeal before the first appellate authority within 30-days of the receipt of the impugned order which the company had failed to do so. As far as the taxpayer's contention regarding service of impugned order is concerned, we find that Courier Service is a valid service. Although at this stage, the learned AR disputed the service of Order but he admitted that the appellant filed the first appeal after obtaining the photo-copy of the order on 29-5-2013 from the assessm ent record of the department. Further it is to be noted that admittedly no application was moved before the CIR(A) for the purpose of condoning the delay. It is settled law that as far as the limitation is concerned, it does create a right in favour of the other side and if the appeal or proceedings are time barred it becomes the duty of the person who has approached the court at least to submit an application or make an explanation but in the instant case admittedly no such effort was made knowing well by the appellant that the appeal was barred by time.
Reliance may be placed on the judgment of the Hon'ble Supreme Court of Pakistan in re: Messrs Nida-e-Millat, Lahore v. Commissioner, reported as 2007 PTD 1387, relevant part of the said judgment is reproduced:-- "5. It is to be noted that admittedly no application was moved before the Commissioner of Income Tax for the purpose of condoning the delay. Surprisingly for the first time before this Court an application has been filed seeking condonation of delay, relevant para. Therefore is reproduced herein-below:--- "That through the appeal before the Commissioner of Income Tax, was within time and cannot be declared time-barred. Still by way of abundant caution, the petitioner is submitting this application for condonation of delay of alleged one day before the Commissioner of Income Tax (Appeals).
Although an affidavit was filed for explaining all the circumstances and showing that the appeal is within time."
6. Filing of the above application at the stage itself goes to indicate that the appeal filed before the Commissioner of Income Tax was barred by time, therefore, the petitioner had an obligation to make an application before the said forum and at this stage this Court in exercise of jurisdiction under Article 185(3) of the Constitution cannot condone the delay which has occurred in filing of the appeal before the Commissioner. Besides as far as the limitation is concerned, it does create a right in favour of the other side and if the appeal or proceedings are time-barred it becomes the duty of the person who has approached the Court at feast to submit an application or make an explanation but in the instant case admittedly no such effort was made knowing well by the petitioner that the appeal was barred by time. Therefore under these circumstances, we are of the opinion that the High Court has rightly declined relief to the petitioner".
(emphasis supplied)
6. This Tribunal, in the case re: Islamabad Electric Supply Company vide S.T.A. No. 274/IB/13 dated 7- 1-2014, has already taken the same view while rejecting the appeal of the taxpayer on the point of limitation.
7. Under the circumstances, we find no reason to disturb the order passed by the learned CIR(A) which is hereby maintained.
8. For the foregoing reasons, the appeal is accordingly dismissed.