' MUHAMMAD JAWED ZAKARIA, (JUDICIAL MEMBER).- Captioned miscellaneous application for stay has been filed by applicant/ taxpayer in the appeal bearing S.T.A. No, 396/KB/ 2016, lodged on 20.07.2016, which is pending adjudication.
2. Learned A.R. Contended that in the present case department has raised unjustified demand from the taxpayer intentionally ignoring the admitted facts. The learned counsel further argued that recovery notice issued is ultra vires and unconstitutional. The registered person is a license Holder of Customs Clearing Agent since 2009 also registered with Sindh Revenue Board (SRB) providing services and filing monthly returns in the said department regularly and law abiding citizen who never ever evaded any tax. The impugned order is based upon surmises and conjectures having no legal sanctity. Learned A.R. Further contended that order passed by taxation authorities below are unjust and improper and therefore, any coercive action for effecting recovery of assessed amount against the applicant/taxpayer would be equally unjust and improper. The applicant has good prima facie case and balance of probability also tilts in favour of the applicant. He, therefore, submitted that in these circumstances, the applicant is entitled for stay against the forcible recovery till decision of its main appeal which at present is pending adjudication.
3. Learned D.R. On the other hand, strongly opposed the stay application. He contended that the learned DR contended that taxpayer has been assessed in accordance with law and therefore, liable to pay the amount determined as outstanding against the taxpayer. The learned DR prayed for dismissal of stay application.
4. We have considered contentions of the parties. We are astonished to observe that the Taxpayer has already approached the Hon'ble High Court and the Hon'ble High Court of Sindh at Karachi vide order in C.P.D-2743 of 2016 dated 1-06-2016 has already suspended the impugned order and any recovery proceedings on the same were suspended till the next date. The relevant extract from the order of the Hon'ble High Court is reproduced hereunder:- "Request is made on behalf of the learned counsel, who intends to file power on behalf of the Department. Learned counsel for the Petitioner draws attention to his application for interim relief.
Adjourned.
' Till the next date the impugned order and any recovery proceedings on the same are suspended. (emphasis supplied)
5. We are of the considered opinion that the Order of the Hon'ble High Court still holds field. It is settled law and the established practice of the Honourable Court that in such circumstances an interim order granted earlier will remain in force and operative and once a case discharged no specific order is required for extension of the interim/stay order. Reliance is placed by us in the case of Raja Talat Mehmood v. Ismat Ehtisham-ul-Haq reported as 2000 M LD 1755 at page 1759 and 1760 A, the Lahore High Court observed as under:- "The provisions of Order XXXIX, Rule 2-A are not mandatory in nature, rather only provides guideline to the Court not to grant ad interim injunction "ordinarily" exceeding 15 days. However, the Court has power to extent such ad interim order if the defendant has not been served and the failure in this behalf is not attributable to the plaintiff or when the defendant seeks time for defence of the application for injunction. As per this rule, ad interim injunction granted per se would not lapse after the expiry of fifteen days. The only requirement of law is that the Court should extend such injunction, but if the Court does not by any specific order grant the extension of the ad-interim order earlier passed, it would be presumed that the extension has been granted."
6. The Hon'ble Supreme Court of Pakistan while hearing the appeal from this judgment reported as Raja Talat Mahmood v. Ismat Ehtisham-ul-Haq 1999 SCM R 2215 at 2222 A & B affirmed the position and observed as under:-- "In the circumstances, where neither any reply was filed nor any request was made for discharge of the interim injunction/status quo order, the legal position would be that the interim order would continue despite no specific order having been passed extending the order, dated 10-4-1998 granting status quo order. Rule 2-A of Order XXXIX, C.P.C., does not require a specific order for extension of the interim injunction after expiry of 15 days in case defendants seek time for defence of application for injunction... ...In such circumstances, it was not necessary to pass specific orders of extension of the interim status quo order on each date of hearing."
7. In light of the above, it is clear that when the petition was discharged on 1.06.2016 or any subsequent date and no order was passed by the Honorable Court, the interim order passed earlier automatically continued and remains in force. There was no requirement under the law to have the interim order extended. The Tribunal being a subordinate Court to the Hon'ble High is bound to follow the order of the Hon'ble High Court and cannot grant further stay already granted by the Hon'ble IC High Court or further add our observations in the order of the Tribunal.
8. The interim order passed by the Hon'ble High Court in the' aforesaid C.P. No, D-2743 of 2016 was neither time bound nor subject to any conditions. It will, therefore, continue until and unless specifically vacated by the Hon'ble Court. The Judgment of the Supreme in the case of Raja Talat Mehmood (supra) has been followed in Ibrahim Fibers Ltd. v. Collector of Customs (Appraisement)
Karachi 2006 CLC 1574. In view of the foregoing the instant M.A (Stay Application No,192/KB/2016) has been lodged in clear contravention of interim order of Hon'ble High Court dated 01.06.2016. It amounts to wilful defiance. Thus, aforesaid M.A (Stay) application is misconceived and devoid of merit.
9. Now adverting to the plea of the learned counsel regarding fixation of main appeal on out of turn basis. This court may opine that if the appellant desires, the appeal may be heard on out of turn basis, he should approach to the Hon'ble Chairman, ATIR, Headquarters, Islamabad as the powers for fixation of the main appeal out of turn vests on him and seeks order in writing from the Hon'ble Chairman for fixation of the case before any other available bench as this Court has heard this M.A.
(Stay) application.
10. M.A (Stay) application is hereby. Sub missed being misconceived. Order accordingly.