MUNIB AKHT AR, J. This appeal is filed against judgment of the learned High Court, whereby the appellant's tax reference against the decision of the learned Appellate Tribunal was dismissed. The matter arises under the Sales Tax Act, 1990 ("Act").
2. The appellant was issued a show-cause notice, dated 13.06.2005, by the concerned Additional Collector under section 36 of the Act, in respect of certain amounts of sales tax Allegedly payable for the period July 2003 to June 2004. The merits of the case need not be set out for purposes of deciding the present appeal. Section 36 (since omitted) underwent a number of change s while it was on the statute book. For purposes of this appeal, we are concerned only with subsection (3) thereof, which provided in material part at the relevant time as follows: "(3) The officer of Sales Tax empowered in this behalf shall, after considering the objections of the person served with a notice to show cause under subsection (1) or subsection (2), determine the amount of tax or charge payable by him and such person shall pay the amount so determined.
Provided that order under this section shall be made within ninety days of issuance of show cause notice or within such extended period as the Collector may, for reasons to be recorded in writing, fix, provided that such extended period shall in no case exceed ninety days: An order-in-original was ultimately made by the Additional Collector against the appellant on 21.10.2005. The order specifically noted, in para 3, that "the Collector ... was pleased to grant extension of ninety days in terms [of] section 36 of the Act".
3. The appellant preferred departmental appeals, and ultimately a tax reference, but lost at each stage. One ground expressly taken was that the order-in-orig inal was time barred. The learned High Court, in para 4 of the impugned judgment, noted the questions of law that required consideration, of which the third was specifically in respect of the issue of limitation. This question was taken up first, and answered against the appellant. It suffices for present purposes to note that in para 14 of the judgment, it was specifically noted that the first proviso to subsection (3) of section 36 required that the Collector give reasons in writing as to why an extension was being given. It is clear that the learned High Court regarded this duty as mandatory .
4. The appellant sought leave to appeal in this Court against the judgment of the High Court. By that time a great many matters were already pending, in which leave to appeal had been granted, raising various issues as regards the proper interpretation and application of section 36(3), and also the corresponding provision in section 11 of the Act. Leave to appeal was also granted to the appellant vide order dated 09.08.2010.
5. All of the appeals as aforesaid were ultimately taken up and heard together , being disposed of by judgment reported as Collector of Sales Tax, Gujranwala v. Super Asia Mohammad Din and Sons and others 2017 SCMR 1427 (herein after "Super Asia "). A short order had been made at the conclusion of the hearing, which provided as follows (pg. 1444): "For the reasons to be recorded later and without in any manner limiting our jurisdic tion to appropriately enlarge the scope of the detailed judgment, we hold that the provisions of section 11 and the erstwhile Section 36 of the Sales Tax Act, 1990 (the Act) are mandatory in nature. The Collector/Commissioner has the power to extend the time within which an order under either of the Sections supra is to be passed; besides, such time can also be extended in a particular case or class of cases by the Federal Board of Revenue (or the Commissioner if empowered by the said Board) as per the provisions of section 74 of the Act. In the light of the above, all these petitions (except Civil Appeals Nos.733/2010 and 1507/2006) are dismissed on the above question of law .
C.As.733/2010 AND 1507/2016 Due to their peculiar facts, these cases are separated from the aforementioned cases and are to be relisted."
It will be seen that the present appeal was separated from the connected bunch, to be decided subsequently . The appeal was listed on 13.11.2018, when a request was made for constitution of a larger Bench. It is in such circumstances that the appeal came before us.
6. Learned counsel for the appellant took a number of points, of which only one need be noted. Referring to para 7 of the judgment in Super Asia (pg. 1438), learned counsel submitted that it was specifically held therein, with reference to the first proviso to subsection (3), that the "Collector could not extend the time according to his own choice and whim, as a matter of course, routine or right, without any limit or constraint; he could only do so by applying his mind and after recording reasons for such extension in writing". With reference to para 11 of the judgment (pp. 1439-40) learned counsel accepted that if the question were only the dates of the issuance of the show cause notice and the order-in-origi nal (being 13.06.2005 and 21.10.2005 respectively) then the order was within time since, as noted, the Additional Collector had expressly stated that the Collector had given an extension.
However , learned counsel submitted, when the departmental nothings with regard to the extension were examined it was clear that no reasons as contemplated by law had been given. Learned counsel submitted that the request was made by the Additional Collector in the following terms: "7. Kind attention is invited to show caus e notice at page 6/C issued to M/s. Abbasi Enterprises, Haripur for short payment of sales tax on account of charges mentioned therein. The initial period of 90 days as envisaged under section 36 of the Sales Tax Act, 1990 has expired on 12.09.2005. However , the Collector is competent to grant extension for another period of 90 days.
8. In order to avoid any legal complication at a subsequent stage it is requested that extension as provided under the aforesaid provisions of law may be granted."
The extension granted by the Collector was as follows: "9. Extension allowed. In future pl. make out a case for extension giving solid reasons for delay . Meanwhile all the adjudicating of ficers be directed to stick to the time frame provided in law ."
Learned counsel submitted that a bare perusal of the record showed that no reasons had at all existed for the grant of the extension. The Collector had acted in a mechanical and routine manner , without proper application of mind.
This was a clear violation of the law as laid down in Super Asia. Since the purported extension of time was invalid, the order-in-original was made beyond time and ought to have been quashed. It was prayed accordingly .
7. Learned counsel for the Department submitted that the appeal ought to be dismissed. It was contended that the point now taken had not been before the forums below including the High Court, and could not therefore be considered in this appeal.. It was also submitted that the Collector had properly exercised the discretion vested in him by the first proviso to subsection (3) and that therefore the order-in-original was validly made within the stipulated period, all within the contemplation of law as laid down in Super Asia.
8. After having heard learned counsel as above, and considered the record, we were of the view that the appeal ought to be allowed, and did so by means of a short order announced in Court. As noted above, the matter relating to the giving of reasons by the Collector had been considered by the learned High Court in the impugned judgment, in the context of the question of law proposed by the appellant as arising from the order of the learned Appellate Tribunal. Therefore, with respect, it canno t be said that the issue was raised here for the first time. As regards the merits of the point, it is clear that the order of extension made by the Collector was contrary to law, as explicated by this Court in para 7 of the judgment in Super Asia. Indeed, in cautioning his officers to make out a proper case for extension in the future by "giving solid reasons for delay" the Collector had very obviously taken the view that no such reasons existed in the actual case before him. In other words, in the appellant's case, the extension was granted "as a matter of course, routine or right" in direct contradiction of the law laid down by this Court. We may note that learned counsel for the Department had also sought to argue that the order of extension was made on 24.09.2010 whereas the judgment in Super Asia was given on 31.03.2017 and therefore anything said therein ought not to apply to the former . With respect, we are quite unable to agree. The law declared by this Court as to the proper interpretation and application of the first proviso to subsection (3) applied fully to the order of extension under consideration.
9. Since the Collector's order was invalid and inoperative in law, it followed that there had been no lawful extension of time, which meant that the order-in- original ought to have been made by the Additional Collector within ninety days of 13.06.2005, i.e., by 12.09.2005. Since it was admittedly made beyond that date it was invalid, and non est in law. It ought therefore to have been quashed and the forums of appeal, including the High Court in tax reference, erred materially in failing to do so.
10. For the foregoing reasons the appeal was allowed by means of a short order , which was in the following terms: "For reasons to be recorded later , this appeal is allowed."
11. Accordingly , the impugned judgment of the High Court is set aside, as are the decisions of the departmental forums below . The orderin-original dated 21.10.2005 stands quashed. There will be no order as to costs.