MUHAMMAD SAJID MEHMOOD SETHI, J. This consolidated 'order shall decide instant Reference Application under Section 47 of the Sales Tax Act, 1990 ("the Act of 1990"), alongwith following connected cases, as common questions of law and facts are involved in these cases:-
1. STR No. 173 of 2016 titled Commissioner Inland Revenue v . M/s. Sui Northern Gas Pipelines Ltd .
2. STR No. 174 of 2016 title Commissioner Inland Revenue v . M/s. Sui Northern Gas Pipelines Ltd.
3. STR No. 175 of 2016 titled Commissioner Inland Revenue v . M/s. Sui Northern Gas Pipelines Ltd .
4. ETR No. 02 of 2016 titled Commissioner Inland Revenue v . M/s. Sui Northern Gas Pipelines Ltd .
2. The following question of law, asserted to have arisen out of the impugned conso lidated order dated 06.05.2015, passed by learned Appellate Tribunal Inland Revenue, Lahore Bench, Lahore ("Appellate Tribunal"), has been pressed and argued for our opinion:- "Whether the learned Tribunal was justifie d in holding that sales tax is not chargeable on receipts against deferred credit in the form of customer contribution, Government grants and advances from Government agencies to complete the future projects for supply of gas, whereas the respondent has claimed and adjusted input tax on the materials used to complete such projects and thereby violated the provisions of Section 2(14), 2(20), 2(33), 2(35), 2(44), 2(46), 3, 6, 7, 8, 22, 23 & 26 of the Act read with Rule 45 of Chapter VII of the Sales Tax Special Procedure Rules, 2006?"
3. Brief facts of the case are that during scrutiny of record, it was observed by applicant-department that respondent-taxpayer , claimed and adjusted input tax amounting to Rs. 5,360,13 8/-. A Show-Cause Notice was issued to respondent-taxpayer , which culminated in passing of Order-in-Original dated 12.11.2009. Feeling aggrieved, respondent-taxpayer challenged the said order in appeal before CIR (Appeals), which was disposed of vide order dated 30.09.2010. Feeling dissatisfied, applicant-department as well as respondent-taxpayer filed appeals before learned Appellate Tribunal, whereby , vide common order dated 06.10.2015. the cross-appeals filed by the parties were disposed of in the manner that order passed by learned CIR (Appeals) was maintained and upheld. The applicant-department has assailed aforesaid order through instant Reference Application.
4. Learned counsel for applicant-department, at the very outset, were confronted with the fact that no question of law is arising Out of impugned Appellate Tribunal's order , which is even otherwise based on findings of facts.
However , despite effort, they could not show that any question of law is arising out of impugned order and findings arrived at by learned Appellate Tribunal are not of facts.
5. On the other hand, learned counsel for respondent-taxpayer defend the impugned order and submit that applicant-department has failed to point out any illegality or legal infirmity therein.
6. Arguments heard. Available record perused.
7. Perusal of record reveals that learned Appellate Tribunal, after appreciating the 'available record, has endorsed the findings of CIR (Appeals), who has decided the issue on the basis of facts that there is no supply against Government grants and consumer contributions, therefore, same is not liable to sales tax. The relevant observations of CIR(A) are as under-- I have considered arguments on both sides and I am of the view that the appellant's viewpoint regarding development of infrastructure from government grants is entirely valid and legal. No gas is subsequently supplied to the government against the amount so received. This is for all practical purpos es at par with loan from a bank.
Regarding input tax adjustment, I am of the view that input tax credit is available to appellant under Sections 7 & 8 of the Act which has nothing to do with the receipt of money from government or from a bank. If argument of any learned Collector (Appeals) in case of WAPDA is accepted, then all loans obtained by registered persons, will become liable to tax as input tax will always be claimed on purchases made from loan amounts. I, therefore, find myself in respectful disagreement with the Collector (Appeals) who decided the case of W APDA.
Now I come to the issue of consumer contributions. The infrastructure built from amounts received from consumers remains the property of SNGPL therefore, cannot be deemed to have been supplied. Secondly , whenever the gas is supplied, it is billed and amount is received accordingly and is not adjusted against the amount of consumer contributions. The concept of time of supply is directly linked with the concept of goods and receipt of consideration therefore which may be in advance. In the instant case, infrastructure is not to be supplied. Gas is to be supplied which is separately .billed and amount paid. Tax is also accordingly recovered. In any case, infrastructure remains the property of SNGPL. The Order-in-Original on this account is also not sustainable and is accordingly annulled."
8. Needless to say that the concurrent findings of facts record by two appellate fora, unless found to be either perverse or contrary to record, cannot be interfered with by the High Court, while examining proposed questions of law. Scope of reference jurisdiction is restricted only to the extent of examining questions of law arising from order passed by learned Appellate Tribunal and not to decide questions of facts, or for determining disputed facts.
However , only substantial legal questions can be examined, which may arise from an order passed by the Appellate Tribunal, whereas questions which require no interpretation of any provision of law, rules or regulations, or its application on undisputed facts of a case, do not constitute a question of law to be decided by this Court under the aforesaid provisions of law. Reference is made to Messrs F.M.Y. Industries Ltd. v. Deputy Commissioner Income Tax (2014 SCMR 907), Commissioner Inland Revenue, Zone- I v. Messrs Industrial Chemicals (Pvt.) Ltd (2017 PTD 756), Commissioner of Income Tax v. Ghee Corporation of Pakistan (Pvt.)
Ltd (2017 PTD 1167), Commissioner Inland Revenue v. Messrs Adeel Brothers (2017 PTD 1579 ) and Commissioner Inland Revenue, Zone-I I, v. Al-Hamad International Container Terminal (Pvt.) Ltd. (2017 PTD 2212 ).
9. Since the decision by learned Appellate Tribunal is based on findings of facts, recorded by CIR (Appeals), therefore, we decline to exercise advisory jurisdiction: This Reference Application, alongwith connected Reference Applications, is decided against applicant-department.
10. Office shall send a copy of this order under seal of the Court to learned Appellate Tribunal as per Section 47(5) of the Act of 1990.