IKRAMULLAH KHAN, J. This single judgment shall dispose of the instant Sale Tax Reference as well as the connected S.T.Rs. Nos.12-P/2019 and 13-P/2019 of the same titled, as all these tax references are the outcome of one and the same order/judgment dated 14.03.2019.
2. Through the instant sale Tax Reference, petitioner has placed the following legal propositions for adjudication by this Court: a. Whether the Tribunal was justified in allowing interim relief in total violation of section 131(5) of the Ordinance, 2001, without allowing any opportunity of hearing to the Commissioner Inland Revenue and? b. Whether the Honourable Tribunal is not legally bound to decide the main appeal within six months as provided in section 132(2A) of the Ordinance, 2001, instead of extending the interim relief time and again? c. Whether the Hon'ble Tribunal is empowered under section 131(5) of the Income Tax Ordinance, 2001, to extend the period of stay beyond the prescribed period of one hundred and eighty days in aggregate? d. Whether , the collection of public revenues could be suspended by Court without noticing the prescribed laws officer? e. Whether , the practice of allowing interim relief in the absence of respondents is in line with the provisions of Income Tax Ordinance, 2001? f. Whether the Tribunal has applied judgment of Islamabad High Court 2016 PTD 1702 in its true spirit, whereas the fact and circumstances of the said judgment are dif ferent and not applicable to the matter in hand? g. Whether , under 1st Proviso to the Section 131(5) of the Ordinance, 2001 the Tribunal was not bound to record reasons in written with specific focus on the particular hardship faced by the respo ndent or the circumstances that could warrant such extension in stay? h. Whether the appellant Tribunal has not erred on law by relying upon the judgment of Hon'ble Islamabad High Court reported as 2016 PTD 1702 and ignoring the express provision of section 131(5) of the Income Tax Ordinance, 2001? i. Whether the appellant Tribunal has not erred in law by not appreciating that second proviso to subsection (5) of the Section 131 of the Income Tax Ordinance, 2001 being procedural in nature is applicable to the already pending case before the Tribunal? j. Whether , the Hon'ble Tribunal has not misinterpreted to provisions of the second proviso to subsection (5) of Section 131 of the Income Tax Ordinance, 2001 by holding, that, the said provisio ns do not apply to pending case whereas the Hon'ble Parliament of Pakistan has not made any such distinction vide the said proviso? k. Whether the Proviso ibid, added vide Finance Act, 2018 is not in continuation/sequel of the First Proviso to subsection (5) of Section 131 of the Income Tax Ordinance, 2001, whereby the Hon'ble Tribunal is empowered to grant stay against recovery of the demand of Tax for not more than one hundred and eight days in aggregate? l. Whether , the second proviso empowers the Commissioner to proceed with recovering the established outstanding demand of tax and expiration of one hundred and eight days of stay and does not empower to the Hon'ble Tribunal to further extend the same? m. Whether , the power of Hon'ble Tribunal to grant stay inherent in the first proviso to subsection (5) of Section 131 of the Income Tax Ordinance, 2001 for not more than one hundred and eight days in aggregate?
3. At the very outset of argument, learned counsel on behalf of respondent, raised preliminary objection over maintainability of the instant Reference, on the ground that interlocutory order in term of Section 47 of the Sales Tax Act, could not be assailed by placing any reference before this Court.
4. We have heard learned counsel for the parties in light of law on the subject.
5. The provisions contained in Section 47 of the Sale Tax reads as: S. 47. Reference to High Court. (1) Within ninety days of the communication of the order of the Appellate Tribunal under subsection (2) of Section 46, the aggrieved person or any officer of (Commissioner), authorized by the (Commissioner) may prefer an application in the prescribed form along with a statement of the case to the High Court, stating any question of law arising out of such order .
(2) The statement to the High Court referred to in subsection (1), shall set out the facts, the determination of the Appellate Tribunal and the question of law , which arises out of the order .
(3) Where, on an application made under subsection (1), the High Court is satisfied that a question of law arises out of the order referred to in subsection (1), may proceed to hear the case.
(4) A reference to the High Court under this section shall be heard by a bench of not less than two judges of the High Court and in respect of the reference, the provisions of section 98 of the Code of Civil Procedure, 1908 (Act V of 1908) shall apply , so far as may be, notwithstanding anything contained in any other law for the time being in force.
(5) The High Court upon hearing a reference under this section shall decide the question of law raised by the reference and deliver judgment thereon specifying the grounds on which such judgment is based and the order of the Tribunal shall stand modified accordingly . The Court shall send a copy of the judgment under the seal of the Court to the Appellate Tribunal.
(6) The cost of any reference to the High Court shall be in the discretion of the Court.
(7) Notwithstanding that a reference has been made to the High Court, the tax shall be payable in accordance with the order of the Appellate Tribunal: Provided that, if the amount of tax is reduced as a result of the judgment in the reference by the High Court, and amount of tax found refundable by the High Court, the High Court may on application [by an Additional [Commissioner] authorized by the [Commissioner] within thirty days of the receipt of the judgment of the High Court that he intends to seek leave to appeal to the Supreme Court, make an order authorizing the [Collector] to postpone the refund until the disposal of the appeal by the Supreme Court.
(8) Where recovery of tax has been stayed by the High Court by an order , such order shall cease to have effect on the expiration of a period of six months following the day on which it is made unless the reference is decided, or such order is withdrawn, by the High Court earlier .
(9) Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to an application made to the High Court under subsection (1).
(10) An application under subsection (1) by a person other than the [Additional [Commissioner] authorized by the] [Commissioner] shall be accompanied by a fee of one hundred rupees.]
(11) Notwithstanding anything contained in any provision of this Act, where any reference or appeal was filed with the approval of [Commissioner] by the officer of lower rank than the [Commissioner], and the reference or appeal is pending before an appellate forum or the Court, such reference or appeal shall always be deemed to have been so filed by the [Commissioner].
6. As the learned Tribunal below has not decided so far any legal issue, in order to be challenged before this Court, however , with consent of both the parties, the same is converted to a writ petition, as the learned Tribunal has no jurisdiction to grant stay in matter of Sale Tax, for indefinite period.
7. For the reasons mentioned hereinabove, this tax reference is converted into writ petition and allowed accordingly in term that respondent No.2/learned appellate Tribunal shall decide the appeal within 30 days.