MUHAMMAD AMEER BHA TTI, J. Refund claimed by the petitioner regarding un-disputed excessive amount, in- advertently deposited, was declined by respondent No.2 vide impugned order dated 06.08.2019 merely on the premise of non-submission of application within time stipulated in this regard; as envisaged by Section 66 of the Sales Tax Act, 1990, which is as under:- "Refund to be claimed within one year.--No refund of tax claimed to have been paid or over paid through inadvertence, error or misconception or refund on account of input adjustment not claimed within the relevant tax period, shall be allowed, unless the claim is made within one year of the date of payment.
Provided that in a case where a registe red person did not deduct input tax within the relevant tax period, the Commissioner may, after satisfying himself that input tax adjustment is due and admissible, allow the registered person to take such adjustment in the tax period as specified by the Commissioner .
Provided further that in a case where the refund has become due on account of any decision or judgment of any officer of Inland Revenue or court or the Tribunal, the period of one year shall be reckoned from the date of judgment or decision of such officer , court or T ribunal.
Provided further that the application or claim filed under this section shall be disposed of within a period not exceeding ninety days from the date of filing of such application or claim.
Provided also that no refund shall be admissible under this section if incidence of tax has been passed directly or indirectly to the consumer".
Suffice it to observe that the petitioner moved first application for refund of excessive amount inadvertently deposited on 23.05.2016. The said application remained pending for want of jurisdiction with the Federal Board of Revenue Counter , however , on the request of the petitioner , the matter was referred to the competent forum which refused its receipt under a false, misconceived and misguided notion of its being barred by time. Consequent whereof, the petitioner 's application for condonation of delay was also declined.
2. The first and foremost contention of the learned counsels for the petitioner is that first application was submitted within the stipulated period, however , the forum chose by the petitioner for refund of amount, albeit being wrong; was wing of the same department which failed to fulfill its legal obligation to either return the application promptly to him after its verification or transmit it to the relevant forum within the same depar tment for its process; hence the negligence committed by the said office could not hamper the cause/claim of the petitioner . Had the application of the petitioner been decided at the earliest; by the incompetent wing initially invoked, as to its maintainability , the petitioner would have sufficient time to approach the relevant competent wing for validation of its claim within the stipulated time. Although the petitioner bonafidely pursued its application before the wrong forum but none of the officer of that wing demonstrated the validity relating of its application before the appropriate wing of the same department. In such eventuality , negligence on the part of one wing of the department not taking prompt action could be termed a reasonable ground for condonation of delay for exercising the power provided under the law.
Therefore, it was a fit case for exercising the jurisdiction but the authority has failed to perform its legal obligation; hence the order impugned is not sustainable/untenable in the eye of law .
3. On the other hand, learned counsel for the respondents contends that the petitioner itself claimed in its application for condonation of delay; being time barred, therefore, subsequent application filed by the petitioner in the year 2017 was rightly rejected on acco unt of limitation, thus the order of the authority is legal and in accordance with law .
4. I have heard learned counsel for the parties and gone through the record.
5. It is manifestly evident from the record and even not controverted by the respon dents that the petitioner moved first application for the refund of excessive amount on 23.05.2016 within the stipulated time to wrong wing of the same department. Had the application been considered and decided by that wing with due promptness, the petitioner would have been in a position to approach the relevant authority for the refund of its undisputed excessive amount, therefore, inaction of the one wing of the same department to keep the application pending so as to let the period stipulated in law for filing the application elapsed/run out; could not be allowed to defeat the right of the petitioner who resorted to the remedy well within time irrespective of the fact that it was before the wrong wing in the same department.
It is established from the record that application was first filed within stipulated time which was entertained/registered with another wing instead of relevant wing but in the same department; hence it cannot be presumed that the petitioner had not approached the respondents? relevant wing within the stipulated time. It was enjoined up such wrong forum of the department to take prompt action either to return application of the petitioner after examining its validity for filing thereof before the appropriate wing or transmit it to relevant wing for its decision, the failure to exercise due diligence by the forum so invoked, the petitioner's application ran out of stipulated time; hence cannot be termed as petitioner's negligence; which was pursuing its application in good faith before wrong wing; as stands establish ed from record in such eventuality , in order to suggest that it was contributory negligence from both side and constitutes a sufficient cause to exercise the power provided under the law to condone the delay .
Reliance is placed on Syed Haji Abdul Wahid & another vs, Syed Sirajuddin (1998 SCMR 2296 ), it was held by apex Court as under:- "Notwithstanding the fact that section 14 of Limitation Act, in terms does not apply to proceedings of an appeal, if the appellant is able to establish that he followed the remedy before a wrong forum in good faith, the Court may condone such delay in filing of the appeal treating it as sufficient cause' under section 5 of the Limitation Act. What would constitute "sufficient cause" in such cases would depend on the facts and circumstances of each case.
Same view was taken in Karachi Electric Supply Corporation Ltd, vs, Lawari and 4 others (PLD 2000 SC 94).
The relevant extract is as under:- "In our view taking all the above facts and circumstances together , a case of suffici ent cause as required in section 5 of the Limitation Act had been made out and the appeal filed by the appellant before the High Court was not liable to be rejected on the ground of limitation".
In Sherin and 4 others vs, Fazal Muhammad and 4 others (1995 SCMR 584) the Hon'ble Supreme Court articulated as under:- "We feel that omission on the part of learned District Judge to take timely action is the major cause of refilling of the appeal by the appellants, in the High Court, out of time. They have been the victim of the act of the Court which furnishes "sufficient cause" under section 5 of the Limitation Act, for condonation of delay . The fact that after receiving the memorandum of appeal from the District Court, sometime was consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequentia l. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court".
Admittedly , the application remained pending with one or the other wing of the same department, therefore, it was neither time barred nor it required any indulgence for obtaining concession of condoning of limitation especially in wake of the fact that when tax is not payable under the law, it can only be termed as an erroneous payment with inadvertence and therefore, the act to decline petitioner 's such claim by the Government Department was utterly unwarranted and absolutely uncalled for .
6. The apex Court in judgment reported as Messrs Pfizer Laboratories Limited vs. Federation of Pakistan and others (PLD 1998 SC 64) while placing reliance upon "Aluminium Corporation of India Ltd. vs. Union of India and others (AIR 1975 SC 2279) declared that the state has no right to retain the excessive amount deposited by the assessee on account of some mistake, therefore, estoppel to claim that amount beyond the limitation cannot be put in place. The Hon'ble Supreme Court held in the supra judgment that where there is no element of unfair act on the part of the person involved and by reason of any inadvertence, error or misco nception, any excessive duty or charge has been levied and deposited the same should be returned on pointation subsequently .
7. In view of above, this petition is accepted , order impugned dated 06.08.2019 is hereby set-aside with a direction to the respondents to return the excessive and undisputed amount inadvertently deposited by the petitioner within a period of 15-days from the presentation of certified copy of judgment of this Court. No order as to costs.