Through this Reference Application under Section 67A of the Punjab Sales Tax on Services Act, 2012 (the "Act") the order dated 16.10.2019 (the "impugned order ), passed by learned Appellate Tribuna l Punjab Revenue Authority , Lahore has been impugned by the Applicant, whereby the order dated 11.02.2019, passed by the Commissioner (Appeals) PRA, reducing the assessed amount under Section 49 of the Act 2012 was upheld.
2. Following questions of law stated to have arisen out of impugned order dated 16.10.2019, have been proposed for determination by this Court:- "Whether on the facts and under the circu mstances of the case the learned Tribunal was justified in upholding the addition made in advertisement expenses confirming the Commissioner (Appeals) stance that such expenses in the nature of printing of promotional material and payment of rent for stall at expo trade center are covered under Serial No.12 of the Second Schedule to the Act? b) Whether on the facts and under the circumstances of this case, the learned Tribunal was justified in upholding the addition made in Carriage Out Charges confirming the Commissioner (Appeal s) stance that Circular No.2 has no relevance in the instant case as no Addas were notified by the Authority as stated therein; ignoring the fact that same circular granting general exemption had been extended from time to time?.
C) Whether on the facts and under the circumstances of this case, the learned Tribunal was justified in burdening the appellant with withholding tax under the head of Carriage out charges in disre gard to Section 52(1) of the Act which speaks of the person liable to pay such amount of tax or charge as has been not levied or short levied; ignoring that withholding agent cannot be saddled with liability without first confronting the service provider?
3. Facts of this Reference are that M/s Prix Pharmaceutical (Pvt) Ltd. (the Applicant) registered under Rule 2(f) of the Punjab Sales Tax on Services (withholding) Rules, 2015 (the "Rules "), as Withholding Agent, failed to withhold and deposit the due amounts of the Sales Tax, thereupon, a show cause notice was issued to it, the reply of which was found unsatisfactory by the department being not supported by the invoices/documents resultantly amounts of Rs.2,547,908/- and Rs.127,395/- were determined qua sales tax and surcharge under Sections 52 and 48 of the Act by the Commissioner Enforcement-III, vide order dated 07.08.2018. On Appeal by the Applicant-company aforesaid order was modified reducing the assessed amount to Rs.855,877/- by the Commissioner (Appeals) PRA, vide order dated 11.02.2019, which was upheld by the learned Appellate Tribunal Punjab Revenue Authority Lahore, vide order dated 16.10.2019 being impugned through this Reference Application.
4. It is contended by learned counsel for the Applicant company that along with this Reference, he has also filed an Application (C.M.No.2 of 2021) for condonation of delay on the ground that the impugned order dated 16.10.2019, passed by the learned Appellate Tribunal Punjab Revenue Authority Lahore was not served upon the Applicant in due course of time rather on submitting an Application to the authority concerned, it was made available to the Applicant on 14.07.2021 and due to very this reason it could not file this Reference Application in time.
5. Conversely , Sardar Qasim Hassan Khan, learned Legal Advisor appearing on behalf of the Respondent department, at the outset, objects to the maintainability of this Reference Application. States that on failing to perform its legal obligations being a Withholding Agent, vide orders dated 07.08.2018, passed by learned Additional Commissioner Enforcement-III, it was held to be failed to withhold and pay Punjab Sales Tax in term of Section 14 of the Act besides to deposit the determ ined amount along with surcharge under relevant provisions of the Act; which order , on Appeal, was modified by the Commissioner Appeals PRA vide order dated 11.02.2019; and the latter/order was upheld by the learned Appellate Tribunal Punjab Revenue Authority , Lahore, vide order dated 16.10.2019. Adds that the certified copy of the order dated 16.10.2019 was applied by the Applicant on 14.07.2021 which was delivered to it on the same day. Maintains that on calculation it will crystal clear , the Reference is very near to two years' time barred. Besides, Applicant' s stance that it could not file this Reference Application in time, as it received certified copy of the impugned order on 14.07.2021, let the certification seal affixed by the copy issuing agency at the back of the last page of the impugned order be perused, which reveals that the certified copy was applied on 14.07.2021 and was also received on the same day. Further maintains that neither this Reference Application nor during the arguments learned counsel for the Applicant has been able to tender a plausible reason before the Court why such a long time has been consumed to have a certified copy of the impugned order . Placing reliance on Commissioner of Income Tax/W ealth Tax, Legal Division, Multan versus Lady Dr. Musarrat Mumtaz, C/o D.H.Q. Hospital D. G. Khan (2011 PTD 2358 ) submits that Limitation once started running could not be stopped or suspended by any subsequent event. Provision of the Limitation Act, 1908 would be construed strictly and applied without having any regard to equitable considerations. Provision of Section 3 of the Limitation Act being mandatory in nature could be applied even though limitation was not set up in defence. Prays for dismissal of this Reference Application being barred by time i.e. 691 days . Maintains that as far stance of the Applicant that the impugned order has not been communicated to it does not appeal to mind, as while concluding the impugned order dated 16.10.2019, the learned Appellate Tribunal wrote, "The Registrar of the Tribunal is directed to communicate this judgment to all concerned immediately ..." Further adds that for the sake of argument, if stance of the Applicant may be accede d to, yet the fact remains that; if one especially a businessman/company has approached a court of justice regarding involvement of one's finance with the request of reduction in sales tax and surcharge thereupon and should not have an eye on outcome that too for such a long time is not acceptable so far as my little experience and observation concerned dealing such pieces of matter . Lastly seeks dismissal of this Reference Application being badly time barred, as mentioned above.
6. Learned counsel for the parties have been heard and the record perused.
7. As this Reference Application has been filed under Section 67A of the Act and 67(7) of which reads as under:- "Section 5 of the Limitation Act 1908 (IX of 1908) shall apply to a Reference under this Section."
8. On confrontation by this Court, how this Reference Application is maintainable especially in view of the objection raised by learned counsel for the Respondent that it is barred by 691 days, the learned counsel reiterates his stance taken above adding that he has filed the Application for condonation of delay and prayed for its acceptance and determination of questions of law proposed above.
9. The impugned order was passed by learned Appellate Tribunal on 16.10.2019. It has neither been contended in the application for condonation of delay that the order was reserved or was kept in wait for orders or any effort was made to ascertain as to whether the order has been passed by learned Appellate Tribunal, nor any document has been produced by the Applicant to show that the copy of impugned order was not sent to it.
10. Elucidating the question of limitation in a Custom Reference bearing No. 42 of 2013 titled Collector of Customs and others versus M/s Zahoor Sons and others, the learned Division Bench of this Court enlightening its applicability has comprehensively discussed it and observed that law on the subject is very clear that presumption of correctness is attached to the judicial proceedings in terms of Article 129 (e) of the Qanun-e-Shahadat Order , 1984, and in order to displace the same, some evidence is required to be produced by the Applicant along with Application for condonation so as to make out a case for condonation of delay within the contemplation of provisions of Section 196 (8) of the Act of 1969 read with Section 5 of the Limitation Act, 1908. Further that it is well settled that delay in filing proceedings could not be condoned lightly unless it was shown that there were sufficient reasons causing the delay . Law of limitation reduced an effect of extinguishment of a right of party when significant lapses occurred and when no sufficient cause of such lapses, delay or time-barred action was shown by defaulting party , the opposite party was entitled to a right accrued by such lapses. Negligen ce does not constitute sufficient cause to condone delay . Party seeking advantage of Section 5 of Limitation Act, 1908 must satisfy the Court that it had not been negligent and had been pursuing the case with due diligence and care.
11. Summing up our discussion and in view of the objection raised by learned coun sel for the Respondent and also seeking support from the above referred judgments, we hold that this Reference Application filed by the Applicant is vividly time barred and Application for condonation of delay did not disclose any cogent, convincing and justifying reasons for condonation of delay . Law on the subject is very clear that each and every day's delay is to be satisfactorily explained. Reference in this regard can be made to Rehmat Din and others v. Mirza Nasir Abbas (2007 SCMR 1560 ), M/s. Nida-e-Millat, Lahore v. Commissioner of Income Tax Zone I, Lahore (2008 SCMR 284), Food Department Gujranwala v. Ghulam Farid Awan (2010 SCMR 1899 ), WORLDCALL TELECOM LIMITED v. Pakistan Telecommunication Authority through Chairman (2011 SCMR 959), Qaiser Mushtaq Ahmad v. Controller of Examinations (PLD 2011 Supreme Court 174), Lal Khan v. Muhammad Yousaf (PLD 2011 Supreme Court 657), and LANVIN TRADERS, Karachi v. Presiding Officer Banking Court No.II, Karachi ( 2013 SCMR 1419 ).
12. In view of above, instant Reference Application, is not maintainable being barred by time and in view of findings given hereinabove, it is decided against the Applicant.
13. Office shall send a copy of this order under seal of the Court to learned Appellate Tribunal as per Section 67A(4) of the Punjab Sales Tax on Services Act, 2012.