Through instant Reference Application under Section 47 of the Sales Tax Act, 1990 ("the Act of 1990"), following questions of law, asserted to have arisen out of impugned order dated 06.05.2015, passed by learned Appellate Tribunal Inland Revenue, Lahore Bench, Lahore ("Appellate Tribunal"), have been pressed and argued for our opinion:-
1. Whether the learned Appellate Tribunal IR has failed to appreciate that there is no bar under the law to pass an order-under Section 11(3) of the Sales Tax Act, 1990 if the audit of the registered person was conducted earlier?
2. Whether the learned Appellate Tribunal IR was justified to hold that post refund audit initiated by the competent authority in pursuance of Rules 36 and 38 of the Sales Tax Rules, 2006 read with Sections 3, 6, 7, 8, 10, 22, 23, 26 and 73 of the Act, was illegal?
3. Whether the order passed by the learned Appellate Tribunal IR is consistent with the relevant provisions of the Sales Tax Rules, 2006 whereas double jeopardy of tax is not involved in order-in- original, as the audit observations/tax amounts involved are different from the observations/tax amounts previously pointed out in the audit conducted under Section 38B of the Act?
2. Record shows that a show-cause notice was issued to the taxpayer for alleged violation of certain provisions of the Sales Tax Act, 1990 read with SRO 283(I)/2011 dated 01.04.2011 regarding input tax adjustment, which culminated in passing of order-in-original dated 10.03.2014, which was upheld by Commissioner (Appeals) vide order dated 24.11.2014. Taxpayer filed second appeal before learned Appellate Tribunal, which was allowed by learned Judicial Member vide order dated 06.05.2015, however, learned Accountant Member while disagreeing with the findings of his counterpart, proceeded to refer the matter to the Referee Member after framing certain questions to be decided by the latter. Learned Referee Member, vide order dated 02.11.2015, agreed with the opinion of Judicial Member.
3. Learned Legal Advisor for applicant-department, at the very outset, was asked to show as to whether any question of law is arising out of the impugned order and whether findings of facts, returned by learned Appellate Tribunal, can be reviewed while exercising the jurisdiction prescribed. Learned counsel could not convince us regarding any attending legal issue.
4. The impugned order shows that learned Appellate Tribunal observed that the no such discrepancy as spelt out in the show-cause notice had been confronted in the audit proceedings earlier conducted for the tax periods November, 2011 to March, 2012; and that refund had been sanctioned by applicant-department after due verification of record, thus, respondent is being subjected to double jeopardy of tax, which is untenable.
5. The above findings of facts given by learned Appellate Tribunal, are not open to further examination by this Court as the same have not been shown to be either perverse or against the record. "It has been time and again held by the Hon'ble Superior Courts that this Court cannot entertain any question on a finding of fact. It is, therefore, clear that reference to the High Court against a judgment or order of the Appellate Tribunal can only be filed on a question of law.
Reliance is placed upon Messrs F.M.Y Industries Ltd. v. Deputy Commissioner Income Tax (2014 SCMR 907) and Pakistan Match Industries (Pvt.) Ltd. and others v. Assistant Collector, Sales Tax and Central Excise Mardan and others (2019 SCMR 906).
6. Since the decision by learned Appellate Tribunal is based on findings of facts, we decline to exercise our jurisdiction.
This Reference Application is decided against applicant-department.
7. 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.