1. ' HAIDER ALI PIRZADA, J.-- These direct reference under section 17(1) of the Sales Tax Act, 1957, have been filed by the Commissioner of Sales Tax for referring the following two questions of law for the opinion of this Court:- "QUESTION No, 1 . Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the notice, dated 27-5-1971 which was, issued under subsection (2) of section 28 was invalid, void, ab initio because it did not allow 35 days time for filing of the return?"
2. "QUESTION No,
2. Whether on the facts and in the circumstances of the case the Appellate Tribunal was right in holding that there a minimum mandatory period of 35 days for filing return required under subsection (2) of section 28 of the Sales Tax Officer must allow for filing return under that provision subsection (2) of section 28 of the Sales Tax Act, 1951 ?"
3. S.T.R. 113 of 1974: ' The brief facts of the case are that the respondent is a private limited Company engaged in business of frozen fish and shrimps. The respondent assessee had not submitted any return for the year 1965-66 for sales-tax. The Sales Tax Officer called upon the respondent-assessee to file return by 20th May, 1971 and was served with a notice in form S. S.T. 24 on 17-5-1971. It seems that the assessee filed quarterly return under protest and stating therein that frozen fish, prawns and shrimps are not liable to tax. The Sales Tax Officer by his order, dated 19-6-1971 assessed the sales tax. The respondent-assessee aggrieved against the aforesaid order referred appeal before the Income-tax Appellate Tribunal. The appeal was registered as Appeal No, S.T.A. 141 of 1971-72.
4. S.T.R. No, 114 of 1974: ' The Sales Tax Officer issued notice under Form S.S.T.24 for the assessment year 1966-67. The respondent assessee filed quarterly returns under protest. However the respondent-company claimed exemption from payment of Sales Tax. The assessment for the year 1966-67 was completed by the Sales Tax Officer on 26-6-1967. The respondent assessee being aggrieved against the order, dated 26-6-1972 has preferred an appeal before the Income-tax Appellate Tribunal which was registered as Appeal S.T.A. 16 (KB) of 1972-73. The respondent assessee objected to these assessm ents on two grounds (1) No notice under section 28 having been issued the proceedings were ab initio void. (ii) The notice on S.S.T. 24 was bad in law inasmuch as the assessee was called upon to file the return within a period of seven days against the statutory permission period of 35 days. The Department representative could not controvert these facts before the Income-tax Appellate Tribunal. The Departmental representative contended that before the final requisitions of 20-5-1971 was issued a number of other requisitions requiring the assessee to file the returns. The learned Tribunal held "that even if we were to hold that the last requisition of 20-5-1971 did not constitute such a notice under section 23, the time for filing the return under this requisition could not cut short from the statutory limitation of 35 days as per Form S.S.T. 15". The Tribunal by its orders, dated 26-10-1972 and 5-10-1973 held that the impugned orders of the Sales Tax Officer are void ab initio and consequently cancelled the same.
5. ' The C.S.T. Being aggrieved had filed these two direct references for our opinion and we intend to dispose by this common order.
6. ' Mr. Shaikh Hyder the learned counsel for the Department has raised the following contentions:- "(1) There is no provision under Form S.S.T.15 has been prescribed.
(2) The assessee filed return in response to notices under Form S.S.T.
24. The assessee was not prejudice in way by the issuance of notice in Form S.S.T.
7. 24."
8. ' On the other hand Mr. Iqbal Naeem Pasha, learned counsel for the respondent-assessee has contended that there could be no doubt that the respondent-assessee did not file any return as such these are cases of escaped assessment and the assessments could only be completed under section 28. The Form S.S.T. 15 which prescribes 35 days and the S.T.O. Has no power to curtail the period of 35 days.
9. ' There are two provisions, that is, sections 10 and 28 of the Act for framing the assessments under the Act, section 10 of the Act deals with the regular assessments. This section read with rules 39 and 40 of the Sales Tax Rules makes its obligatory on every manufacturer or producer and every licensed wholeseller and exporter to file with Sales Tax Officer quarterly returns on or before the 31st October, 31st of January, 30th April, and 31st July of each year showing the total sales. Section 10(1) provides for the submission of a return within 30 days of each quarter relating to the sales in that quarter.
10. ' It is admitted that the respondent-assessee had not filed any return in respect of these assessm ent years.
11. ' The learned counsel for the department has contended that Form defines under rule 3(6) of the Sales Tax Rules, 1951 "means a form appended to these Rules. Form S.S.T. 1 of S.S.T. 14 are appended to Rules framed under S. 39 of the Act. There is no Rule under which Forms S.S.T. 15 to S.S.T. 25 have been prescribed. It appears that the Forms S.S.T. 15 to S.S.T. 25 have been prescribed by the Central Board of Revenue for the general guidance. Form S.S.T. 15 prescribes 35 days within a return in the attached of form total fixable sales of business assessable for the year/quarter ending .The learned counsel has further contended that the form S.S.T. 15 is not a statutory form as such it is not mandatory but directory. The learned counsel for the department has placed reliance in the case of Commissioner of Sales Tax v. Sheikh Inayatullah 1966 PTD 287.
12. ' Mr. Iqbal Naeem Pasha the learned counsel for the respondent has invited our attention to section 5(3) of the Sales Tax Act which provides that all the officers and persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Board. Mr.Iqbal Naeem Pasha has contended that these Forms S.S.T. 15 to S.S.T. 25 were issued under section 5(3) read with Rules framed under section 39 of the Act and were binding on the Sales Tax Officers. The Sales Tax Officers themselves have been issuing notices under section 28 in Form S.S.T.
13. 15.
14. ' It will be appreciated that right from the inception of the Act and even uptil now the Sales Tax Officers have been issuing notices under S.S.T.
15. It is well-settled as laid down in Bashir Ahmed Khan v. Mahmud Ali Khan Choudhory and 3 others PLD 1960 SC 195 and The United Netherland Navigation Co. Ltd. V. C.I.T. PLD 1965 SC 412 that departmental construction can be used in aid of interpretation. In the case of Nazir Ahmed v.
15. Pakistan PLD 1970 SC 453 the Hon'ble Supreme Court of Pakistan held:-- "Mr. Mahmood Ali Kureshi, the learned counsel for the appellant, has contended that the construction of the word appointed" at one time "as meaning "selected at one time" for training has been consistently interpreted by the department itself in that sense, and that if a different view is now taken, the seniority of a large number of Engineering Supervisors will be upset. He has cited instances to support his submission which illustrate that the department has maintained seniority of the candidates in the cadre from the date of their selection for training after passing the competitive examination of the Engineering Supervisors in a particular year irrespective of the dates of their subsequent postings to their jobs. To check this point, we had sent for the Director- General of the Department who was unable to controvert this position. The departmental practice has followed the right course in the implementation of the relevant rule but whether right or wrong, it will be extremely unfair to make a departure from it now after a lapse of so many years and to disturb rights that have been settled by a long and consistent course by this practice. In the case of the appellant the seniority initially accorded to him has held the ground continuously for ten long years until it was disturbed by the impugned order. This is to say the least, is bound to weaker the faith of the employees in the attitude and behaviour of the department. A passage from Crawford's Statutory Construction (1940 edition at page 399) may be usefully reproduced to point out the effect of "departmental construction", that to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statue or the rules. The learned author observes: "Where the executive construction has been followed for a long time as element to estoppel seems to be involved.
16. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities."
17. ' In the case of Masuf Ahmed v. Pakistan PLD 1976 SC 195 at page 201 the Honourable Court:- "The argument was that establishment Division letter could not overside the statutory rules nor stultify exercise by the petitioner of option pursuant to the said rule. This argument is also without any substance. It can scarcely be controverted that the letter is expressed in general terms and having been issued by the appropriate authority namely the president, who it cannot be controverted, was a repository of the rule-making power regulating the terms and conditions of service of "listed post holders".
18. ' It was then argued that Forms S.S.T. 1 to S.S.T 14 have been issued under the Rules framed under section 39 and as these form S.S.T 15 to S.S.T. 25 were issued without any Rule. This argument he was raising on the principle that where Legislature had indicated, that a thing should be done in a particular manner it should be done in that and that manner alone. The principle advanced is quite sound but it has no application to these forms because these forms were issued by the C.B.R. Under section 5(3) of the Act and not under the Sales Tax Rules, 1951. For issuing orders, instructions and directions under section 5(3) the requirement of acting through Rules does not exist anywhere.
19. ' In the case of Navnit Lal C. Javeri v. K.K. Sen 1965 (56) ITR 198 at 203 when the Income-tax Act was sought to be amended so as to define "dividend" to include loans and advances made by a company to its shareholders, the Minister-in-charge of the legislation gave an assurance in Parliament that outstanding loans and advances will not be subject to tax it is shown that they had been genuinely refunded to the respective companies before 30th June, 1965. Pursuance to the said assurance a circular was issued by the C.B.R. On 10th May, 1965.
20. ' Referring to the said circular the Supreme Court of India observed:- "It is clear that a circular of the kind which was issued by the Board would be binding on all officers and persons employed in the execution of the Act, 1922."
21. ' The above case was followed by the Supreme Court of India in the case of Ellerman Lines Ltd. v.
22. C.I.T. Where effect was given to a circular issued by the C.B.R. Which clearly deviated from the provisions of the Income-tax Act as did the circular in Mavit La-l's case.
23. ' The Supreme Court of India gave effect to it.
24. ' Mr. Shaikh Hyder has contended that Form S.S.T.15 is directory and not mandatory. He placed reliance in the case of 1966 PTD 287 in support of his arguments. This judgment was not followed by a D.B. Of this Court in the case of E.S.T. v. Fazal Ali 1983 PTD (July part). This question has been considered in the above judgment and our learned brothers have come to the conclusion that Form S.S.T. 15 is mandatory after giving cogent reasons. We are in respectful agreement with this judgment. We are of the view that the Form S.S.T. 15 in regard to calling on the assessee to submit return is not directory but is mandatory and the Sales Tax Officers had no power to curtail the period prescribed therein. The importance of the strict observance in regard to the calling the assessee to submit the return in the prescribed period is emphasized in the form. The words of section 28 and the prescribed Form S.S.T. 15 require that the provisions of the said Act, Rules and the Forms should be observed with complete strictness and where the notice requiring the assessee to deliver to the sales tax officer not later than or within thirty-five days of the receipt of notice, a return in the attached form cannot be considered as directory.
25. ' We accordingly answer questions in the affirmative. These references are accordingly disposed of but there will be no order as to costs.