1. WAHEEDUDDIN AHMAD, J.--This certificated appeal is directed against the order of the erstwhile High Court of West Pakistan, Lahore, in Writ Petition No. 744 of 1961 dated the 20th November 1961. By -this order the writ petition was dismissed in limine.
2. The appellant-company was, at the relevant time, running a textile mill at Lyallpur and had also taken on lease four cotton ginning factories at Multan, Mian Channu, Tandlianwala and Jaranwala.
3. It submitted the returns of sales -tax turnover as follows:-- October 1955For the quarter ending 30 June 1955 and 30th. September 1955.
4. The returns in respect of Mian Channu and Multan Branches were filed on the 26th April 1960, and those for Tandlianwala and Jaranwala Branches were submitted on the 27th June 1:960. The notice in Form SST-24 was issued by the Saks Tax Officer, Company Ward 11, Lahore, on the 20th February 1956 for 28th February 1956, relating to the period from 1st April 1955 to 31st December 1955.
5. Respondent No. 1 created a demand of Rs. 8,80,000 vide assessment order dated the 30th June 1960, for the assessm ent year 1955-56. In addition to this demand the said respondent also imposed a penalty of Rs. 50,000 upon the appellant without issuing any show-cause notice to it, or affording it any opportunity of being heard. The appellant-company paid an amount of Rs. 1,42,700 against the said demand of the sales tax and penalty of Rs. 50,000 apart from the amount of Rs.
6. 7,10,538 already paid before the creation of the said demand. After other adjustments the not balance still outstanding against the appellant --company is Rs. 26,323.
7. The appellant-company filed an appeal against the, above assessment but it was dismissed by the Appellate Assistant Commissioner, Sales Tax, B-Range, Lahore, having been preferred withoutth payment of admitted liability. Thereupon, the appellant-company filed a Writ Petition No. 744 of 1961, challenging the assessm ent made by respondent No. 1 on the 30th June 1960, for the assessm ent year 1955-56. As already stated it was dismissed vile former West Pakistan High Court, Lahore, order dated the 20th November 1961. The appellant filed application for grant of certificate for appeal to this Court under Article 158 of the Constitution of 1956. This was granted by the High Court by their order dated the 7th December 1956.
8. The contention of the appellant-company is that the assessment for the year 1955-56, as determined by respondent No. 1 vide this order dated the 30th June 1960, is without jurisdiction, illegal and void and of no legal effect. It is contended that the High Court failed to exercise jurisdiction vested in it by law in issuing a writ as prayed for. It is in these circumstances that the present appeal has come before us.
(i) that the Sales Tax Act under which the assessments are alleged to have been framed was not law in force during the assessm ent year 1955-56 because the Federal Legislature, which enacted the Sales Tax Act in 1951, was empowered to enact the said Sales Tax Act only up to 31st March 1952;
(ii) that the Federal Legislature was given a power to levy sales tax with effect on and from 1st April 1952, but this power was never exercised and the Sales Tax Act was not re-enacted;
(iii) that the powers of Federal Legislature were limited in point of time in 1951 and it could not pass any Act beyond the period up to which it was authorised by law to enact, i.e., 31st March 1952;
(iv) that even assuming that the proceedings for 1955-56 could be continued, the assessment framed on 30th June 1960, for the assessment year 1955-56 is barred by time having been framed after four years two months and 29 days after the period prescribed for the assessment;
(v) that the penalty of Rs. 50,000 has been imposed without giving any opportunity to the assessee of being heard and is, therefore, illegal and void. Similarly, penalty of Rs.4,700 is illegal and void.
9. So far as the first three questions are concerned these points were considered by this Court in Nooran Cotton Corporation v. Sales Tax Officer (PLD 1965 SC 161) and were repelled by this decision. At page 169 of the report this Court observed as under:--- "The second contention put forward before the High Court needs a statement of some legislative changes. Sales Tax was under the Government of India Act, 1935, a Provincial subject being included in Entry No. 48 of the Provincial List. By the Government of India (Amendment) Act, 1948, the words "the sale of goods and on" were omitted from Entry No. 48 in the Provincial List and a new Entry No. 54-B "taxes on the sale of goods" was inserted in the Federal Legislative List. The insertion of this entry, however, was to be operative only up to the 31st March 1950. Before 31st March 1950, that is, on the 27th March 1950, there was another amendment of the Government of India Act providing that the words "the sale of goods and on" would be omitted from Entry No. 48 of the Provincial List and an entry "taxes on the sale of goods", would be inserted in the Federal List as Entry No. 54-B. Again this amendment was to last for two years expiring on the 31st March 1952. On the 25th March 1952, there was again a similar amendment, but this time there was no limitation as to period.
10. The Sales Tax Act is an Act of 1951 and was passed on the 20th April 1951, by the Central Legislature.
11. The contention on behalf of the appellants before the High Court was and before us is that the Central Legislature had power to enact laws with respect to sales tax only for a period of two years, that is, till the 31st March 1952, and that after that date the Sales Tax Act lapsed and was of no effect. We see no reason for accepting the proposition that the time for which a Legislature has been granted power to enact laws on a subject necessarily involves a competence to enact laws only for that period. As long as the power to enact laws remain in force it is a power to make laws for all time past as well as future, that is, with prospective as well as retrospective operation, unless of course there be some further limitation on the powers of the Legislature. Even if the power to legislate existed for a day the Legislature, could have made laws for all time. The limitation was as to the time during which the power of making laws could be exercised and not as to the extent of their operation when they were enacted. The argument can be explained with respect to the provision in the Government of India Act which bestowed power on the Legislature to make laws.
12. Under section 100 of the Government of India Act, the Central Legislature had the power to make laws with respect to items in the Federal List. As long as that list included a particular item there would be full power in the Central Legislature to make laws with respect to that subject, because the provision in section 100 that the Central Legislature had "power to make laws" implied a power to make laws for all times and without any limitation. That admittedly is the meaning of the words used in section 100 for it is from these words alone that the Central Legislature derived its power to make laws."
13. It will be noticed that the-High Court did not express any opinion on the last two contention is raised by the appellant on the following observation:- "The remaining contentions raised in the petition are the subject-matter of an appeal before the Income-tax Authority. It will, therefore, amount to usurpation of the jurisdiction of the Special Tribunal if we adjudicate upon the subject--matter of that appeal."
14. Mr. Javed Hashmi, learned counsel for the appellant, has contended that in cases of absence or excess of jurisdiction or where the impugned order suffers from the illegality on the face are of record the writ of certiorari can be issued. In support of his contention, the learned counsel has relied on a decision of this Court reported in Nagina Silk Mill v. Income-tax Officer (PLD1963SC322) It was held in this case as under:---- "In cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record a certiorari may be granted even though the right of statutory appeal had not been availed of. A certain amount of flexibility is allowed by the law in the case of a prayer for a writ of certiorari as compared with a case for a mandamus. If the application for certiorari is made by a party aggrieved, then it ought to be granted ex debita justified and the High Court has not the general discretion which it would have, when the application is made by a member of the public, who is not personally concerned. This would specially be the case where the alternative remedy provided by the relevant statutes is not as efficacious, speedy or convenient as the one available under the writ jurisdiction of the High Court. That relief in these cases could not have been obtained as quickly or with as much facility and convenience under the Act which provides for a series of appeals, revision and reference to the High Court on law points, on condition that the tax assessed is first paid, as by recourse to the writ jurisdiction of the High Court, can hardly be contested."
15. He further relied on a decision of this Court in Usmania Glass Sheet Factory v. Sales Tax Officer (PLD1971SC205). It was held in that case that in a case where the dispute arises between the parties in respect of a fiscal right based upon a statutory instrument the same can be easily determined in writ jurisdiction.
16. On the basis of these decisions learned counsel contended that the High Court should have exercised jurisdiction in respect of the last mentioned two points raised in the present appeal. The contention of the learned counsel is not without force. The appellant's contention is that the assessm ent authority has no jurisdiction to assess the appellant owing to lapse of time. In this connection reference is made to section 28 of the Sales Tax Act, 1951. This goes to the very root of the jurisdiction of the assessm ent authority. We would, therefore, remand this case to the High Court for considering the question whether the Sales Tax Authority could assess the appellant after a lapse of four years, two months and twenty-nine days, and also to consider the question whether they were justified in imposing a penalty upon the appellant without affording him any opportunity of hearing.