AJMAL MAIN, J.- (1) The Commissioner of Income Tax, (Central Zone), Karachi, has filed this application under section 17(2) of the Sales Tax Act, 1951, for soliciting the opinion of this Court on the following two questions: "(1) Whether, on the facts and in the circumstances of the case, the learned Tribunal was right in holding that the notice dated 18th April, 1973 which was issued under sub-section (2) of section 28 of Sales Tax Act, 1951 was invalid, void, ab initio because it did not allow 35 days time for filing the return?
(2) Whether, on the facts and in the circumstances of the case, the learned Tribunal was right in holding that there is a minimum mandatory period of 35 days for filing return as required under sub-section (2) of section 28 of the Sales Tax Act, 1951 which the Sales Tax Officer must allow for filing return under that provision of sub-section (2) of section 28 of the Sales Tax Act, 1951"?
The above direct application has been filed as the learned Income-tax Appellate Tribunal has declined to make a reference to the Court under section 17(1) of the Act.
2. Learned Counsel for the parties have pointed out that there has been a judgment of a Division Bench of this Court on the above two questions namely, Commissioner of Sales Tax, Karachi v.
Messrs Pakistan Fisheries Ltd. Karachi, reported in 1985 PTD 282 (Karachi High Court) = PTCL 1985 CL. 270, in which the above two questions have been answered in the affirmative. Incidentally it may be mentioned that in the above reported case the parties were the same as in the present application. Be that as it may, Mr. Shaikh Haider learned counsel for the applicant has submitted that the finding of the learned Income-tax Appellate Tribunal that the Form S.G. 24 has been prescribed by the Central Board of Revenue is contrary to the factual position as it was not prescribed by the Central Board of Revenue, which has been held by a Full Bench of the Income Tax Appellate Tribunal recently. The second submission of Mr. Shaikh Haider is that since no penal consequences have been provided, the. Requirement of 35 days notice is merely directory and not mandatory.
3. Whereas Mr. Iqbal Nadeem Pasha learned counsel for the respondent relies upon the above cited judgment and also on a Circular No. S.T.C. 1/51 dated 28th June, 1951 issued by the Commissioner of Sales Tax Karachi, Sind and Baluchistan in order to contend that the above Form was prescribed by the Central Board of Revenue.
4. In or view we cannot go into the above question as the finding recorded by the learned Income- tax Appellate Tribunal in the instant case is that the above form was prescribed by the Central Board of Revenue. The question whether the above period of 35 days was directory or mandatory has been dilated upon in the above cited judgment of Division Bench of this. Court to which one of us (Amal Mian, J is a party. Mr. Shaikh Haider has also filed written arguments in support of the above submission. He has further submitted that the Honourable Supreme Court has granted leave in the petition for leave against the above reported judgment.
5. In or view, the above judgment is binding on us and, therefore, we cannot take a different view in the matter. The department may i.e a petition for leave, if aggrieved. The answer, therefore, to the above quoted two questions, for the reasonings given in the above reported judgment is in the affirmative. There will be no order as to costs.