1. ' SALEEM AKHTAR, J--The applicants are engaged in manufacturing of "sports shot guns". They had neither filed returns nor paid Sales Tax on the goods manufactured by them. Consequently notices under section 28 of the Sales-tax Act were issued in respect of assessment years 1969-70, 1970-71 and 1971-72 requiring them to file returns within a period of four days. The applicants filed returns but claimed exemption under item 15 of Sales Tax Notification No,9 of 27-6-1951 on the plea that the goods were product of hammer work and in the alternative exemption was also claimed under item 12 of the said Notification as the goods produced were sports goods. Both these pleas were rejected by the Sales-tax Officer and assessments were framed. The applicants filed an appeal before the Appellate Assistant Commissioner where they challenged that the assessments were had in law on the ground that only four days' time instead of 35 days as required under section 28 of the Sates Tax Act was given for filing return.
2. ' Other grounds raised before the Sales Tax Officer were also pressed in appeal. The appeals were dismissed and the applicants challenged those orders before the Tribunal where they did not succeed. The applicants then filed an application under section 17 of the Sales Tax Act for referring the following five questions to this Court:
(a) Whether on the facts and in the circumstances of the case, the curtailment of time limit from the prescribed notice under section 28 of the Sales Tax Act deprived the Sales-tax Officer of jurisdiction in framing a valid and legal order and whether the Tribunal was justified in confirming such an order.
(b) Whether the learned Tribunal was justified in holding that there was no prescribed notice under the Sales-tax Act and whether on the face of this finding the conclusions drawn by the Tribunal were correct.
(c) Whether the learned Bench of the Tribunal could bypass the earlier decisions of the Tribunal (including Full Bench Decisions on the same facts.
(d) Whether the Tribunal was right in holding that the goods manufactured by the applicants were not "Sports goods" and the manufacture thereof was not exempt from the payment of Sales-tax.
3. ' Whether in the facts of the case the Tribunal was justified in not holding that the predominant use of the shotguns was sports".
4. ' The Tribunal considered these questions in which it was admitted that instead of 35 days only 4 days' time was allowed to file returns but the questions at serial No, (a) (h) (c) were not referred on the plea that they were "not pressed seriously" as the assessments were made on the returns filed in compliance with the notices and no protest was made before the Assessing Officer. The Tribunal hearing application under section 17 of the Sales Tax Act has taken the view that this plea was dropped at the time of hearing of appeal and therefore the merits of the plea was not discussed and in the course of that order only passing reference was made. The Tribunal therefore referred the following question: ' Whether on the facts and in the circumstances of this case, the Tribunal rightly held that, shotguns manufactured by the applicants, were not sports goods, and therefore not exempt from levy of Sales-tax under item 12 of Sales-tax Notification No,9 of 1951?
5. ' The applicants have also filed in this Court an application under section 17 (5) of the Sales Tax Act praying that all questions raised under section 17 (1) of the Sales Tax Act may be heard by this Court. An application under section 5 of the Limitation Act has also been filed for condoning the delay.
6. ' Mr. Mohammad Nasim the learned counsel for the applicants has contended that these applications have been made by way of abundant caution although such applications are not necessary as the Court is competent under section 17 (3) of the Sales Tax Act to refer the case to the Tribunal for stating the case properly and referring all the questions of law which arise from the order of the Tribunal. In order to appreciate the contention of the learned counsel for the applicants it is necessary to examine the appellate order passed by the Tribunal as well as appellate order passed by the Appellate Assistant Commissioner. The latter order has not been incorporated in the paper hook although in all fairness it should have been made part of the paper book as it has been referred in the order of the Tribunal and it also shows that the legal plea regarding jurisdiction of the Sales Tax Officer was raised before the Appellate Assistant Commissioner. In para 3 of the Tribunal's appellate order at page 23 of the paper book it has been observed as follows:- "When the matter went to the learned Appellate Assistant Commissioner it was argued in the first place, that the assessm ents were bad because in the notice issued under section 28 for filing the returns the time allowed was only four days instead of 35 days the assessment framed were bad in law."
7. ' Again in para 4 it has been observed as follows: "The legal plea was however, not pressed seriously as the assessments were used on the returns filed in compliance with these notices and admittedly the appellant had made no protest before the Income Tax Officer for curtailing the statutory time limit of 35 days. Before us the only plea advanced is that the 'short guns' manufactured by the appellant are 'sports goods."
8. ' These observations with regard to the raising of legal pleas seem to be contradictory. The applicants had not raised the plea before the Sales Tax Officer but dial challenge the assessment on the legal plea that period of 35 days required for filing returns had not been provided to them. In the absence of the order of the Appellate Assistant Commissioner we are unable to state how it was dealt by him. From the order of the Tribunal it is clear that it was raised but was brushed aside by observing that it was not seriously pressed. It is a matter for consideration whether a plea was seriously pressed or not as it depends upon how and in what manner and with what seriousness the Tribunal has heard the arguments. The fact remains that the objection was raised whether seriously or not makes little difference as it is a matter of degree of appreciation particularly when the learned counsel disputes this fact. Once an objection to the jurisdiction is raised it has to be decided on merits. Therefore it would not be proper to say that the question relating to the jurisdiction was not pressed because it was not seriously raised. Even this observation is based partly on conjecture and assumption. We are satisfied that the question regarding jurisdiction was raised before the Tribunal and a question of law did arise from the order of the Tribunal which has not been referred although a proper application was made by the applicants to refer such questions. Where a question of law arises from the order of the Tribunal, there is hardly any justification or jurisdiction to refuse to refer such question of law to the High Court.
9. ' Mr. Sheikh Haider the learned counsel has contended that as the Tribunal had refused to refer the question of law to this Court the applicants should have filed an application under section 17 (4) within 90 days for referring the question to the High Court and as it has not been filed within 90 days and section 5 of the Limitation Act is made applicable only to application to the High Court under subsection (1) of section 17 the application is time barred and this question cannot be raised.
10. He has referred to International Beverages Limited v. Commissioner of Income Tax 1984 PTD 431 for the proposition that a question of law which was not agitated before the Tribunal cannot be referred. There is no cavil with this proposition of law but it is not applicable in the present case as the question of law was agitated before the Tribunal which according to the Tribunal I itself was not seriously agitated which does not mean that it was not agitated.
11. ' Mr. Mohammad Nasim has contended that section 17 (4) does not contemplate a case where the Tribunal has referred the questions partly and refused to refer other questions raised in the application and therefore in such circumstances the High Court exercising jurisdiction under section 17 (3) may require the Appellate Tribunal to modify the statement and refer the questions of law which were refused to be referred. In this regard the learned counsel has referred to Mahabir Prasad Niranjanlal v. Commissioner of Income Tax U.P. 1951 I T R 472. This is a case under section 66 of the Income Tax Act which is equivalent to section 17 of the Sales Tax Act. In this case the Tribunal had not referred all questions of law which were raised by the assessee and were said to have arisen from the order of the Tribunal but only part of the questions were referred. It was held that provisions of section 66 (2) of the Income Tax Act which provides for six months limitation for an application where the Tribunal has refused to state a case will not apply to such case. Subsection
(4) is wide enough to cover such a case. If the High Court is satisfied that the statement of the case is insufficient it can refer the case back to the Income Tax Appellate Tribunal to give a fuller statement and no period of limitation has been fixed for an application to the High Court for directing the Tribunal to refer the other questions of law and there is no bar to the application at the time of the reference under section 66. This case fully supports the submission of the learned counsel for the applicants. We have also noted another judgment of the Allahabad High Court reported in Juggilal Kamlapat v. Commissioner of Income Tax Uttar Pradesh and Vindhya Pradesh 1961 (41) I T R 257 which has followed the above judgment. However we have been able to find out two judgments of the Supreme Court of India and other High Courts in which this view has not been approved. In Kamlapat Motilal v. Commissioner of Income Tax U.P. And V.P. 1962 (45) I T R 266. In this case the Tribunal had refused to refer one of the questions sought to be referred by the applicant under section 66 of the Income Tax. The applicant filed petition under section 66 (4) for direction to the Tribunal to refer the remaining questions. Before this petition could be heard Income Tax Reference made by the Tribunal was decided. It was observed that section 66 (4) does not apply and the High Court cannot ask the Tribunal to state the case on a question not referred by the Tribunal to the High Court or the question which the Tribunal has refused to refer. It was further observed:- "It is obvious that subsection (4) of section 66 cannot do service for subsection (2) thereof. If the assessee was dissatisfied with the order of the Tribunal refusing to state a case on certain questions, the clear duty of the assessee was to move the High Court under subsection (2) of section 66 within the time allowed by law. The assessee in the present case did not take any such action and he wanted to evade the consequences of his failure to take any such action under subsection (2) by resorting to a petition under subsection (4). This the assessee was not entitled to do. Subsection (4) comes into operation when the case is incomplete in the sense that all the relevant material facts are not set out therein or the Tribunal has not stated its conclusions and findings on the material facts of the case."
12. ' In Commissioner of Income Tax Poona v. Sunderlal N. Daga and others 1971 (81) I T R 73 the Supreme Court's judgment in Kamlapat' case was followed.
13. ' Reference can also be made to Balbhadhar Mal Kuthiala (1957) 31 I.T.R. 930, Pannalal Nandlal Bhandari (1956) 30 I.T.R 139, Lakshamiratan Cotton Mills Co. Ltd (1966) 61 I.T.R. 744 and Haji Abdul Kader Saheb (1961) 42 I.T.R.
296. All these judgments have decided that where some of the questions have not been referred by the Tribunal the remedy lies in section 66 (2). Section 66 (2) of the Income Tax Act is similar to section 17 (4) of the Sales Tax Act and Section 66 (4) is similar to section 17 (3). These provisions contemplate two different situations. Under section 17 (4) if the Tribunal refuses to state the case on the F ground that no question of law arises then the assessee or the Commissioner may apply to the High Court for a direction to refer the question of law. In the Allahabad High Court distinction has been made between the cases where all questions have not been referred and cases where some questions have been referred and other questions have not been referred. No such distinction is required as the refusal to refer the question in part or in to does not make any difference. Refusal to refer some questions out of many questions will be covered by section 17 (4) because it is refusal to refer any question which entitles a party to apply to the High Court. Section 17 (3) refers to a situation where question has been referred but the statement of case referred is insufficient to enable the Court to determine such question. In such circumstances Court may refer the case back to the Appellate Tribunal to make additions or alterations as Court may direct which may be necessary for determination of the question. Therefore the dissatisfaction is only in respect of the statement made in respect of the question referred and not in respect of the question which has not been referred.
14. The applicants have filed an application under section 17 (5) of the Sales Tax Act praying that all questions raised by them may be heard by this Court as questions of law which go to the root of the jurisdiction of the Tribunal and have not been referred. Such relief cannot be granted under section 17 (5). In view of the aforesaid observations even under section 17 (4) of Sales Tax Act which is similar to section 66 (2) of the Income Tax Act such a relief cannot be granted. The applicants ought to have filed application under section 17 (4) within the prescribed period. Even if we treat the application under section 17 (5) as an application under section 17 (4) it is barred by time as it was not filed within 90 days from the date on which the applicants were served with the notice of refusal. It was filed on 9-10-1988 when the matter was fixed for regular hearing. The applicants have also filed an application under section 5 of the Limitation Act for condoning the delay and it has been stated that they were advised by their Advocate that the questions which have not been referred to the High Court can be considered by the High Court when the matter comes up for hearing of Reference. The advocate for the applicants has filed his affidavit and stated that the delay was on account of bona fide wrong advice tendered by him. It is pertinent to note that the question was referred by the Tribunal on 29-11-1977 and the case was received with printed paper book on 7-11-1979 when after registration notice was issued. The case came up for hearing on 21-9- 1988 when the advocate for the applicants applied for adjournment which was granted. On 12-10- 1988 it transpired that the applicants had filed an application under section 17 (5) of the Sales Tax Act on 9-10-1988. After some arguments when it was pointed out that proper remedy may be under section 17 (4) the applicants' advocate although maintaining that relief can be granted under section 17 (5) requested for time to file application under section 5 of the Limitation Act.
15. Without commenting upon the merits of this application, it may be pointed out that section 5 of the Limitation Act has not been made applicable to application under section 17 (4) or 17 (5). Section 17
(8) makes section 5 of Limitation Act applicable to applications under section 17 (1) only. Both the applications are misconceived and are dismissed.
16. ' Now coming to the question referred we find that Tribunal has held that the shotguns manufactured by the applicants are not sports goods and are not exempt from levy of Sales Tax under item 12 of Sales Tax Notification No,9 of 1951. The shotgun is primarily made for purpose of shooting which may result in killing or injuring the persons, animals or birds shot at. It is not manufactured merely for shooting at targets for purposes of practising and improving the skill. The object of shooting is always within the control of the manhandling it. Shotguns cannot be compared with other sports goods as their primary aim and object is not to shoot, kill or injure any one nor can their normal and ordinary use achieve this object. We cannot ignore the fact that without obtaining a licence under the Arms Ordinance, no one can own or possess a shotgun which is firearm. We are therefore of the view that the shotgun is not a sports goods. We answer this question in the affirmative.