' SHAFIUR RAHMAN, J.--- Leave to appeal was granted to examine whether the High Court had by its judgment dated 10-5-1984 correctly answered the two questions referred to it with regard to the time prescribed for a notice under section 28(2) of the Sales Tax Act (Act III of 1951) in form SS. T.24, in Civil Appeals Nos.21-K and 22-K/1985, and also in other appeals this decision having been followed by the High Court of Sindh in a number of other subsequent matters.
2. The facts of one case will suffice for making the point of law thrown up in these cases requiring determination clearer and precise.
' In Civil Appeal No,21-K of 1985 (arising out of S.T.R. No,113 of 1974 which reference was decided alongwith S.T.R. No, 114 of 1974 by judgment dated 10-5-1984) the facts were that the respondent M/s. Pakistan Fisheries Limited was engaged in the business of frozen fish and shrimps. It did not submit any return for the year 1965-66 for the purpose of assessing sales tax. The Sales Tax Officer called upon the respondent/assessee to file Return by 20th May, 1971. The notice was served on 17- 5-1971. The assessee did not file the required information on the ground that the frozen fish, prawns and shrimps were not liable to tax. The Sales Tax Officer by his order dated 19-6-1971 assessed it to sales tax. The assessee referred the matter to the Income-tax Appellate Tribunal and claimed that the notice under SS.T. 24 that had issued was short of the statutory period of 35 days prescribed in SS.T.
15. The Tribunal noted this objection of the assessee in the following words:-- "In this background the appellant's plea is that, in the first instance, the proceedings were ab initio void as the same were not initiated by the issue of a notice under section 28, in case the Income Tax Officer was of the opinion that the appellant had escaped proper taxation.
' Alternatively it was argued that even if it be assumed that the requisition dated 27-5-1971 was or constituted notice under section 28 the requirement of filing the return within seven days, against the statutory permissible period of 35 days, rendered this requisition also illegal."
' It recorded the finding as hereunder:- "We find on the basis of these facts that, in the first instance the statutory notice required u/s 28 was not issued in this case. But even if we were to hold that the last requisition of 27-5-1971 did constitute such a notice u/s 28, the time for filing the return under this requisition could not be but should from the statutory limitation of 35 days."
' The matter relating to the non-taxability of the subject-matter was not at all examined. In this background, the following two questions of law were referred to the High Court for determination under section 17(1) of the Sales Tax Act:-- "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?
' 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. The plea taken up before the High Court by the Department was that statutory forms prescribed under the Sales Tax Rules and the Sales Tax Act were up to Form No,SS.T.14. Thereafter, the forms prescribed or printed in the Books were non-statutory and had no force as such. Hence, the requirement of 35 days contained in SS.T.Form 15 was not applicable to the case.
4. The High Court held that the departmental practice which remained uninterrupted had been to use these SS.T. Forms for seeking information with regard to the taxability of the goods and on the strength of decisions of this Court in the United Netherlands Navigation Co. Ltd. v. Commissioner of Income-tax, South Zone (West Pakistan), Karachi (PLD 1965 Supreme Court 412), Nazir Ahmed v.
Pakistan and 11 others (PLD 1970 Supreme Court 453) and Bashir Ahmed Khan v. Mahmud Ali Khan Choudhary and 3 others (PLD 1960 Supreme Court 195) such departmental practice could be enforced against the department itself.
' Secondly, as regards the status of Forms after Form SS.T. 15 to SS.T.25, the Court held that it was in any case a circular issued by the Central Board of Revenue and under section 5(3) of the Sales Tax Act, the preeminence of such a directive, circular or Form was fully established. Reliance was placed on Navnit Lal C. Javeri v. K.K. Sen, Appellate Assistant Commissioner of Income-tax, Bombay (1965 (56) Income Tax Reports 198 at 203).
' The High Court also examined whether this requirement of notice of 35 days was mandatory or directory and concluded that as held in the Commissioner of Sales Tax, Karachi (East), Karachi v.
Messrs Chaudhry Farzand Ali (1983 Pakistan Tax Decisions 271), the requirement of notice of 35 days was mandatory and the Sales Tax Officer had no power to curtail the period prescribed.
' On these findings, the reference was answered in favour of the assessee in accordance with the decision of the Tribunal. The department feels aggrieved by it.
5. The learned counsel for the appellant/department has reiterated all the grounds that were taken in the High Court namely, though the Form SS.T. 15 to 25 in use by the Department and printed in the books have no statutory force as they are neither a part of the Rules nor of the Act. It is contended that even the authority of Central Board of Revenue is lacking. It is also contended that the requirement of 35 days notice under Form SS.T. 15 is directory and not mandatory. Besides, according to the learned counsel, language of the notice leaves a scope for an interpretation in accordance with the other provisions of the Sales Tax Act and contrary to what has been decided in the impugned judgment/orders.
6. Learned counsel for the respondents have, on the other hand, relied upon the reasoning of the Tribunal and the High Court given in the impugned judgments for sustaining the conclusions drawn and the law laid down by the High Court, which decision has been followed in the other matters which have come up for hearing alongwith Civil Appeal No,21-K/85 before this Court.
7. The controversy whether these prescribed Forms SS.T. 15 to SS.T. 25 have issued with the approval of the Central Board of Revenue or not need not be resolved in these proceedings and cannot be so resolved. These Forms have been long in use in the Department for the purposes for which they are meant. The High Court was, therefore, correct in assuming for the purposes of disposal of the case that these Forms had the approval of the Central Board of Revenue and section 5(3) of the Sales Tax Act would bind them to follow it. Section 5(3) of the Sales Tax Act, 1951 reads as hereunder:-- "All officers and persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Board: ' Provided that no orders, instructions or directions shall be given so as to interfere with the discretion of the Appellate Assistant Commissioner of Sales Tax in the exercise of his appellate functions?
8. Two provisions of law having a direct bearing on the subject are subsections (3) and (4) of section 10 of the Sales Tax Act and section 28(1) of the Sales Tax Act. Section 10 deals with the situations where the manufacturer or producer or a licencee wholesaler and exporter has filed the prescribed return in the prescribed manner and in the prescribed form relating to the sales made in each quarter. It is in respect of such statements that subsections (3) and (4) authorise the Sales Tax Officers in the following words:-- "(3) If the Sales Tax Officer is not so satisfied, he may, after calling for such further particulars and such books of account and documents as he may require, determine the tax payable.
(4) If the return under subsection (1) has not been sent or the books of account or documents called for under subsection (3) have not been produced, the Sales Tax Officer shall make an assessm ent to the best of his judgment after giving the assessee an opportunity of being heard."
' Subsection (1) of section 28 of the Sales Tax Act deals with a situation where "for any reason in any year tax escaped assessm ent or has been under-assessed or assessed at a rate lower than that provided under this Act, or excessive relief or refund has been allowed," the Sales Tax Officer has been authorised as hereunder:-- "(a) Where a return for the relevant quarter, quarters or years has not been filed, serve a notice at any time on the assessee and after making such enquiry as he considers necessary make the assessm ent at any time within two years from the end of the year in which such notice was served; and
(b) in other cases, serve a notice at any time within three years from the end of the year in which the assessm ent was first made or excessive relief was allowed or the order for refund was first passed, and after making such enquiry as he considers necessary re-assess, at any time within two years from the end of the year in which such notice is served, the tax payable, or relief or refund allowed."
' This subsection so far as may be, also makes applicable the provisions of subsections (2), (3), (4),
(5) and (6) of section 10, accordingly.
9. Corresponding to these sections, there are printed Forms. Form SS.T.24 is in the following words:- - "FORM SS.T.24 FORM OF SUMMONS UNDER THE SALES TAX ACT, 1951 ' Summons to appear in person or by an authorised agent or by a pleader duly instructed and able to answer all material questions relating to the assessment or accompanied by some person able to answer all such questions and/or' to produce documents.
' To ' Whereas your attendance is necessary to give evidence whereas the following documents (here describe the documents in sufficient detail to permit of their identification with reasonable certainty) are required with reference to an inquiry under the Sales Tax Act, 1951 (here enter briefly the subject of the inquiry) now pending before me you are hereby summoned to appear in person to produce, or cause to be produced the said documents ' before me on the------------------------------- day of-............. 19 at 0' Clock at (place) (and not to depart thence until permitted by me).
' Given under my hand and seal of this------------------ day of-------------- 19--------
(Seal) Signature Official Designation."
' No reference is made to the section under which this requisition for attendance and record issues but it could as well be under section 10 of the' Sales Tax Act.
' Form SS.T.15 is in the following words:-- "FORM SS.T.15 NOTICE UNDER SECTION 28 OF THE SALES TAX ACE, 1951 ' Dated 19 Office of the G.I.R. No, Licence No, ' To ' Assessm ent year/quarter ending------ Whereas I have reason to believe that the value of taxable sales of your business in the year/quarter ending-------19--
(I) has wholly/partially escaped assessment;
(ii) has been assessed at too low a rate and I therefore, propose----
(a) to assess the said value of taxable sales that escaped assessment;
(b) to revise the assessm ent of sales tax.
2. I hereby require you to deliver to me not later than ----or within thirty-five days of the receipt of this notice, a return in the attached form of total taxable sales of your business assessable for the year/quarter' ending---of---19 .
' Seal Sales Tax Officer.
Address."
This Form (SS.T.15) is expressed to be for notice under section 28 of the Sales Tax Act. This has, however, been on its language used in paragraph 2, interpreted to control the discretion of the Sales Tax Officer in the matter of prescribing the period within which the notice has to be responded.
10. There are three legal reasons against the view taken by the High Court. The first is that even where the time limit of thirty-five days after the receipt of the notice is prescribed, it is "within". Such a notice can be responded the next day or even after a shorter interval. The second is that this is the second alternative in the notice. The first alternative precedes it. It requires the exercise of discretion and judgment by the Sales Tax Officer. It is not controlled either by the provisions of the Sales Tax Act or by the Rules, nor even by this Form in the matter of fixation of the date not later than which the notice has to be responded. If the Sales Tax Officer chooses to exercise his discretion and the judgment in fixing the date, it takes over leaving the second alternative redundant, inapplicable or subordinate, because the two cannot stand together. The third is that where two alternatives supported by a disjunctive exist, and they contradict each other and no preference for either is shown, then the one which is the result of exercise of judgment and discretion will prevail over the other which is routinely printed and has been prescribed without relevance to the individual case to which it relates.
11. The conclusion which can reasonably be drawn from the provisions of the Act, the Rules and the Forms prescribed is that there was no encroachment on the discretion of the Sales Tax Officer with regard to the fixation of the time within which the notice had to be responded and that on the contrary there are clear indications that the existence of such a discretion has been recognized, protected and given effect to by subordinating the second alternative to the first.
12. In the circumstances, all these appeals are allowed. The view taken by the High Court is set aside and it is held that thirty-five days prescribed is not the minimum period for which the notices had to issue nor can the notices be invalidated in cases where the Sales Tax Officer has given himself a specific date, even though shorter of the thirty-five days.
13. The notices that issued and served were valid and further proceedings would be taken in accordance therewith.
' No order is made as to costs.