SAYED NAJAM-UL-HASSAN KAZMI, J.- This order will dispose of Writ Petition No. 2861 of 1994 and Writ Petition No. 3006 of 1994 as common questions of law and fact arise therein.
2. In Writ petition No. 2861 of 1994, the facts stated are that the Mill Premises of the petitioner was raided by the staff of respondents, on 8.7.1992, office record 'was confiscated, and later respondent No. 3 passed an assessm ent order No. 130 of 1992 dated 31.8.1992, wherein he adjudged sum of Rs.
8,67,440/-, as short paid levy by the petitioner and accordingly, the petitioner was directed to deposit the same along with additional tax and surcharge under Sales Tax Act, 1990. The petitioner challenged the assessm ent order in appeal before respondent No. 2 which according to the petitioner was decided and order was received by post on 8.10.1992. it is claimed that no notice was given to the petitioner, it is alleged that the petitioner on inquiry had found that show cause notice was sent to the petitioner, requiring the petitioner to explain about the short payment and to appear before respondent No. 1 on; 13.9.1992. According to the petitioner, the show- cause notice was not delivered and ah ex-parte order was passed on 13.9.1992. Petitioner challenged the order before Collector Appeals (respondent No. 1) who dismissed the appeal vide order dated 24.8.1993.
The petitioner has thus challenged the orders of respondent No. 1 and 2, in the present writ petition.
3. In Writ petition No. 3006/94, the facts are similar to the other petition, the premises was raided, certain record was allegedly taken in possession assessment order No. 129 dated 31.8.1992, adjudging the petitioner liable to pay Rs. 8,67,460/- as short paid levy was served upon the petitioner, the petitioner challenged the assessment order in appeal before respondent No.3, the appeal was dismissed, petitioner went in appeal before respondent No. 1 which appeal was dismissed and Consequently, the orders of the authorities have been called in question in the writ petition.
4. Learned counsel for the petitioners argued that assessment order No. 130 dated 31.8.1992 and assessm ent order No. 129/92 dated 31.8.1992, were wholly untenable and without basis, the petitioners were not served with show-cause notices and were deprived of the opportunity of hearing before the Deputy Collector Sales Tax. it was contended that the ex-parte order dated 6.10.1992 by Deputy Collector were legally not sustainable. Learned counsel argued that the Collector of Appeals did not properly comprehend the relevant provisions of law and also passed a mechanical order, it was argued that earlier one writ petition was filed but later two petitions were filed by withdrawing the earlier petition as two sets of orders need to be challenged separately, it was maintained that the Collector passed his findings on the assessment order of the Income Tax which order was in the first instance passed on the information supplied by the respondents themselves and had otherwise been set aside and thus could not be relied upon. it was urged that there was no. basis for assuming evasion of tax. it was contended that the relevant SRO No. 666(1 )/81, SRO No. 5666(1 )/89, SRO No. 599(1 )/90 and SRO No. 505(1 )/91 would show that the scrap was exempt from Sales Tax till 30.6.1989 and that the department itself admitted 6% visible and invisible losses occurring during the process of manufacturing as not taxable while the petitioners had claimed 4.5% which was within the permissible limits. Learned counsel submitted that there was no basis for assessm ent that the end cutting waste were sold for any production to the Wapda nor there was any basis for the amount determined as tax due from the petitioner, it was vehemently urged that in terms of SRO issued in 1993 if the tax was not recovered in good faith, by the manufacture, the same could not be recovered from him at a later stage provided it was proved that the manufacturer did not recover the amount of sale tax and that no action was taken by the department during the relevant period. Learned counsel submitted that in this case, the action was barred by time and was otherwise covered by the exemption SRO. As to the non-filing of appeal before the Tribunal learned counsel submitted that at that time Tribunal has not been constituted and the aggrieved party used to file either revision before the Judicial Member of CBR or Writ Petition and in both situations the Courts have being granted relief in accordance with Law.
Learned counsel submitted that the writ petition was filed as the tribunal did not exist at that time though the right of appeal was provided by the statute.
5. Mr. A. Karim Malik, learned Legal Advisor of respondents, argued that the question decided by the authorities in the hierarchy of jurisdiction being of fact, no interference can be claimed in the Constitutional jurisdiction against the findings of fact, it was contended that the petitioner earlier filed Writ Petition No. 10798/93 which was withdrawn but this fact was not disclosed in the present petitions, hence, according to the learned counsel, petitioners had approached the Court with unclean hands, it was argued that even if the Tribunal has not been constituted, yet the revision was available before the Member Judicial, which remained having not been availed, the matter could not be directly challenged in the constitutional jurisdiction. Learned counsel submitted that the Collector of appeals did hear the petitioner though the petitioners deliberately avoided to reply show cause notices before the Deputy Collector and that the findings recorded in appeal do not suffer from any error of law.
6. 4s far as objection of learned counsel for the respondents that the earlier writ petition was withdrawal and in the subsequent petition, the factum of withdrawal of earlier writ petition was not disclosed and from this, it should be assumed that the petitioner did not approach this Court with clean hands, it appears, that the objection has been raised, in observation of the facts on record.
From the record of Writ Petition No.. 10798/93, previously filed by the petitioner, it is describle that the petition was entertained on 13th August, 1993, certain orders were passed therein and in the course of hearing of the said petition, it was found that two separate petitions should have been filed to assail the order under consideration, in this view of the matter, petitioner filed Writ Petition No. 2861/94 and Writ Petition No. 3006/94. Writ Petition No. 2861/94 was filed on 6.3.1994 which was heard on 9.3.1994, when pre-admission notice was issued to the respondents. At the end of the petition, there was a note that the office shall put up writ petition No. 10798/93 at the time of hearing of the writ petition. A similar note also appears at page 8 of the other writ petition (W.P. No. 3006/94). The two petitions having already been filed, learned counsel for the petitioner brought this matter to the notice of the Court, and withdrew the previous writ petition, to pursue the two separately instituted writ petitions. This was so recorded in order dated 8.3.1994. Being so, it cannot be said that the petitioner did not disclose the filing of the earlier writ petition or that the earlier writ petition was withdrawn unconditionally. The earlier writ petition was withdrawn unconditionally. The earlier writ petition was obviously withdrawn after the filing of the two petitions which could not bar the maintainability of the subsequently instituted two writ petitions, it is a settled rule that provisions of Order 23 Rule 1 CPC does not hit the maintainability of the second suit, if filed during the pendency of the earlier one and if the earlier one is withdrawn subsequent to the filing of the second suit. On the same principle, the present two petitioners, were properly instituted and cannot be thrown away on this technical objection.
7. The other aspect of the matter is, that sales Tax Act, 1990 provided for an appeal to the Tribunal, against the order passed by Collector of Appeals. At the time when the writ petitions were filed, the tribunal had not been constituted under Section 46 of the Act and under an administrative order, the appeals were being treated as revisions by the Member Judicial Central Board of Revenue. in certain cases, revisions were decided by the Member Board of Revenue while in other cases writ petitions were filed, which were entertained, heard and decided. Though at the time when the present writ petition was filed, the tribunal has not been constituted yet during the pendency of these petitions, tribunals were constituted and were undeniably functioning since then, in the present case, the objections raised are legal as well as factual. Case of the petitioners is that no show-cause notice was served, proceedings before the Deputy Collector were ex-parte, material confiscated by the department could not be used without confronting the same to the petitioner, reliance was placed on the assessme nt order of Income Tax, which was based on the informations supplied by the respondents and that the order itself was later set aside and also that there was no basis for assuming or calculating the short levy, as done in this case. One of the objection is that there was some notification of exemption, which provided that if the recovery of certain tax was not made in good faith and no action was taken at department side, within prescribed period, the action would not be permissible thereafter. At the same time, there is an objection by learned counsel for the respondent that the factual aspect cannot be attended to in this petition and it will be difficult to form a different view on reappreciation of the factual aspect of the case. These factual and legal questions can course be better entertained and adjudicated upon in appeal before the Tribunal. Now when the tribunal has been constituted and functioning and the appeal of the petitioner can be decided and also as the writ petitions were entertained at the time when the tribunal did not exist, it will be appropriate that these writ petitions be sent to tribunal concerned for entertaining the same as appeals and for decision on merits in accordance with law by taking sympathetic view on the question of limitation as the matter remained pending in this Court and also as the tribunal did not function at the relevant time.
8. For the reasons above, it is directed that the two writ petitions be sent to the tribunal, constituted under Section 46 of Sales Tax Act, 1990 for decision thereof, on merits and in accordance with law after hearing the parties concerned by treating the same as appeals. Office shall sent the writ petitions to the concerned tribunal by retaining copies of the same. Disposed of in the above terms.