' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to. Appeal has been filed against the judgment, dated 12th September, 2001 passed by High Court of Sindh, Karachi whereby Sales Tax Appeal filed by petitioner has been dismissed being barred by time.
2. In view of the fact that short law point is involved in this case, therefore, facts of the case are not being mentioned in detail except noting that in pursuance of a show-cause notice No,16(166)/ST/W/Tech/98/3192, dated 8th October, 1998 the petitioner/Collectorate of Sales Tax
(West) Karachi passed order against the respondent in the following terms:-- ' "After due scrutiny of the case I conclude that input adjustment taken by the respondents on their return filed for registration No,11-00-3402-004-73 was not admissible. As importers they were not entitled to claim adjustment of their stocks prior to the date of registration as per prevalent Sales Tax Law. Similarly input - adjustment taken against the bill of entry prior to their registration is also held inadmissible. Input adjustment on account of invoices issued in the name of M/s. National Warehouse is also held inadmissible. 1% further tax not paid on clearance to unregistered persons is also held payable. Therefore, sales tax amounting to Rs,1,62,53,750 and additional tax Rs,16,66,009 (revisable at the time of final payment is ordered to be paid forthwith. The case is disposed of accordingly."
3. The above order was maintained in Appeal No,178 of 1999 on 20th November, 1999, however, the Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench, Karachi vide order dated 25th October, 2000, set aside the above noted two orders, after condoning lapses committed by the respondent. Petitioner-department received copy of the said order on 15th November, 2000, whereas appeal was filed on -15th January, 2001, within 61 days, against the stipulated period of 60 days. However, for seeking condonation of delay of one day, an application being Civil Miscellaneous No,1312 of 2001 under section 5 of the Limitation Act was moved. The learned High Court vide order dated 6th June, 2001 granted the application for condonation of delay, subject to all just legal exceptions and formulated following legal point for consideration:- ' "Whether the learned Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench is justified in condoning the violation of the statutory Notifications and rules issued by the Government of Pakistan/Central Board of Revenue regarding claiming of input credit adjustment of sales tax under the Sales Tax Act, 1990?"
' After having framed the above question, pre-admission notice was given to the respondent and matter came up for hearing on 12th September, 2001, whereby appeal was dismissed being barred by time. As such instant petition for leave to appeal has been filed.
4. Notice was issued to respondent on 8th May, 2001 through Additional Collector-II (West), Collectorate of Sales Tax and Central Excise, Karachi. According to report, received in the office, notice has been duly served on the respondent but no one has appeared on its behalf.
5. Learned counsel appearing for petitioner contended that learned Division Bench of the High Court of Sindh has illegally dismissed the appeal filed by petitioner on the ground of limitation, in view of its own earlier order, dated 6th June, 2001 whereby application for condonation of delay bearing No,1312 of 2001, has been allowed subject to all just legal exceptions. In addition to it, he further contended that there was delay of only one day in filing of appeal because last date of filing of appeal was 14th January, 2001 when the Court was closed due to Sunday as such appeal was filed on following day i.e, 15th January, 2001 within time in terms of section 4 of the Limitation Act. Thus according to him the petitioner's department has been non-suited for the reasons not sustainable in law.
6. After hearing learned counsel for petitioner, following points emerge for examination:--
(i) As to whether learned Division Bench of the High Court non-suited the petitioner contrary to its own order, dated 6th June, 2001, whereby delay in filing of appeal was condoned subject to all just exceptions, while disposing of C.M.A. No,1312 of 2001.
(ii) As to whether petitioner's appeal was within time according to the provisions of section 4 of the Limitation Act, which provides that if period of limitation had expired on a day when the Court was closed, a suit, appeal or application will be instituted/preferred or made on the day when the Court reopens?
(iii) As to whether the impugned judgment runs contrary to observation made by this Court in the case of Ikramullah and others v. Syed Jamal (1980 SCMR 374) wherein it has been observed that a plaintiff or an applicant should not be Prejudiced by the act of the Court namely its closure on the day when the limitation expires?
' Thus leave to appeal is granted.