' The respondent, a registered person, was charged to have field their monthly sales tax return for the month of December, 1996 late by one day and therefore, was found to have contravened the provisions of section 26 of the Sales Tax Act, 1990 requiring filing of monthly return by 20th of every month.
2. During the proceedings initiated thereupon it was found that although the return was filed on 19- 1-1997 alongwith a pay order for Rs,856773 yet the same was received back after clearance on 21- 1-1997. The contention of the respondent that the delay of one day was on the part of the clearing Bank was not accepted by the Department. Therefore, it was burdened with a penalty of Rs,5000 alongwith additional sales tax at a rate of 5% of the tax due for the tax period. The order in original was maintained by the Collector of appeals for almost similar reasons.
3. On further appeal a Division Bench of the Tribunal found that the sale tax return cum challan for the month of December, 1996 was deposited with the National Bank of Pakistan, Dina Nath Branch, Lahore on 19-1-1997 alongwith the pay order of the amount of tax, dated 18-1-1997. According to the learned Members of the Tribunal the concerned Bank Manager confirmed that the amount had duly been received in favour of the Collector do 20-1-1997. Accordingly, it was found that the assessee as a registered person had discharged his liabilities on 19-1-1997 and therefore, there was no basis for the department to proceed against him.
4. Through this appeal under section 47 of the Sales Tax Act, 1990 the department assails the said findings recorded by the Tribunal. However, we are not persuaded to interfere for two reasons;-- ' Firstly no question of law which is sine qua non for appeal to this Court under the said provisions of the Act has arisen out of the order of the Tribunal.
' Secondly Sub-rule (4) of rule 5 of Filing of Monthly Return Rules, 1996 was wrongly invoked in this case.
' In fact the provisions of that rule were circumvented to hook the registered person. Sub-rule (4) of rule 5 of these rules clearly states that where payments are received through a pay order or bank draft the Bank shall affix two stamps on the return indicating the date on which the pay order or bank draft was received for clearance and the date on which it was cleared for payment by transfer. The respondent-registered person made payment of tax through a Pay Order bearing No,DD/ACB 205286, dated 18th January 1997 of Askari Commercial Bank Limited. The learned Members of the Tribunal noted that the Bank Manager had confirmed that the amount was duly received on 20-1-1997. Therefore, the appellant could not be blamed if the National Bank had noted a wrong date.
5. We are also in agreement with the observation of the Tribunal that the Revenue unnecessarily extended its strong arm to punish the registered person for no fault at all on its part. The Revenue acting through the concerned officer ought to have ignored the delay of one day even it if had actually happened. It is not unusual in dealings between the two Banks. The registered person had paid the tax on the day it purchased the said pay order from Messrs Askari Bank Limited and submitted the same alongwith the return. The remission of the amount from one bank to the other was more in nature of a ministerial act.
6. We are constrained to observe that a tax Collector should be very slow in making resort to penal provisions of the Act. These provisions, it hardly needs, emphasis, are not meant to raise Revenue.
Their purpose is to deter a conscious default. Before going for a penal action in such like situation an honest tax Collector should also keep in mind the delay of weeks, months and even years which usually take place in cases of refund due to the tax payers.
7. For these reasons we are of the view that this departmental appeal should not have been preferred at all.
8. Dismissed in limine.