' In this further appeal under section 47 of the Sales. Tax Act, 1990 following questions of law are claimed to have arisen out of an order recorded by the Customs, Excise and Sales Tax Tribunal, Lahore Bench on 14-1-2002:--
(i) Whether findings of mala fide is essential for imposition of penalty and additional tax under sections 33 and 34 of the Sales Tax Act, 1990 (the "Act")?
(ii) If the answer to the above question is in the affirmative, then should the Hon'ble Tribunal or the Adjudicating Officer not have given findings on this point?
(iii) Whether additional tax is to be calculated on the basis of compound interest or simple interest?
2. The appellant is a registered person. Proceedings against him were initiated on the report received from another Wing of the Revenue that he had evaded sales tax amounting to Rs,8,51,297 during the year 1996-97 and 1997-98 by misdeclaring the value of the taxable supplies. The assessee was confronted with the fact that the value indicated on sales tax invoices was less than the actual receipts issued to the customers during that period.
3. Before the Adjudicating Authority it was claimed that the expenses like freight charges etc. Were incurred by the appellant on behalf of the customers and therefore, these could not be considered part of value of supplies. The authority however, disagreed. Based upon the definition of "value of supply" as contained in section 2(46) of the Act it was concluded that value of supplies had to mean all amounts including duties and taxes billed and received by the supplier. Also it was found that in the present case all ancillary expenses were billed in respect of each supply by the registered person and therefore, these had to be considered as a part of the value of supply.
Accordingly short payment of sales tax at Rs,9,51,297 was directed to be paid alongwith additional tax under section 34 of the Act. Also a penalty of Rs,42,565 was imposed under section 33(2)(cc) of the Act.
4. Learned Tribunal on first appeal -allowed partial relief by reducing the amount of additional tax though the amount of penalty was maintained. Earlier it was found that the appellant did not contest his liability to pay the amount of sales tax assessed against him. The operative part of the order of the Tribunal reads as under:-- "Since the learned counsel has frankly admitted the liability of the principal amount of sales tax, out of which, according to him, .His clients have by this time even voluntarily deposited about half of it in the Government treasury for the department, we consider it as an extenuating circumstances and reduce the amount of additional tax (chargeable till the payment of the, entire principal amount) to one half but we are not inclined to decrease the amount of penalty?
5. After hearing the learned counsel for the parties we are not inclined to entertain the appeal. In the first place, the operative part of the order indicates that none of the legal issues now being proposed in the form of questions were ever raised before nor adjudicated upon by the Tribunal. It is a settled proposition that a question of law can be said to have arisen out of an order of the Tribunal only if such question was duly raised and ruled upon by them or else it necessarily arises as a consequence of their order.
6. It will be seen that the provisions of section 47 of the Sales Tax Act, 1990 providing for appeal to this Court are similar to those introduced in the late Income Tax Ordinance, 1979 as section 136 w,e,f, 1-7-1997. These provisions were subsequently repealed on 30-6-2000. During the period these provisions were in force, in a case reported as tram Ghee Mills v. Income Tax Appellate Tribunal (1998 PTD 3835) this Court found that even after amendment in the provisions the appellate jurisdiction conferred by the amended provisions were not different from the reference jurisdiction earlier enjoyed by this Court under section 136 of that Ordinance. Since the said amended provisions in the late Income Tax Ordinance, 1979 and those contained in Sales Tax Act, 1990 as section 47 are identical, same rule of interpretation needs to be applied.
7. It may also be noted that reference jurisdiction of this Court is different from the appellate jurisdiction as interpreted by their Lordships B of the Hon'ble Supreme Court in re: The Lungla (Sylhet), Tea Co. Ltd. v. Commissioner of Income-tax, Dacca Circle, Dacca (1970 PTD 872). In that case the Hon'ble Supreme Court held that every question of law need not be referred to the High Court and only a question having some substance needed to be so referred.
8. The three questions as reproduced above otherwise do not raise a substantial legal controversy between the parties and therefore, we will decline to answer.
9. In limine.