PLJ 2023 Quetta 27 (DB)
Present : MUHAMMAD HASHIM KHAN KAKAR AND ABDUL HAMEED BALOCH , JJ.
COMMISSIONER INLAND REVENUE ZONE -I, REGIONAL TAX OFFICE, QUETTA--
Applicant
versus
M/s. GHAZI STEEL INDUSTRIES (PVT) LIMITED, QUETTA --Respondent
S.T.R. Appln. No. 4 of 2021, decided on 22.6.2022.
Sales Tax Act, 1990 (VII of 1990) --
----Ss. 3(1A), 6, 11(2), 26, 33(13), 34 & 47--Non -payment of further
tax--Supplies made to unregistered persons --Show -cause notice-- Order for further tax with
default charge --Recoverable p enalty --Appeal --Accepted --Question of whether respondents are
liable to pay further tax under Section 3(1A) of act or not --Challenge to --Provisions of sub-
section (1 -A) only apply where taxable supplies are made to a person who has not obtained
registratio n number and shall be in addition to sub- sections mentioned in (1 -A)--Respondent
does not pay any sales tax on supply of final products being produced by appellant but sales tax
liability is discharged in form of ten and half rupees per unit of electricity consumed--Appellant
is not paying sales tax-- It will be unreasonable and irrational for Applicant Department to allege
that appellant is liable to payment of further tax when appellant does not pay any sales tax under
either of sub- Sections of Section 3--No legal or factual infirmity in orders of CIR and Tribunal
our answer to proposed questions is in negative --Tax reference dismissed.
[Pp. 32 & 33] A, B, C & D
2016 PTD 648 ref.
Syed Iqbal Shah, DAG assisted by Mr. Khalid Aziz , Assistant Director, RTO, f or Applicant.
M/s. Aamir Rana and Arif Achakzai , Advocates for Respondents.
Date of hearing: 3.6.2022.
JUDGMENT
Muhammad Hashim Khan Kakar, J.--This Sales Tax Reference Application has been filed
under Section 47 of the Sale Tax Act, 1990 (hereinafter refe rred to as the “Act”) by the
Department and the questions of law stated to have arisen out of order STA Nos. 321, 321- A and
321-B/KB/2017, dated 03.05.2021 passed by the learned Appellate Tribunal Inland Revenue of
Pakistan, Karachi (hereinafter referred t o as the “Tribunal”) proposed for our consideration are as
follows:
“1) Whether on the facts and circumstances of the case learned Appellate Tribunal was
justified to hold that the registered person has discharged sales tax liability under the provision
of Rule 58H of the Sale Tax Special Procedure Rules, 2007 and therefore is not required to pay
further tax under Section 3(1- A) of the Sales Tax Act, 1990 whereas further tax as per Section
3(1-A) is equally applicable to the sub Section 6 of Section 3 of the sales Tax Act, 1990
authorizing the Board to collect tax under various special procedure Rules, including Rule 58H of the Sale Tax Special procedure Rules, 2007.
2) Whether on the facts and in the circumstances of the case learned Appellate Tribunal was
justified in holding that the registered person is not liable to pay further tax as sales tax liability
is discharged under the provisions of Rule 58H of the Sale Tax Special Procedure Rules, 2007, whereas as per the APEX Court’s latest decision in the case of M/s. Zak Re -Rolling Mills (Pvt)
Ltd. vs. ATIR reported as 121 Tax 201and 2020 PTD 382, it has been held that even if the sales tax is paid under a specific procedure envisaged in Rule 58H of the Sale Tax Special Procedure Rules, 2007, the registered person is not exempt from levy of further tax under Section 3(1- A) of
the Sales Tax Act, 1990. Decision and interpretation of the Supreme Court in term of Article 189 of the Constitution, are binding on all Courts in Pakistan. It has been held that even obiter dictum of Supreme Court is binding on all Courts in Pakistan. Reliance is placed on Shaheen Steel Furnace Gujranwala vs. Government of Pakistan reported as 2009 PTD 722 (H.C Lahore).”
2. The facts, in brief, are that that the Respondent/Registered Per son is a Private Limited
Company, engaged in the business of steel re -roller and steel -melter and paying sales tax under
the provisions of Chapter XI of the Sales Tax Special Procedure Rules, 2007 (hereinafter referred to as the Rules 2007).After perusal of its sales tax returns the Additional Commissioner
Inland Revenue (“ADCIR”) issued show -cause notices to the Respondent/Registered Person on
the ground that further tax under Section 3(1- A) of the Act had not been paid on supplies made
to unregistered per sons. The ADCIR shown his intention to charge and recover further tax under
Section 11(2) of the Act for alleged violation of Section 3(1A), 6 and 26 of the Act. The reply submitted by the Respondent/Registered Person could not find favour with the ADCIR a nd he
proceeded to pass the order dated 05.05.2017 holding further tax amounting to Rs. 15,385,298/ -
along with default surcharge under Section 34 and 100% of tax as penalty under Section 33(13) of the Act as recoverable from the Respondent/ Registered Per son. Feeling aggrieved, the
Respondent/Registered Person filed appeal before the learned CIR (Appeals) who vide order in appeal dated 09.06.2017set -aside/cancelled the treatment accorded by the ADCIR. Being
dissatisfied with the order of the learned CIR(Appeals), the Applicant/Department filed second appeal before the Appellate Tribunal.
3. The learned Tribunal after examining the facts of the case and considering relevant provisions of the Act and Rules, 2007 upheld the order in appeal passed by the learne d CIR (Appeals) and
rejected appeal filed by the Applicant/Department with following observations:
“18. Keeping in view the above findings of Honorable High Courts and in the light of above discussion and the arguments given by rival parties and keeping in view the facts& circumstance of the case, and considering the legal position, we are of the view that the Registered Person discharged liability of Sales tax with their monthly electricity bills by
complying with the provisions of Rules 58H of the Sales T ax Special Procedure Rules,
2007 which has been issued by the Federal Government under Special Procedure, in
terms of Section 71 of the Sales Tax Act, 1990 in a manner and mode and at the rate, other than provided under Section 3(1) of the Act and Section 71 of the Act has an overriding effect on other provisions of Act, therefore, Registered Person is not required
to charge and pay any additional tax in terms of Section 3(1- A) of the Act. “
4. Learned counsel for the applicant/Department assailed the order of the learned Tribunal and
argued that the respondent has been wrongly allowed exemption of further tax under Section 3(1-A) of the Act which was provided to steel melters by the Federal B oard of Revenue through SRO
No. 585 (l)/2017 dated 01- 07-2017 with effect from 01- 07-2017whereas the tax periods
involved pertain to years 2013 to 2O16.He argued that said SRO No. 585 (1)/2017, dated 01- 07-
2017 did not have any retrospective effect. The l earned Counsel also referred to the judgment of
the Honorable Supreme Court which has been reported as 2020 PTD 382 = 121 Tax 201 in the case of M/s. Zak Re -rolling Mills (Pvt) Ltd. vs. ATIR wherein it has been held by the Apex Court
that even if sales tax is paid under a specific procedure envisaged in Rule 58- H of the Rules
2007, the registered person is not exempt from levy of further tax under Section 3(1A) of the Act. The learned counsel argued that in terms of Article 189 of the Constitution the said
judgment of the Apex Court is binding on all Courts in Pakistan therefore the questions of law
submitted may be decided in affirmative.
5. Learned counsel of the Respondent/Registered Person supported the orders of the CIR (Appeals) and the Tribunal. The l earned counsel contended that the Respondent/Registered
Person is not liable to pay further tax under Section 3(1- A) of the Act as is sought to be
recovered by the Applicant/Department. He explains that the Respondent/Registered Person has been paying sale s tax under Chapter XI of the Rules, 2007 which provides special procedure for
payment of sales tax by steel melters, steel re- rollers and ship- breakers. The said procedure has
been enacted under powers conferred by Section 71 read with Section 3(6) of the Act on the
Federal Government by notification in the official gazette and prescribes special procedure for the scope and payment of tax, registration, book keeping and invoicing requirements and returns in respect of supplies by steel melters. Thus, under rule 58H of Rules, 2007 every steel melter,
steel re- roller, composite unit of melting, re -rolling and MS cold drawing and composite unit of
steel melting shall pay sales tax at the rate prescribed per unit of electricity consumed for the production of st eel billets, ingots and mild steel (MS) products and which will be considered as
the final discharge of sales tax liability for the registered persons. Therefore, the learned Counsel claims that the Respondent/ Registered Person has discharged the final li ability of Sales Tax in
terms of Rules 2007 and is not required to pay any further tax at the time of supply in terms of Section 3(1- A) of the Act, as demanded through the impugned order in original passed by the
ADCIR. Learned Counsel has further contende d that the special procedure prescribed in terms of
Section 71 of the Act, has an overriding effect, both in respect of levy of Sales Tax under Sections 3(1) and 3(1 -A), hence no further or additional tax is payable after having paid Sales
Tax in terms of Rules 2007. The learned counsel placed reliance on the judgment of the Honorable Lahore High Court titled as M/s. Byco Steel Re- rolling Mills (pvt) Ltd. vs. FOP &
others in W.P. No. 448/2016 and another judgment of the Honorable Sindh High Court in CP
No. 3025/2014 dated 29- 09-2015.
6. We have heard arguments from both the parties, carefully considered the judgments referred
and put -forth before the bench and have also perused the available record including orders of the
authorities below. The core issue involved is as to whether the Respondent/Registered Person is liable to pay further tax under Section 3(1- A) of the Act or not? Undisputedly, the Respondent/
Registered Person is covered by Chapter -XI of the Rules, 2007 and has been paying its sales tax
regularly in accordance with the special procedure prescribed under said Rules. To resolve the
controversy, it is expedient to reproduce hereunder the relevant provisions of law which are Sections 3(1), 3(1- A), 3(6), 71 of the Act and Rule58H of the Rules, 2007: -
3. Scope of tax.--(1) Subject to the provisions of this Act, there shall be charged, levied and paid a tax known as sales tax at the rate of 5 [seventeen] per cent of the value of --
(a) taxable supplies made by a registered person in the course or furt herance of any taxable
activity carried on by him; and
(b) goods imported into Pakistan, irrespective of their final destination in territories of
Pakistan.
(1A) Subject to the provision of sub section (6) of Section 8 or any notification issued there under, where taxable supplies are made to a person who has not obtained registration number, there shall be charged, levied and paid a further tax at the rate of
three percent of the value in addition to the rate specified in sub Sections (1), (1B), (2),
(5), (6) and Section 4.
Provided that the Federal Govt. may, by notification in the official Gazette,
specify the taxable supplies in respect of which the further tax shall not be charged, levied and paid.
(6) The Federal Government or the Board may, in li eu of the tax under sub- section (1),
by notification in the official Gazette, levy and collect such amount of tax as it may deem fit on any supplies or class of supplies or on any goods or class of goods and may also specify the mode, manner or time of pay ment of such amount of tax.
Section 71. Special procedure.--(1) Notwithstanding anything contained in this Act, the Federal Government may, by notification in the official Gazette, prescribe special procedure for scope and payment of tax, registration, book keeping any invoicing requirements and returns, etc. in respect of such supplies as may be specified therein.
(2) *****
(3) Notwithstanding anything contained in this Act or any other law for the time being in force or any decision of any Court the trade enrolment Certificate schemes immediately in force before the commencement of the Finance Act, 1999, shall be deemed to be validly made under this Act.
Rule 58H of the Rules, 2007 provides that: -
“58H. payment of tax.- (1) Every steel -melter, steel re -roller, composite units of melting,
re-rolling and MS cold drawing and composite unit of steel melting, rerolling (having a
single electricity meter), excluding units operated by sugar mills or other persons using
self-generated electricity shall pay tax at t he rate of tenant half rupees per unit of
electricity consumed for the production of steel billets, ingots and mild steel (MS) products excluding stainless steel, which will be considered as their final discharge of
tax liability .”
7. From the perusal of t he above provisions of law, it can be seen that Section 3 is the charging
section which levies a tax known as sales tax at a certain rate of the value of taxable supplies or
goods imported into Pakistan. Sub- section(1A) of Section 3 merely provides that where taxable
supplies have been made to a person who has not obtained registration number, there shall be charged and levied a further tax over and above the sales tax specified in sub- section (1), (IB),
(2), (5), (6) and (4). Therefore, the provisions of s ub-section (1 -A) only apply where taxable
supplies are made to a person who has not obtained the registration number and shall be in addition to sub- sections mentioned in (1- A). Similarly provisions of sub- section (6) of Section3
of the Act confers power t o the Federal Government or the Federal Board of Revenue to levy tax
in lieu of sub- section (1) of Section 3 on any supplies or class of supplies or any goods or class
of goods and may also specify the mode, manner or time of payment of such amount of tax.
8. Section 71 begins with a non obstante clause and therefore, if a procedure is provided by the
Board then that procedure will take precedence over the other provisions of the Act and the
payment of sales tax shall be governed by the special procedure s o provided. More importantly
that will constitute a final discharge of sales tax liability on the part of such registered person. By the rules referred above, i.e. 58H, the rate of sales tax to be paid under the special procedure has
also been prescribed as ten and half rupees per unit of electricity consumed. Therefore, not only that Chapter -XI of Rules, 2007 prescribes a special procedure for the payment of sales tax but
also the rate has been given in the special procedure which will be applicable to the appellant and others like them and it will also be considered as final discharge of sales tax liability.
Admittedly, the Respondent/ Registered Person does not pay any sales tax on the supply of the
final products being produced by the appellant but sales tax liability is discharged in the form of
ten and half rupees per unit of electricity consumed. Therefore, the appellant is not paying sales tax in terms of sub- section (1) of Section 3 on the taxable supplies being made by them. Thus, it
will be unreaso nable and irrational for the Applicant Department/Revenue to allege that the
appellant is liable to the payment of further tax when the appellant does not pay any sales tax
under either of the sub- Sections of Section 3.
9. Identical issue came before the H on’ble Lahore High Court, Lahore in the case titled as M/s.
Byco Steel Re- rolling Mills (Pvt) Ltd. vs. FOP and others W.P No. 448/2016 wherein vide order
dated 21.03.2018, the show -cause notice issued by the Department to the petitioner was declared
ultra vires by holding that the petitioner, undisputedly, had been paying the sales tax under
Chapter -IX of the Sales Tax Special Procedure Rules, 2007 and in terms of rule 58H of the said
Rules, the payment of sales tax shall be considered as the final discharge of sales tax liability of
the registered person under the Act. The petitioner was not obliged to pay further tax under
Section 3(1- A) of the Act.
10. A somewhat similar question was also posed before the Hon’ble Sindh High Court in the case titled as Dig icom Trading (Pvt.) Ltd. vs. FOP etc, reported as 2016 PTD 648 wherein it was
held that:
“7 ……………Once the mechanism has been prescribed by the Federal Government by issuance of a Notification in terms of various provisions of the Act, including Section
12(2)(a) of the Act ibid, the question of payment of any additional tax in terms of Section
3(1)(A) of the Act, for supply of goods to unregistered person(s) does not arise. The provision of Section 3(1) (A) could only be invoked in respect of goods which are being
charged Sales Tax under Section 3(1) of the Sales Tax Act, 1990 at the rate specified therein at ad- valorem basis which is presently@17%. Once the mode and manner and
the rate of Sales Tax has been altered, modified or fixed by the Federal Government either through sub- sections (2)(b) & (6) of Section 3, read with Section 8(1) (b) of the
Sales Tax Act, 1990, as well as under Section 13, no further tax can be demanded once the liability of Sales Tax is discharged on the basis of a special procedure as
contemplated under S.R. O.460(1)/2013.”
11. Regarding Applicant/Department reliance on the judgment of the Honorable Supreme Court cited as Civil Petition No. 2727 of 2019 in the case of M/s. Zak Re -Rolling Mills (Pvt) Ltd. vs.
ATIR & others dated 17.10.2019 we agree with the findings of the Tribunal. It is evident that the
Apex Court has dismissed the petition of the petitioner on the ground that the points raised
before the Supreme Court were not raised in the Reference Application before the High Court
and the same were not discussed and considered in the judgment of the High Court. Under
Article 185(3) of the Constitution, the Apex Court only deal with questions of law that have been
urged before the forum below
12. For what has been discussed above and by respectfully following the judgments of the
Honorable High Courts, we find no legal or factual infirmity in the orders of the CIR(Appeals) and the learned Tribunal therefore our answer to the proposed questions is in negative i.e . against
the applicant Department and in favour of the respondent -taxpayer/registered person.
13. A copy of this order is directed to be sent to the Registrar of the learned Appellate Tribunal
under the seal of this Court in terms of sub section (5) of Section 47 of the Sales Tax Act, 1990.
(Y.A.) Tax reference dismissedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.