SC larger bench confirms decision in Super Asia case
ISLAMABAD: A larger bench of the Supreme Court confirmed the decision in the Super Asia case, and affirmed the principles enunciated therein as the correct law on all points.
'The decision of this Court in Collector of Sales Tax, Gujranwala and others v Super Asia Mohammad Din and others 2017 SCMR 1427, 2017 PTD 1756 is hereby confirmed and the principles enunciated therein are affirmed as correctly stating the law on all points,' said the judgment of five-judge bench.
The Court dismissed the review petitions against Super Asia, and remitted the appeals and leave petitions to the SC office to be fixed in the normal course before respective benches, there to be decided in light of this judgment and such other questions of law (if any) as may have been raised therein by the respective parties and/ or for which leave to appeal may be, or has been, granted.
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A five-member larger bench, headed by Justice Munib Akhtar was constituted to consider whether the judgment of a three-member SC bench in Super Asia is correct. The decision of three-judge bench was concerned with certain provisions of the Sales Tax Act, 1990, and held the same to be mandatory and not directory.
The principles of law enunciated in the judgment obviously, in terms of well settled rules of precedent as embodied, in particular, in Article 189 of the Constitution, have a much broader application than merely the interpretation of the 1990 Act.
The question before the Court was whether the periods provided for in the first proviso to subsection (5) of Section 11 of Sales Tax Act were mandatory or directory?
The Court held that the relevant provisions were mandatory and not directory; therefore, an order made by the adjudicating officer/ authority beyond the stipulated periods was, subject to any permissible application of Section 74 of the Act, 'invalid'.
The principles enunciated in Super Asia came up for application sometime thereafter in a case before another three-member bench, which expressed certain reservations with the findings recorded in Super Asia, in an order dated 20.03.2018 and reported as Wak Limited v Collector Central Excise and Sales Tax and others 2018. In view of that a larger bench was constituted to consider the correctness or otherwise of the principles enunciated in Super Asia, and whether that determination was correct or not.
The larger bench judgment noted that in the relevant provisions, the term 'shall' is used twice: firstly, in relation to the initial period in which the order-in-original is to be made and then in relation to the extension that may be granted by the Commissioner.
The power of extension is a statutory power conferred on a specified authority. Two points may be noted with regard thereto. Firstly, the Commissioner 'may' (and not 'shall') grant the same. In principle he may therefore refuse to do so. To put it differently, he has been granted discretion in this regard. In case he does so he is to record reasons in writing.
This is a condition attached to the exercise of the discretionary power and therefore, in terms of well settled principles, is itself a mandatory requirement. In other words, the exercise of the statutory power in favour of granting the extension would be unlawful without the recording of reasons. The reverse is not necessarily true: if he refuses to grant the extension he may record reasons but is not bound to do so. Secondly, the period for which the extension is to be granted 'shall in no case' exceed the stipulated number of days.
This is the second 'shall' that has to be reckoned with. But it is to be noted that it is coupled with strong negative or prohibitory language: 'in no case'. As an initial observation, it appears that these words provide what may be described as a hard edge to the second use of 'shall'.
They seem to constitute a definite boundary that cannot be crossed. In other words, they appear to convey a sense of finality and conclusiveness. Periods provided in statutes (or in exercise of delegated legislation) within which something is (or, more rarely, not) to be done are usually just that: a specific duration of time. This coupling with strongly negative language is unusual and appears to indicate, even on a bare textual consideration, that an unbreachable limit is indicated.
Copyright Business Recorder, 2025
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