Latest news with #1990Act
Business Recorder
3 days ago
- Business
- Business Recorder
Sec 179(4) Customs Act: Power of FBR to grant extension ‘narrower': SC
ISLAMABAD: The Supreme Court noted that the power of Federal Board of Revenue (FBR) under Section 179(4) of the Customs Act, 1969 to grant extension of time is much narrower and circumscribed. A three-judge bench, headed by Justice Munib Akhtar, ruled that while hearing an appeal of Director, Directorate General, Intelligence and Investigation (Customs) against the decision of the Sindh High Court (SHC), and dismissed it. Dr Farhat Zafar, representing the petitioner (DG Intelligence and Investigation (Customs) submitted that in this case an extension of time was granted by the FBR and therefore, the impugned decision of the SHC is not sustainable. She relied on paragraphs 11 and 12 of the judgment of larger bench of the Supreme Court, which upheld the principles laid down in the case of Collector of Sales Tax, Gujranwala and others v Messrs Super Asia Mohammad Din and Sons and others 2017 SCMR 1427 (Super Asia). SHC judgment: SC reserves verdict on DG Customs Valuation's pleas The court noted that these paras dealt with Section 74 of the Sales Tax Act, 1990, and considered the possibility of the grant of an extension of time in terms thereof. Section 74 was held to apply in terms as stated in para 12 of the judgment in Super Asia. The judgment said this matter (extension of time) has arisen under the Customs Act, 1969, which Section 179 (4) says; 'The Board shall have the powers to regulate the system of adjudication including transfer of cases and extension of time-limit in exceptional circumstances.' The court noted that the power to grant an extension by the Board under Section 179(4) of the Customs Act, 1969, is circumscribed, and is to be exercised only in 'exceptional circumstances'. On the other hand, Section 74 of the 1990 Act provides that the Board is empowered to grant an extension to the extent found 'appropriate'. The court said that there is an obvious and clear difference between the two provisions; the power under Section 179(4) is much narrower and circumscribed. Therefore, the paragraphs of Super Asia sought to be relied upon by counsel for the petitioner have no relevance. It stated that the Larger Bench has also made some observations with regard to Section 74 of the Sales Tax Act, 1990. The judgment also said that, on a query from the Court, the counsel for the petitioner has candidly stated that the permission/ letter of extension that was granted by the Board was not placed on the record before the Appellate Tribunal. The judgment said that indeed, this was specifically noted by the Tribunal in its order; i.e., 'However, the plea taken by the respondents is that they have taken approval from FBR as mentioned in Section 179(4) but no such approval was placed before the Tribunal'. The court noted that the matter came before it from a tax reference and it is well established that beyond the stage of the Appellate Tribunal, it is only questions of law that can be taken to the High Court. It is also well settled that the record on the basis of which the questions of law can be decided is in terms of the record as it stood before the Appellate Tribunal. The judgment said that record cannot be added to and certainly not on a point that requires factual determination. Since the position is that the FBR letter by which it is claimed extension of time was granted by the Board was never placed on the record before the Appellate Tribunal, it is impermissible for any reliance to be placed on the same in this Court. The Court; therefore, declined to entertain this point, saying; 'Any departure from the well settled position would allow a party to a tax reference to alter the record either before the High Court or this Court which is not permissible.' Copyright Business Recorder, 2025
Business Recorder
18-05-2025
- Politics
- Business Recorder
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. Review plea against apex court verdict: SC rules on Section 45B(2) of ST Act provisos 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
