A two-member bench comprising Justice Muhammad Iqbal Kalhoro and Justice Agha Faisal disposed of SSTRA filed by Commissioner Inland Revenue, Zone-IV against Byco Petroleum Pakistan Limited, details judgment was released dated May 16, 2022
According to the court verdict “The facts common to all references under scrutiny herein are that during the period when the circular debt crisis was at its pinnacle in Pakistan, precipitating a calamitous liquidity crunch, entities in the directly hit petroleum sector filed returns, along with payment of tax, slightly late and consequently show-cause notices were issued thereto, seeking recovery of default surcharge and penalty, since the correct quantum of tax had admittedly been paid.
The show-cause notices culminated in assessment orders, whereby the respondents were found liable for payment of default surcharge and penalty. In appeal, the Commissioner Appeals set aside the imposition, holding that there was no cause demonstrated for imposition of default surcharge and / or penalty.
The said findings were also maintained by the learned Appellate Tribunal Inland Revenue. Aggrieved by the concurrent findings, i.e. that of the Commissioner Appeals and the Appellate Tribunal Inland Revenue, the applicant department has preferred these references.
Per applicants’ learned counsel3 the imposition of default surcharge and penalty was merited as the same amounted to a civil liability, hence, impervious to the admitted absence of mens rea; it was not an offence per section 53 of the Pakistan Penal Code 1860; and finally that the pertinent impositions were on account of a strict liability offence , therefore, the absence of mens rea was immaterial. The respondent/s’ learned counsel6 supported the concurrent orders, being that of the Collector Appeals and the learned Appellate Tribunal Inland Revenue, and expounded that no default surcharge / penalty could be imposed in the manifest absence of demonstrable intent to not pay tax and / or a mala fide refusal to pay tax. It was concluded that the orders under scrutiny merited no interference in the reference jurisdiction.
In view of the reasoning and rationale contained herein, duly bound by the enunciation of law expounded by the earlier Division Bench judgments of this Court in Tianshi International23 read with China Power24 per the Multiline25 principles, the question reframed for determination by this Court is answered in the negative, hence, in favor of the respondent/s and against the applicant department. These reference applications stand disposed of in the above terms.
A copy of this decision may be sent under the seal of this Court and the signature of the Registrar to the learned Appellate Tribunal Inland Revenue, as required per section 47(5) of the Sales Tax Act, 1990. The office is directed to place copies hereof in each of the connected references”.
