SECRETARY, REVENUE DIVISION, ISLAMABAD VS ZAHEERUDDIN
2002 P T D 2716
[Federal Tax Ombudsman]
Before Justice (Recd. J Saleem Akhtar, Federal Tax Ombudsman
SECRETARY, REVENUE DIVISION, ISLAMABAD
Versus
ZAHEERUDDIN and others
Review Application No.1 of 2002 in Complaints Nos. 582 to 603, 663 to 670, 1233 and 1236 of 2001, decided on /01/.
nd
April, 2002. (a) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)‑‑‑
‑‑‑‑Ss.9 & 2(6)‑‑‑Documentation of National Economy Ordinance (XV of 2000), Preamble‑‑‑Cases of survey‑‑‑Jurisdiction of Federal Tax Ombudsman‑‑‑Contention was that jurisdiction of the Federal Tax Ombudsman extended to relevant legislation as defined by S.2(6) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 and as Documentation of National Economy Ordinance, 2000 did not fall within the relevant legislation no jurisdiction could be exercised in this regard thus cases of survey did not fall within the jurisdiction of the Federal Tax Ombudsman‑‑‑Validity‑‑‑Federal Tax Ombudsman had been vested with jurisdiction under S.9 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 which provided that Federal Tax Ombudsman might; on complaint by any aggrieved person, or on a reference by the President, the Senate or the National Assembly, as the case may be; or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, investigate any allegation of maladministration on the part of the Revenue Division or any Tax Employee‑‑‑Jurisdiction of the Federal Tax Ombudsman extended to all acts of omission or commission of the Revenue Division or the tax employees which fell within the category of "maladministration"‑‑‑Under S.2(7) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 "Revenue Division" meant the administrative unit responsible for the conduct of business of the Federal Government in matters relating directly or indirectly with the collection of revenue from federal taxes, levy of taxes, duties, cesses or fees and declared as such by the Federal Government, and included all its subordinates and the Revenue Division and its agencies which were in any manner directly or indirectly responsible for collection and levy of federal taxes fell under the jurisdiction of the Federal Tax Ombudsman‑‑ "Tax employee" had been defined under S.2(10) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000, as an employee of Revenue Division and includes an officer and any other functionary serving in, or any office subordinate to the said Division‑‑‑All matters of maladministration committed by the Revenue Division, its subordinate offices, agencies and employees were governed by the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 and fell within the jurisdiction of Federal Tax Ombudsman‑‑‑Documentation of National Economy Ordinance, 2000 was intended to check and curb the practice of non‑reporting and under reporting of assets held, income earned, taxable activity carried out for which documentation was provided‑‑‑To begin with a survey was to be carried out by a team consisting of officials from the Departments working under Central Board of Revenue and such other persons as the Central' Board of Revenue might deem fit to include‑‑‑Members of Armed Forces were also to form part of all survey and registration activities‑‑‑Information collected through three forms as set in the First, Second and Third Schedules to Documentation of National Economy Ordinance, 2000 shall be deemed to be information collected for the purposes of assessment and determination of turn over, value or tax liabilities under the laws administered by the Central Board of Revenue‑‑‑Information collected through survey activity conducted by the team formed by the Central Board of Revenue could be used or utilized for the purpose of collection revenue and thus directly related to the duties performed by the Revenue Division‑‑‑In discharge of such duties under the Documentation of National Economy Ordinance, 2000 any maladministration as defined under S.2(3) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 was identifying the Federal Tax Ombudsman will have the power and authority to exercise his jurisdiction and proceed accordingly‑‑‑Under S.9(2)(b) of the Establishment of Office of Federal Tax Ombudsman Ordinance; 2000, the jurisdiction to investigate , or enquire was ousted in matters which related to assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, interpretation of law, rules, and regulations relating to such assessment, determination, classification or valuation in respect of which legal remedies of appeal, review or revision were available under the relevant legislation‑‑ Section 9(2)(b) imposed bar of jurisdiction in specified cases in which remedy, of appeal or review was available under the relevant legislation, therefore, the bar existed in respect of relevant legislation only‑‑ Documentation of National Economy Ordinance, 2000 was not included in the relevant legislation and there was no bar as pleaded by the Department‑‑‑Section 9(2)(b) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 could not be a bar to the jurisdiction if any maladministration was identified in the matters mentioned in S.9(2)(b) and the Federal Tax Ombudsman will have jurisdiction to investigate and provide redress in respect of maladministration and the objection to the jurisdiction had no force.
(b) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)‑‑‑‑
‑‑‑‑S.9‑‑‑Review petition against recommendation that ‑ the signatures against all the three items containing figures filled by the survey team could not be treated as an agreement with the assessee‑‑‑Validity‑‑ Review petition was rejected by the Federal Tax Ombudsman with the remarks that the recommendation was made after due consideration and with a conscious mind dealing with all the objections and pleas raised by the parties and there was no error apparent on the face of the record.
Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. PLD 1997 SC 865 rel.
Muhammad Nazim Saleem, Chief (Sales Tax), C.B.R.
Abdul Hameed Memon for Applicant.
ORDER
This consolidated review application has been filed by the Department in respect of recommendations made in Complaints Nos. 582 to 603, 663 to 670, 1233 and 1236 of 2001. All these complaints were disposed, of by the following single decision/recommendation dated August 16, 2001:
(i)Signatures against all the three items containing figures filled in by the Survey Team cannot be treated as an agreement with the assessee.
(ii)Where any‑ party objects to the veracity /correctness of the entries made during third survey, he must file such objection to the relevant Assessing Authority within a reasonable time who may take necessary action as provided by law.
(iii)Where any assessee does not object to the evaluation made by the Survey Team within a reasonable time from the date of decision, such evaluation shall be deemed to have been accepted by the assessee.
(iv)If the relevant authority recommends for stock‑taking and investigation, it shall be conducted by the Survey Team selected for this purpose and also representative of trade be associated with this exercise. The team shall prepare a comprehensive inspection report with full particulars and details copy of which be supplied to the assessee on the spot.
2. Mr. Nazim Saleem, learned representative for the Department referred to the Documentation of Economy Ordinance, 2000 and stated that the Government had made decision for documentation of economy in a bona fide and noble manner in order to curb the parallel and informal economy which was adversely affecting the economy of the country. It was creating unhealthy competition and disincentive to honest taxpayers: He also explained the aims and‑‑objectives of this Ordinance and the efforts made by Central Board of Revenue in making the entire exercise transparent and just.. He stated that in the larger interest of economy the survey held be allowed to continue because if in any classified case re survey is held the entire exercise will be futile. Mr. Nazim Saleem further stated that the cases of survey do not fall within the jurisdiction of the Federal Tax Ombudsman.
3. It seems appropriate to first deal with the issue of jurisdiction. According to the learned representative the jurisdiction of the Federal Tax Ombudsman extends to relevant legislation as defined by sub section (6) of section 2 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 (hereinafter referred to as Ordinance XXXV of 2000). Further that as Documentation of National Economy Ordinance, 2000 (herein after referred to as the Ordinance XV of 2000) does not fall within the relevant legislation no jurisdiction can be exercised in this regard. It is pertinent to note that during hearing of the complaint and in the reply submitted by the Department no objection to the jurisdiction was raised. They submitted to jurisdiction and now it is too late in the day .tp raise such plea by this review petition. Notwithstanding this fact I will consider the plea of jurisdiction on merits as well.
4. The Federal Tax Ombudsman has been vested with jurisdiction under section 9 of Ordinance XXXV of 2000. It provides that Federal Tax Ombudsman may on a complaint by any aggrieved person, or on a reference by the President, the Senate or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion investigate any allegation of maladministration on the part of the Revenue Division or any tax employee.
5. It is thus clear that the jurisdiction of the Federal Tax Ombudsman extends to all acts of omission or commission of the Revenue Division or the tax employee which fall within the category of `maladministration'. Under subsection (7) of section 2 of Ordinance XXXV of 2000 "Revenue Division" means the administrative unit responsible for the conduct of business of the Federal Government in matters relating directly or indirectly with the collection of revenue from federal taxes, levy of taxes, duties, cesses or .fees and declared as such by the, Federal Government, and includes all its subordinate departments, offices and agencies. It, therefore, clearly contemplates that where the Revenue Division and its agencies which are in any manner directly or indirectly responsible regarding collection and levy of federal taxes fall under the jurisdiction of, the Federal Tax Ombudsman. "Tax employee" has been defined under subsection (10) of section 2, as an employee of the Revenue Division and includes an officer arid any other functionary serving in, or any office subordinate to the said Division. Therefore in all matters of maladministration committed by the Revenue Division, its subordinate offices, agencies and employees are governed by Ordinance XXXV of 2000 and fall within the jurisdiction of Federal Tax Omhudeman.
6. Ordinance XV of 2000 is intended to check and curb the practice of non‑reporting and. under' reporting of assets held, income earned, taxable activity carried out for which documentation was provided. To begin with a survey is to be carried out by a team consisting of officials from the departments working under Central Board of Revenue and such other persons as the C.B.R. may deem fit to include. Members of Armed Forces are also to form part of all survey and registration activities. The information collected through three forms as set in the First, Second and Third Schedules to Ordinance XV of 2000 shall be deemed to be information collected for the purposes of assessment and determination of turn over, value or tax liabilities under the laws administered by the C.B.R. It, therefore, follows that the information collected through survey activity conducted by the team formed by the Central Board of Revenue can be used or utilized for the purpose of collection of revenue and thus directly relate to the duties performed by the Revenue Division. If in discharge of such duties under Ordinance XV of 2000 any mal‑administration as defined under subsection (3) of section 2 of Ordinance XXXV of 2000 is identifying the Federal Tax Ombudsman will have the power and authority to exercise his jurisdiction and proceed accordingly.
7. The learned representative relied on subsection (2)(b) of section 9 of Ordinance XXXV of 2000 by which the jurisdiction to investigate or enquire is ousted in matters which relate to assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, interpretation of law, rules and regulations relating to such assessment, determination, classification or valuation in respect of which legal remedies of appeal, review or revision are available under the relevant legislation. According to the learned representative Ordinance XV of 2000 is not included in the relevant legislation therefore jurisdiction could not be exercised. The subsection referred above, imposes bar of jurisdiction in specified cases in which remedy of appeal or review is available under the relevant legislation.
Therefore the bar is only in respect of relevant legislation only. As Ordinance XV of 2000 is not included in the relevant legislation there is no bar as pleaded by the Department. In any event it has been held in many cases by me that section 9(2)(b) could not be a bar to the jurisdiction if any maladministration is identified in the matters mentioned in this subsection and the Federal Tax Ombudsman will have jurisdiction to investigate and provide redress in respect of maladministration. The objection to the jurisdiction has no force.
8. On merits the learned representative has not touch to say in respect of the directions/recommendations made in these cases. In the recommendation it has been stated that the signatures against all the three items containing figures filled in by the Survey Team cannot be treated as an agreement with the assessee. The apprehension of the learned representative that if any resurvey is carried out the entire exise will be rendered futile is not correct. Resurvey shall be made only in cases where objections are filed by any assessee. Therefore the question of resurvey will arise only in limited cases where objections have been raised within a reasonable time. The learned representative was unable to give the number of cases in which such objections have been raised. In the circumstances it can be presumed that they may be in limited number which in no manner can adversely affect the entire exercise
9. There are well‑settled principles for review of any order, decision or recommendation laid down by the Supreme Court of Pakistan. In Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. PLD 1997 SC 865 (867) it observed:
Review proceedings cannot partake re‑hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on re‑consideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self‑evident, found floating on the surface, are discoverable without much deliberations and have a material bearing on the final‑ result of the case.
10. The recommendation was made after due consideration and with a conscious mind dealing with all the objections and pleas raised by the parties. There is no error apparent on the face of record.
11. The review petition is rejected.
C.M.A./M.A.K./403/FTO
Petition rejected.