(a) Sales Tax Act (VII of 1990)-----

----Ss. 36(3), proviso---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), 2(3)---Maladministration--Request for supply of relevant audit report and date relied upon by the Department in making contravention case---Issuance/supply of the report by the Department after five reminders---Validity---Examination of records confirmed the allegation that complainant received the copy of audit report and other details after issuing five reminders---Copies of letters/reminder alongwith evidence of service had been furnished by the complainant---Neither Additional Collector nor his staff ever responded to-the application of complainant whereby he made request for supply of relevant audit report and data relied upon in making contravention case- Reminder issued by the Complainant also failed to receive any response from the office of Additional Collector---Required information was provided to the Complainant's representative when he personally visited the office---Such was a glaring example of maladministration and the competent authorities must take notice of such lapses and issue instructions to the officers in field to attend to the letters of the tax payers promptly and also ensure that their instructions in this behalf were 'strictly followed by the officers.

(b) Sales Tax Act (VII of 1990)----

----Ss. 36(3), proviso---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), 2(3)---Maladministration-- Refusal to receive adjournment application and even to hear telephone-- Passing of order---Validity---Complainant had produced a copy of telephone bill in support of the allegation that he tried to bring the matter to the notice of Additional Collector on telephone but the calls were not transferred to him by his staff---Copy of fax sent to Members Central Board of Revenue and Secretariat of Federal Tax Ombudsman was also furnished---Fact was established that Additional Collector and his staff refused to receive the adjournment application---Refusal was absolutely unlawful and unjustified---Receipt of letters in Government offices could not be refused under any circumstances---Additional Collector could refuse adjournment for valid reasons but he could not issue the directions to staff for refusing to acknowledge the receipt of application from the complainant---Such conduct amounted to maladministration---Federal Tax Ombudsman recommended that the Collector concerned be asked to cancel the order under S.45A of the Sales Tax Act, 1990 and transfer the jurisdiction of the case to another Additional Collector of the Collectorate for deciding the case afresh after providing reasonable opportunity to the Complainant to present his case and the official concerned who refused to acknowledge the complainant's application be reprimanded to be careful in future.

Tahir Razzaque Khan and Waseem Ahmad for the Complainant.

Yousuf Haider Orakzai, Deputy Collector (Adjudication) for Respondent.

FINDINGS/DECISION

The complainant a Chartered Accountant was engaged by Messrs Army Welfare Trust Nizampur Cement to present its case before the Collector of Customs, Sales Tax and Central Excise, Customs House, Peshawar. The complainant is aggrieved by the refusal of the Additional Collector and his staff to receive adjournment application submitted on behalf of Messrs Army Welfare Trust Nazim Pur Cement. The facts of the case reported by the complainant are briefly stated as under:--

2. It is stated that on receipt of show-cause notice, dated 17-4-2003 from the Additional Collector, Collectorate of Customs, Sales Tax and Central Excise (Adjudication) Peshawar, the complainant vide his letter, dated 7th May 2003 requested the Additional Collector to provide him relevant audit report alongwith the data on which the Department relied for making contravention against his above referred client. Thereafter a reminder, dated 13-5-2003 was addressed to the Additional Collector requesting him to supply the details and audit report as already requested. Another reminder was issued on 19-5-2003 but no response was made by the Additional Collector. The complainant again reminded the Additional Collector vide his letter, dated 23-5-2003 but failed to receive the required information from him. It is further stated that the case was fixed for hearing before the Additional Collector on 28-5-2003 and the complainant vide his letter, dated 27-5-2003 sent through TCS requested, the Additional Collector to provide the requisite details 'and information and adjourn the case to enable him to furnish a comprehensive reply. The case was adjourned to 14-6-2003 and Mr. Yasir Ghaffar representative of the complainant appeared before the Additional Collector and requested for providing the data for which a number of reminders had already been addressed to him. It is stated that the Additional Collector provided the required information on 14-6-2003 after a, lapse of about two months. The case was thereafter fixed for hearing on 27-6-2003 and on this date a representative of the complainant company visited the office of the Additional Collector Peshawar and submitted an application for adjournment on the ground that Mr. Tahir Razzaque Khan had to proceed to Faisalabad on 26-6-2003 in connection with the death of his uncle and therefore would not be able to represent the case on 27-6-2003.

3. It is further stated that the representative of the complainant company Mr. Waseem Ahmad reached the office of the Additional Collector (Adjudication) and requested the staff to receive the adjournment application. It is alleged that the staff refused to acknowledge receipt of the application and took the application to the Additional Collector. It is further alleged that Mr. Waseem was informed by the staff that they were directed by the Additional Collector not to receive any letter of adjournment from the complainant. The matter wad taken up With the' Additional Collector by Mr. Yasir Ghaffar an other member of staff of the complainant company but the Additional Collector behaved rudely and informed that neither the application would be received nor any adjournment would be allowed. It is further alleged that three telephone calls were made to his office but his staff refused to transfer the call to the Additional Collector. It is also alleged that the complainant's representative met the Additional Collector at 12.45 p.m. when he was leaving his office and requested him to direct his staff to receive the application but instead of acceding to his request, he handed over the adjudication file of his client to the senior auditor of Peshawar Collectorate and instructed him to draft the. Order-in-Original for him.

4. It is stated that the matter was immediately brought to the notice of the Collector (Adjudication) on telephone followed by a fax to the Member Sales Tax, Member Legal and Secretariat of the Honourable Federal Tax Ombudsman. A photocopy of the aforesaid fax has been furnished. It is 'alleged that the action of the Additional Collector involved neglect, inefficiency, inattention and inaptitude in the discharge of his duties which amounts to misconduct. He has further alleged that this is case of maladministration and appropriate action be taken by the Hon'ble FTO. He has prayed that the Additional Collector be refrained to pass any ex parte order against his client. Suitable action be taken against the Additional Collector. It is further prayed that instruction be issued for transfer of the case to the learned Collector or any other Additional Collector of the same Collectorate.

5. The respondents have filed para wise comments denying therein the allegations made in the complaint. It is stated that the show cause notice was issued. on 17-4-2003 and the first hearing was fixed on 30-4-2003 but on this date neither anyone appeared nor reply to the show-cause notice was submitted. The case was, however, adjourned on 28-5-2003. On this date also the representative of the unit requested for adjournment contending that he was under treatment and the doctor had advised him rest. The medical certificate issued on 7-5-2003 revealed that he was advised rest for 2 weeks only from 7-5-2003 to 22-5-2003 but he did not appear for hearing fixed on 28-5-2003. The complainant was, however, provided another opportunity and the hearing was fixed on 14-6-2003. It is stated that on this date Mr. Yasir Ghaffar appeared and requested for provision of some data which was provided and the next opportunity of hearing was provided on 27-6-2003. It is pleaded that the date was fixed after providing the data required by the complainant and on his request but, the representative of the unit neither appeared for hearing on 27-6-2003 nor submitted any written reply to the show-cause notice. This time again the representative requested for adjournment on the plea that the uncle of one of their representatives who was supposed to attend the hearing had died.

6. It is reiterated that the representatives of the unit failed to appear, despite the fact that 4 opportunities were provided to them. The representatives of the unit had nothing to offer in defence of their case and were trying to delay the adjudication proceedings on one pretext or the other. It is also stated that the facts obtaining on record show that a period of 2 months and 11 days had elapsed but the party neither submitted written reply to the show-cause notice nor attended any of the four hearing proceedings: It is further pleaded that in the present complaint the legality/validity of the audit observation/contravention case has not been contested. This shows that the unit management was still not in a position to defend their case. It is reported that the case had already been decided ex parte on the basis of evidence available on record. The case has been decided on merit and if the complainant are aggrieved from the order they can file appeal before the Appellate Tribunal on the basis of evidence if available with them.

7. It is prayed that the complaint does not contain any solid ground against the contravention case and the same may kindly be turned down being baseless.

8. The case has been discussed, with the complainant and the Departmental representative. The complainant has also submitted a rejoinder controverting therein the pleas and arguments of the respondents stated in the parawise comments. It is stated that the department has not denied the allegation that the Additional- Collector provided the data which formed the basis of show-cause notice on 14-6-2003 after receipt of five reminders from the complainant in this regard. It is also alleged that the Additional Collector and his staff misbehaved with the representatives of the company and used harsh and uncivilized language.

9. It is argued by the complainant that the show-cause notice, dated 17-4-2003 was very sketchy and suffered from various discrepancies and he was therefore justified to request the Additional Collector to provide the relevant audit report alongwith data on the basis of which contravention case had been prepared against his client. In the absence of such information no reasonable reply could be submitted to the Department. The requisite information was provided by the Department on 14-6-2003 i.e. after a lapse of about two months and after issuance of half a dozen reminders. He has further argued that in the application for adjournment, dated 26-6-2003 a short time of only 3 days was sought on very valid reasons that he had to leave for Faisalabad on 26-6-2003 to attend the funeral ceremonies of his uncle. He pleaded that the learned Additional Collector could refuse adjournment but he was not at all justified in refusing to acknowledge the receipt of adjournment application. The complainant has also pointed out that the date of hearing of the case was fixed on 27-6-2003 but the Order-in-Original No.25 bears the date of 9-6-2003. This reflects that the Additional Collector was in a hurry to pass the order ex pane against the complainant. He has also pointed out that in para. 4 of the Order-in-Original the receipt of complainant's reply, dated 23-5-2003 has been acknowledged and the extract therefrom has also been produced in the said order. He pleaded that the objections raised by the complainant in the aforesaid letter, dated 23-5-2003 were not considered and the decision was made ex parte.

10. The Department representative reiterated the pleas taken in the parawise comments; He, however, argued that the time limitation for passing the adjudication order was expiring on 17-7-2003 as provided in the proviso to subsection 3 of section 36 of the Sales Tax Act, 1990.

11. The examination of records confirms the allegation made by the complainant that he received the copy of audit report and other details from the Additional Collector on 14-6-2003 after issuing five reminders to him in his regard. The-copies of letters/reminders alongwith evidence of service have been furnished by the complainant. It is distressing to note that neither. the Additional Collector nor his staff ever bothered to respond to the application of the complainant, dated 7-5-2003 whereby he made request for supply of relevant audit report and the data relied upon in making the contravention case. The reminders issued by the complainant company on 13-5-2003, 19-5-2003, 23-5-2003, 27-5-2003 and 5-6-2003 also failed to receive any response from the office of the Additional Collector. The required information was provided to the complainant's representative on 14-6-2003 when he personally visited the office. This is a glaring example of maladministration and the competent authorities must take notice of such lapses and issue instructions to the officers in the field to attend to the letters of the tax payers promptly. They should also ensure that their instructions in this behalf are strictly followed by the officers.

12. The respondents have also failed to repudiate the allegation made by the complainant that the Additional Collector and his staff refused to acknowledge the receipt of his application, dated 26-6-2003. It is conceded in para. 3 of the parawise comments that on 27-6-203 the complainant's representative requested for adjournment on the plea that the uncle of one of their representatives had died. The complainant has produced a copy of telephone bills in support of the allegation that he tried to bring the matter to the notice of the Additional Collector on telephone but the calls were not transferred to him by his staff. He has also furnished a copy of the fax sent to the Members C.B.R. and Secretariat of Federal Tax Ombudsman at Islamabad. It is therefore established that the Additional Collector concerned and his staff refused to receive the adjournment application, dated 26-6-2003. Refusal was absolutely unlawful and unjustified. The receipt of letters in Government offices cannot be refused under any circumstances. It is pertinent to point out that the Additional Collector could refuse adjournment for valid reasons but he could not issue the directions to the staff for refusing to acknowledge. the receipt of application from the complainant. This amounts to maladministration. In view of the above - is recommended as under:--

(i)The Collector concerned be asked to cancel the Order-in Original bearing No.25 of 2003, dated 6-7-2003 under section 45A of the Sales Tax Act, 1990 and transfer the jurisdiction of the case to another Additional Collector of his Collectorate for deciding the case afresh after providing reasonable opportunity to the complainant to present his case.

(ii)The official concerned who refused to acknowledge the complainant's application, dated 26-6-2003 be reprimanded to be careful in future.

(iii)Compliance be made within 30 days of the receipt of this order and reported within a week thereafter.

C.M.A./1004/FTOOrder accordingly.