MUHAMMAD SHARIF ANSARI VS SECRETARY, REVENUE DIVISION, ISLAMABAD
2004 P T D 1766
[Federal Tax Ombudsman]
Before Justice (Retd.) Saleem Akhtar, Federal Tax Ombudsman
MUHAMMAD SHARIF ANSARI
Versus
SECRETARY, REVENUE DIVISION, ISLAMABAD
Review Application No.84 of 2003 in Complaint No. 1069‑L of 2002, decided on /01/.
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July, 2003. (a) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)‑‑‑--
‑‑‑‑S. 9(2)(a)‑‑‑Jurisdiction, functions and powers of the Federal Tax Ombudsman‑‑‑Review application‑‑‑Department contended that jurisdiction of Federal Tax Ombudsman over the complaint was barred under subsection (2)(a) of the S.9 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 as the complainant had filed appeal against the assessment which was not disclosed either to the Department or to the Office of the Federal Tax Ombudsman ‑‑‑Validity‑‑ At the time, when complaint was received in the Office of the Federal Tax Ombudsman, the appeal had not been filed‑‑‑Section 9(2)(a) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 will not apply in the circumstances‑‑‑Subject to correction review application was rejected by the Federal Tax Ombudsman.
(b) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)‑‑‑---
‑‑‑‑S. 9(2)(b)‑‑‑Jurisdiction, function and powers of the Federal Tax Ombudsman‑‑‑Considering the object of the legislation where maladministration was established the Federal Tax Ombudsman had jurisdiction to investigate.
Complaint No. 1438 of 2003 ref.
(c) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)‑‑‑---
‑‑‑‑S. 11‑‑‑Recommendations for implementation‑‑‑Review application‑‑ Recommendations by Federal Tax Ombudsman were not implemented due to filing of review application‑‑‑Validity‑‑‑It was a misconception with the Department that on filing of review application implementation was automatically stayed‑‑‑Filing of review application did not operate as stay unless it was specially granted by Federal Tax Ombudsman at the request of the Department‑‑‑Admitted position was that no representation had been filed against the recommendation by the Department‑‑ Considering the facts and circumstances of the case the time for implementation was extended up to 30 days from receipt of the order by the Revenue Division‑‑‑Review application was rejected by the Federal Tax Ombudsman.
Zubair Bilal, DCIT.
ORDER
The department has filed review application in respect of decision, dated 25‑2‑2003 in which the following recommendations were made:‑‑
(i)The Commissioner amend the assessment exercising ‑powers under section 122 of the Income Tax Ordinance, 2001 so as to "levy the correct amount of tax".
(ii)Enquiries be conducted to determine responsibility for not placing on the file documents such as (a) explanation on 24‑9‑2002 which admittedly received by the concerned official and passed on to the Record Keeper, and (b) the Inspector's report.
(iii)Appropriate action against the concerned official be taken under disciplinary rules. When conducting the disciplinary action the Inspector Mr. Tahir be specifically asked to explain the reason for his retracting the statement made at the time of hearing of the complainant.
2. It has been submitted that complainant had filed appeal on 14‑9‑2002 against the impugned assessment which was not disclosed either to the department or to this office during hearing. It is therefore, f pleaded that the jurisdiction is barred under subsection (2)(a) of section 9 of the FTO Ordinance. It has further been stated that in the recommendations Mr. Tahir, ITI has been named but in fact he was never posted at the station and the correct name is mentioned in para.5 of the decision as Mr. Saeed Ahmad, ITI. The complaint was received on 30‑7‑2002. At that time the appeal had not been filed which according to the department was instituted on 14‑9‑2002. Therefore, B subsection (2)(a) of section 9 of the Ordinance will not apply. So far objection to jurisdiction on the basis of subsection (2)(b) is concerned the same has been considered in Complaint. No. 1438 of 2003 and it has been held that considering the object of the legislation where mal‑administration is established the Federal Tax Ombudsman has jurisdiction to investigate. On this ground also the contention raised by the respondent fails. There is no error apparent on the face of record in this regard.
3. Mr. Zubair Bilal the learned representative for the department has rightly pointed out that the name of Mr. Tahir has wrongly been mentioned which ought to be Mr. Saeed Ahmed who according to him was serving as ITI. This mistake which occurs in para. 6 at page 5 and in para. 8(3) of the recommendation will be corrected and instead of Mr. Tahir the name of Mr. Saeed Ahmad, ITI be substituted.
4. Mr. Zubair Bilal submitted that as the review application had been filed the recommendations were not implemented. It may be clarified that it is a misconception with the department that on filing of review application implementation is automatically stayed. The filing of review application does not operate as stay unless it is specifically granted by Federal Tax Ombudsman at the request of the department. It is an admitted position that no representation has been filed against the recommendation by the department. Considering the facts and circumstances of the case the time for implementation is extended upto 30 days from receipt of this order by the Revenue Division. Subject to the correction made as stated above the review application is rejected.
C.M.A./965/FTOOrder accordingly.