Messrs AWT NIAZAMPUR CEMENT PLANT, RAWALPINDI VS SECRETARY, REVENUE DIVISION, ISLAMABAD, 2006 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 1798 (2004)

Sales Tax Act (VII of 1990)---

----5. 56---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.2(3)---Service of order, decision, etc.---Notice of adjourned hearing through telephone---Hearing were adjourned and fixed as many as five times---Last date of hearing was conveyed to complainant on telephone---Validity---Law did not provide for service of notice through telephone---Method adopted was illegal and could not be treated as a legal and proper service of notice of hearing---No notice for hearing in circumstances,was served on complainant---Complainant though had been seeking adjournments and matter was unnecessarily delayed by him but it did not mean that notice of adjourned hearing should not be given---Order passed without notice was void and illegal andmaladministration was proved---Federal Tax Ombudsman recommended with the consent of both the parties that the order in original be vacated in terms of S.45A of the Sales Tax Act, 1990 and the case be finalized on merits after hearing the complainant by a neutral Collector (Adjudication) other than the one who had passed the impugned order within 30 days.

Tahir Razzaq Khan, C.A. for the Complainant.

Muhammad Nasir Khan, Additional Collector of Customs for Respondent.

FINDINGS/DECISION

JUSTICE (RETD.) SALEEM AKHTAR, FEDERAL TAX OMBUDSMAN.---The Complainant, Messrs Army Welfare Trust Niazampur Cement Plant alleged maladministration which arose oat of an Ex parte Order-in-Original passed by the Collector (Adjudication) Collectorate of Customs, Sales Tax and Central Excise Rawalpindi with Regional Office in Peshawar.

2. The brief facts of the case are that the Complainant is a manufacturer of Portland Cement. The first notice for hearing of contravention Case No.165 was issued by the Collector on 4-6-2003 for hearing fixed on 17-6-2003. A request for adjournment was received which was allowed for 1-7-2003. On this date no one attended. Another notice of hearing was issued on 22-10-2003 for hearing fixed on 30-10-2003. At this date too the request for adjournment was received. Similar request for adjournments were made for hearing fixed on 20-11-2003 and 9-12-2003. Finally the case was fixed for 22-12-2003. According to the Respondent no body attended and the Ex parte order was passed.

3. The Complainant did not deny the fact that a number of adjournments were sought. However, the receipt of the last notice of hearing for 22-12-2003 was denied. Both the notices as well as the O.I.O. were received on December 27, 2003. It was contended by the Complainant that the perusal of the postmarks reveals that both the notice of hearing and the O.I.O. were dispatched simultaneously and after the date of hearing. The plea of the Complainant was that it is a trite law that no body can be condemned unheard. The said acts of omission and commission reflected neglect, inefficiency, inattention and inaptitude in the discharge of duties and squarely fall within the definition of maladministration.

4. In view of the above submissions, the Complainant prayed as follows:

(i) The C.B.R. should be directed for the arrangement of appropriate training and education of the concerned Collector (Adjudication) who has passed this illegal order.

(2) His present action involves neglect, inefficiency, inattention and inaptitude in the discharge of his professional duties, he should be processed against under the Efficiency and Discipline Rules, 1973.

(3) The C.B.R. may be advised for the vacation of this Order-in- Original in terms of section 45A of the Sales Tax Act, 1990 and a neutral Collector (Adjudication) may be appointed to re-adjudicate the case.

5. The Respondent in its reply stated that prior to the final date, hearings were fixed as many as five times. The notices dated 30-9-2003 and 12-11-2003 were dispatched through registered post and the Complainant was also reminded through telephone. However, they kept seeking adjournments on one pretext or the other. At one time when he representative of the Complainant attended, he was also reminded of he urgency of deciding the case within 180 days of the issuance of the riginal notice under the relevant rules. Regarding the last date of hearing, the Respondent stated that the Complainant was informed ontelephone. This fact however, was vehemently contested by the Complainant.

6. The case was discussed at length and the case record examined. The representative of the Respondent was asked whether he had any proof of the alleged telephone call for fixing the hearing on 22-12-2003. He could not produce any evidence. It may be pointed out that the law does not provide for service of notice through telephone. The method if at all adopted was illegal and cannot be treated as a legal and proper service of notice of hearing. It is therefore clear that no notice of hearing on 27-12-2003 was served on the Complainant. It is correct that the Complainant had been seeking adjournments and matter was unnecessarily delayed but it does not mean that notice of the adjourned hearing should not be given. The impugned order was passed without notice to the Complainant and was void and illegal. Maladministration in passing the order is proved.

7. The matter was discussed with the representatives of both the parties who agreed to amicably resolve the matter. With the consent of the parties following recommendation is made on the following terms.

(a) The O.I.O. to be vacated in terms of section 45A of the Sales Tax Act 1990, and the case be finalized on merit after hearing the Complainant by a neutral Collector (Adjudication) other than the one who had passed the impugned order-in-original within 30 days.

(b) The Compliance be reported to this office within 45 days of the receipt of this Order by the Revenue Division.

C.M.A./273/FTOOrder accordingly.