PAK PERSIAN CARPETS (PVT.) LTD., LAHORE VS SECRETARY, REVENUE DIVISION, ISLAMABAD
2007 P T D 2473
2007 P T D 2473
[Federal Tax Ombudsman]
Before Justice (Retd.) Munir A. Shaikh, Federal, Tax Ombudsman
Messrs PAK PERSIAN CARPETS (PVT.) LTD., LAHORE
Versus
SECRETARY, REVENUE DIVISION, ISLAMABAD
Complaint No. 299-L of 2007.
Sales Tax Act (VII of 1990)---
----Ss.36, 73 & 45A---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.2(3)---Recovery of .tax not levied or short-levied or erroneously refunded---Creation of liability of tax in respect of received refund of input tax along with additional tax and penalty on the basis of vague show-cause notice issued without completion of prerequisites of show-cause notice inasmuch as it did not supply the grounds or reasons for taking proposed action---Validity---Adjudicating Officer hastily concluded that the complainant was guilty without giving her own independent findings on the objection raised by the complainant, without giving reasons in support of the conclusions---Held, each plea advanced by the complainant should have been analyzed, facts and figures should have been. examined and the reasons why the complainant's point of view was rejected should have been properly spelled out---Adjudicating Officer had failed to pass a detailed and well-reasoned order; it appeared as if the Adjudicating Officer was swayed by prosecution side's version of the issues involved and ignored complainant's arguments---Order-in-Original was sketchy, lop-sided, improper, arbitrary and against the principles of natural justice, all of which amounted to `maladministration' within the meaning of S.2(3) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000---Federal Tax Ombudsman recommended that Revenue Division direct the competent authority to re-open order-in-original in so 1'ar as it related to charges (1 and 2) and decide these charges afresh on the merits of the case in accordance with the provisions of law after providing the complainant the opportunity of being heard.
C.P.L.A. No.1968 of 2002; Sales Tax Appeal No.131 of 2002; C. A. No.316 of 2001; Complaint No.805 of 2003; Sales Tax Appeal No. 213 of 2003 (K-2); Zamindara Paper and Board Mill's case C.P. No, 702-L of 2003; 1993 SCMR 31; PLD 1968 Lah. 131; 2007 PTD (Trib.) 840 and Complaint No, 34-L of 2007 ref.
Dealing Officer Muhammad Akbar (Advisor).
Muhammad Mehtab Chughtai, Consultant for the Complainant.
Ms. Asma Hameed, A.C., Sales Tax, Lahore for Respondents.
JUDGMENT
JUSTICE (RETD.) MUNIR A. SHAIKH (FEDERAL TAX OMBUDSMAN).---The Sales Tax. Audit Staff conducted complainant's audit for the period July, 2002 to June, 2003. Based on the findings of the audit that the complaisant had deprived the Government of its revenue by receiving refund of inadmissible input tax, the Deputy Collector, Sales Tax (Adjudication) issued a show-cause notice dated 28-2-2005 (delivered on 9-5-2005). Subsequently, the D.C. passed an illegal Order-in-Original No.62 of 2006 dated 28-12-2006 creating a liability of Rs.221638 along with additional tax and imposed a penalty of Rs.25,000 on the complainant. The O-I-O so passed was illegal and against the established practice. It was passed with mala fide intention, without any valid reason, which amounted to, maladministration'. Show-cause notice was vague and was issued without completion of prerequisites of show-cause notice inasmuch as it did not supply the grounds or reasons for taking proposed action. Reliance was placed on C.P.L. A. No.1968 of 2002 (Supreme Court of Pakistan). In Charge No.1 it was alleged that the complainant had claimed refund of inadmissible input tax as it could not produce proof of payments against certain transactions and had not made some payments within 120 days as required under section 73 of the .Sales Tax Act, 1990. But it was not mentioned in the show-cause notice what those certain `transactions' were against which payment proofs were not provided. A vague show-cause notice could not stand the test of judicial scrutiny. In Charge No.2 it was alleged that the complainant had claimed excess refund as it had shown excess consumption of material but it was not mentioned in the said notice as to how much excess refund had been claimed and how .much excess material was consumed. The respondents failed to particularize and specify reasons for purported action for evasion of sales tax. Reliance was placed on Sales Tax Appeal No. 131 of 2002 by the Appellate Tribunal, Islamabad Bench-II and C. A. No.316 of 2001 by the Lahore High Court. The Adjudicating Officer passed the impugned O.I.O. after lapse of one year and ten months in violation of the provisions of section 11(4) of the .Sales Tax Act, 1990. The order was time-barred. Reliance .was placed on F.T.O's findings in Complaint No.80S of 2003, confirmed by the President of Pakistan vide order dated 7-5-2005. The F.T.O. had given similar findings on other complaints also. Although in regard to charge No.1 the show-cause notice did not disclose specific details of transaction but the contravention report alleged that the bank statements .were not provided in respect of certain transactions. The complainant had not violated the provisions of section 73 of the Act. The `business account' was a wide term. It could be a ledger of the business bank book of the business or other accounts of business etc. The `business account' definition could not be enforced retrospectively. The goods were purchased through valid sales tax invoices and were exported. Input tax was paid. The Supplier deposited the output tax in the treasury. There was no loss of revenue. The issue had already been settled by the Appellate Tribunal in Sales Tax Appeal No. 213 of 2003 (K-2). The complainant provided bank statements and cash book to the department indicating fulfilment of conditions of section 73 of the Act as per clarification issued to that effect by the C.B.R. The Adjudicating Officer passed a brief order that complainant had made only partial payments in accordance with section 73 without specifying the extent of partial payment and without specifying the remaining amount. The Adjudicating Authority did not consider the proof of payments provided to it nor did it consider complainant's .contentions in regard to the charges framed against it. The department had already recovered Prom the complainant the amount of invoices of February, 2001, along with additional tax and. penalty for violation of section 73 of the Act and now it was trying to recover the same amount again, which was wrong. The Adjudicating Officer failed to examine the available evidence and did not comply with judgments passed by higher forums. The order was illegal and time barred. The same maybe set aside:
2. In reply, the Collector of Sales Tax- Lahore has submitted that the complaint was not maintainable because it was signed by one Mr. Zahid Rasheed Butt; who was not authorized to file the complaint. The Adjudicating Authority passed a legal order. The complainant had approached the FTO prematurely. It could have sought remedy against the impugned O.I.O. by filing appeal before Collector (Appeals). The audit staff acted- lawfully and without any mala fide intention, No `maladministration' was committed. The judgments cited by the complainants were not relevant to the instant case, far the simple reason that findings under section 25(3) of the Sales Tax Act, 1990 and the contravention report were served upon the complainant. The show-cause notice was issued in continuation of these documents. In its reply to the show-cause notice the complainant responded to details as discussed in the contravention report; hence the complainant could not claim that the show-cause notice was defective for want of details. The judgment of High Court in case of Zamindara Paper and Board Mills in C.P. No. 702-L of 2003 had been set aside by the Supreme Court. The plea of time-imitation was unfounded. The Finance Act, 2006 gave one tune extension for deciding cases pending as on 30-6-2006 upto 31-12-2006. The complainant's case was decided on 28/12/2006.
Reliance was also placed on identical decision reported in PLD 1968 Lah. 1311 (P1318d), the Appellate Tribunal, Islamabad Bench in the decision in Sales Tax Appeals Nos. 154 and 155/ST/IB/OS (2007 PTD (Trib.) 840).' The case involved determination of liability and, therefore, FTO's jurisdiction was ousted. The impugned O-I-O was lawfully passed after providing proper opportunity of hearing to the complainant and after fulfilling all nouns of justice.
3. During the hearing, the AR reiterated the arguments advanced in the written complaint. He emphasized that the impugned O-I-O was time-barred. The show-cause notice was vague inasmuch as it did not disclose details of `certain transactions' nor did it specify the disputed refund amount nor the period involved: It also did not indicate the excess consumption of material as alleged by the respondents. The adjudication could not be done against a vague show-cause notice. Reliance was placed on FTO's findings in Complaint No. 34-L of 2007. Show-cause notice alleged that the complainant could not produce proof of payment. The O-I-O accepted that partial payment was made but did not spell out the exact amount nor did it spell out the extent of unpaid amount. The adjudication authority failed to pass a speaking order. The complainant provided details of shipping bills and the relevant inventory showing consumption of material but the same were ignored.
4. The DR submitted that even if show-cause notice did not specify certain facts the complainant was served with contravention report on 17-2-2005, which gave all the details. The complainant was, therefore, fully aware of the charges levelled against 'it because the contravention report had disclosed details of transactions and other particulars. Complainant's reply to the show-cause notice also itidicated that not only was the complainant aware of the details but it also rebutted the allegations comprehensively. Only partial payment, was made in adherence to the provisions of section 73 of the Act, the rest of the payments were not verified by the banks. The complainant was not prepared to have the payments verified from the bank. The contravention report also showed particulars of excess consumption and the complainant knew about it. The A.R.; however, stated that intimation of audit observation did not constitute a show-cause notice. He submitted that `maladministration' consisted in not only issuing a vague show-cause notice but also in passing a sketchy and non-speaking order, which failed to deal complainant's arguments presented before the adjudicating authority. On a question, the A.R. submitted that the complainant had not filed any appeal against the impugned O-I-O before the appellate authority and had, instead, tiled this complaint of `maladministration'.
5. The arguments of the two sides and records of the case have been considered and examined. The respondents alleged in their written comments that the complaint has not been filed by an authorized person of the company. The case record shows that it has been filed by Mr. Zahid Rasheed Butt, Director of the company who authorized Mr. Muhammad Mehtab Chughtai, Consultant to represent the case before this forum. Complainant's plea that the impugned O-I-O No. 62 of 2006, dated 28-12-2006 is hit by time limitation as provided in section 36(3) of the Sales Tax Act, 1990 is not tenable because the case -was pending as on 30-6-2006 and was decided, by the respondents before 31-12-2006 as per the provisions of section 45(2) of the Act, which provided one-time extension for deciding cases pending as on 30-6-2006 upto 31-12-2006. No doubt, show-cause notice was in some respects vague inasmuch as it did not disclose the details of certain transactions and the quantum of alleged excess consumption- of materials etc. However, it did invoke various provisions of law which were said to have been violated as well as the provisions of law under which the recovery was proposed to be made and penalty was intended to be imposed. The O-I-O reveals that while submitting its reply to the show-cause notice the complainant was aware of the details of transactions and alleged excess consumption of materials and other relevant details as were communicated to it by the department through a contravention report; which the complainant itself referred to in its reply to the show-cause notice and used details given therein to rebut the charges framed against it. The object of serving a show cause notice is that the affected party should have the opportunity to explain its position. The complainant, therefore, did explain it's position to the Adjudicating Authority by submitting a comprehensive reply to the show-cause notice and by arguing the case verbally. It is, however, noted that the Adjudicating Officer, while setting out in detail the ,contentions of both the complainant and the department in the body of O-I-O, passed a brief and sketchy impugned O-I-O, failing to rebut the viewpoints of the complainant as contained in its reply to the show-cause notice and verbally argued before' her. The operative part of the O-I-O indicates that the officer hastily concluded that the complainant was guilty without giving her own independent findings on the objection raised by the complainant, without giving reasons in support of her conclusions. Each plea advanced by the complainant should have been analyzed, facts and figures should have been examined and the reasons B why the complainant's point o1` view was rejected should have been properly spelled out. The Adjudicating Officer has, therefore, failed to pass a detailed well-reasoned-out order. It appears as if the officer was swayed by prosecution side's version of the issues involved and ignored complainant's arguments. The impugned O-I-O is, therefore, sketchy, lop-sided, improper, arbitrary and against the principles of natural justice, all of which amount to `maladministration' within the meaning of section 2(3) of the FTO Ordinance, 2000. The respondents' argument that FTO's jurisdiction did not extend incases involving determination of liability is not tenable. `Maladministration' is established as indicated above. This forum is competent to investigate cases involving `maladministration'.
6. In view of the foregoing position, it is felt that ends of justice will be served if complainant's case is revisited in regard to charges 1 and 2 framed in the show-cause notice (the complainant did not contest charge 3 framed in the show-cause notice) and are decided .afresh after dealing with complainant's written as well as oral arguments after giving it the opportunity of being heard. Accordingly, it is recommended that the Revenue Division direct the competent authority to:--
(i) Re-opening Order-in-Original No. 62 of 2006, dated 28-12-2006 in so far as it relates to charges 1 and 2 of the show-cause notice, dated 28-2-2005 under section 45A of the Sales Tax Act, 1990 and decided these charges afresh on the merits of the case in accordance with the provisions of law after providing the complainant: the opportunity of being heard.
(ii) Compliance be reported within 30 days of the receipt of this order.
C.M.A./112/FTOOrder accordingly.