TOUHEED LEATHER through Proprietor VS ADDITIONAL COLLECTOR (ADJUDICATION) OF SALES TAX AND FEDERAL EXCISE, REGIONAL TAX OFFICE, LAHORE

2010 PTD 453

[Lahore High Court]

Before Irfan Qadir, J

Messrs TOUHEED LEATHER through Proprietor

Versus

ADDITIONAL COLLECTOR (ADJUDICATION) OF SALES TAX AND FEDERAL EXCISE, REGIONAL TAX OFFICE, LAHORE and another

Writ Petition No. 4955 of 2009, decided on 26th March, 2009.

Sales Tax Act (VII of 1990)---

----S.36---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S.32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of tax along with additional taxes and penalties---Reference to the President of Pakistan---Petitioner by show-cause notice was asked to make payment of amount along with additional taxes and penalties---Contention of the petitioner was that. according to S.36(3) of Sales Tax Act, 1990, the Additional Collector was to determine the amount of tax after considering the objection of the person served with a notice to show-cause under subsections (1)(2) of S.36 of the Sales Tax Act, 1990---Such determination in terms of proviso of subsection (3) of S.36 of Sales Tax Act, 1990 was to be made within 90 days from the date on which show-cause notice was initially served---Counsel further contended that Additional Collector failed to comply with the proviso to S.36 of Sales Tax' Act, 1990 which proviso had made it clear that time was of the essence in such matters---Petitioner was well within his right to have moved an application to the Federal Tax Ombudsman for redressal of his grievance to the extent that the petitioner was not obliged to pay the amount enumerated in the show-cause notice, especially when the essential condition of 90 days contained in the proviso had not been fulfilled---Federal Tux Ombudsman, however decided that matter against petitioner---Prima facie, the order of Federal Tax Ombudsman was silent as regarded the non-compliance of Proviso to S.36 of Sales Tax Act, 1990---Appeal in that regard had been filed before the President of Pakistan and a period of more than 5 months had elapsed, but no decision had been taken by the President of Pakistan---Impugned recovery was stayed till such time the matter was decided by the President of Pakistan. ?

Muhammad Ozaid Chughtai for Petitioner.

Khawar Ikram Bhatti for Respondents.

ORDER

IRFAN QADIR, J.---Learned counsel for the petitioner contends that a show-cause notice was issued to him on 25-2-2008 whereby the petitioners were asked to make payment of Rs.5,41,831 along with additional taxes and penalties. He further contends that according to section 36(3) of the Sales Tax Act, the Additional Collector is to determine the amount of tax after considering the objection of the person served with a notice to show-cause under subsections (1) and (2) of the said section. This determination in terms of the proviso of subsection (3) is to be made within 90 days from the date on which show-cause notice is initially served in terms of subsection (1) of section 36. According to learned counsel the respondent Additional Collector adjudication failed to comply with the proviso inasmuch as the order of determination was signed on 5-6-2008. He has also pointed out that at Annexure "A" at the head note of this petition,, the Additional Collector Adjudication has incorporated handwritten date `17-5-2008'. The date is not duly typed which makes it manifest that the said date was written after the preparation of the draft. I have myself perused the relevant record wherein it, is mentioned that draft was prepared on 17-5-2008. Obviously if draft had been prepared on 17-5-2008 'there was no occasion for omission of a duly typed date. This omission appears to be deliberate and the purpose behind the same was to enable respondents to incorporate an earlier' date at a later stage. A bare perusal of the judgment delivered to the petitioner, in itself suggests that the judgment was finalized and signed on 5-6-2008. This fact is further supported by the arguments of learned counsel for respondent viz. Mr. Khawar Ikram Bhatti, who has also categorically stated that the order was dispatched on 5-6-2008. Despite this position Mr. Khawar Ikram has taken pains to bring home the point that though the order was written on 17-5-2008, but the same was dispatched on 5-6-2008. He has also shown noting side of the adjudication file according to which the draft of the Order-in-Original qua determination of the amount in question was put up before Additional Collector on 17-5-2008. Even from this noting it is not established that the judgment was finalized and duly signed and announced on 17-5-2008.

2. I have applied my conscious mind to this issue and I am inclined to agree with the learned counsel for the petitioner that the order was finalized on 5-6-2008 otherwise there was no occasion for the Department to have waited for almost one month in dispatching the order especially when proviso shakes it absolutely clear that time is of the essence in such matters. In this background the petitioner was well within his right to have moved an application to the Federal Tax Ombudsman for redressal of his grievance to the extent that petitioner was not obliged to pay the amount enumerated in the show-cause notice especially when the essential condition of 90 days contained in the proviso had not been fulfilled. However, learned Federal Tax Ombudsman decided this matter against the petitioner. The relevant extract of his order is reproduced as under:--

"As regards complainant's contention that the mandatory time limit of 90 days laid down in section 36(3) of the Sales Tax Act, 1990 was not adhered to, the respondents assert that the Order?-in-Original No.20 of 2008 was passed on 17-5-2008 well within the prescribed period. The time bar as provided in section 36(3) of the Act is mandatory if an order passed under a creates a tax liability against a person. However, the impugned order reveals that major liability of Rs.8.3 million confronted to the complainant in the show-cause notice on account of non-payment of sales tax was dropped by the Adjudicating Officer. The pending claims of refund were rejected, which did not create any tax liability against the complainant. There was, therefore, no question of time bar in this respect. Similarly the Adjudicating Officer ordered recovery of an amount of Rs.5,47,831 which- the complainant had allegedly obtained as refund fraudulently and decided the matter on its merits.

On an overall basis, the Additional Collector (Adjudication) has passed a reasonably sound and appealable order giving his findings on merits on the main issues involved in the case. No maladministration is observed. The case involves questions of fact and law. The complainant may, if it so wishes, file appeal before the competent Appellate Authority and seek remedy of its grievance from it. It may raise all the issues of time bar under section 36(3) of the Act and the issue of competency and jurisdiction of the Adjudicating Officer to decide refund claims. The appellant, being competent to deal with points of fact and law, can examine the case in the light of facts of the case and the relevant provisions of law and pass a judgment on the merits of the case after considering the pleas of the complainant."

3. Prima facie the order of the Federal Tax Ombudsman is silent as regards the non-compliance of proviso to section 36 of the Act. It has also been brought to my notice by learned counsel for the petitioner that appeal in this regard has been filed before President of Pakistan and a period of more than 5 months has elapsed but no decision has been taken by the President of Pakistan. Learned counsel therefore has argued that in this background he has been left without a remedy hence the instant writ petition has been filed.

4. After hearing learned counsel for the parties and having regard to the circumstances mentioned above, I am inclined to stay the impugned recovery till such time the matter is decided by the President of Pakistan. In the meantime, the petitioner should make an application to the President of Pakistan for an early decision in this matter.

5. With these observations the writ petition is disposed of.

H.B.T./T-44/L????????????????????????????????????????????????????????????????????????????????????? Order accordingly.