AYUB TEXTILE INDUSTRIES VS COMMISSIONER (COLLECTOR) OF SALES TAX, REGIONAL TAX OFFICE, FAISALABAD, 2017 PTD-LAHORE-HIGH-COURT-LAHORE 352 (2016)

Sales Tax Act (VII of 1990)---

----S. 47---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Art.10-A---Reference---Jurisdiction of Appellate Tribunal---Nature---High Court observed that Appellate Tribunal was vested with the jurisdiction to decide factual controversies and was a forum of last resort in that respect---Onorous obligation was cast on the Tribunal to render its findings on each issue raised before it and such finding must reflect an application of mind by the Tribunal---Impugned order passed by the Tribunal lacked application of mind and determination on each issue independently; which had seriously prejudiced the rights of the parties and offended the principle of due process---Section 24-A of the General Clauses Act, as also Art.10-A of the Constitution guaranteed due process to all persons in respect of the determination of their civil rights---Cornerstone of the principles of due process, was an adjudication on merits by forum tasked with such matters and established forums of last resort to determine issues of facts---Impugned order passed by Tribunal, which was last resort in that regard, was without reasons and without application of mind and was not sustainable---High Court further observed that series of orders passed by the Tribunal had been assailed before High Court; which seemed that appeals before the Tribunal were being disposed of in a cyclostyled manner without application of mind---Such was a serious dent in the administration of justice---Matter was remanded by High Court to the Tribunal to hear and decide the appeal de novo.

Muhammad Akram Nizami for Applicant.

Ms. Saba Saeed for Respondents.

Date of hearing: 29th March, 2016.

ORDER

This is an application by way of reference under section 47 of the Sales Tax Act, 1990 (Act) against the order dated 25.06.2015 passed by the Appellate Tribunal Inland Revenue, Lahore (Tribunal).

2.Inter alia the following questions of law have been urged to arise from the order of the Tribunal:--

I.Whether the Appellate Tribunal has failed to appreciate that the impugned Order-in-Original No. 506/2008 dated 20.09.2008 was passed without jurisdiction and as such, is an illegal order?

II.Whether the Appellate Tribunal has failed to appreciate that Show-Cause Notices is barred by time under sections 10 and 11(2) of the Sales Tax Act, 1990 and as such, no penalty can be imposed?

III.Whether the Appellate Tribunal has failed to appreciate that the registered person cannot be burdened with the amount of tax, when he has discharged his liability under Section 73 and the other enabling provisions of the Sales Tax Act, 1990?

IV.Whether the judgment passed by the Hon'ble Appellate Tribunal is a result of misreading and non-reading of the facts and law points involved in the case?"

3.We have heard the learned counsel for the parties. The portion of the impugned order passed by the Tribunal is reproduced as under:--

"We have heard the arguments of both the rival parties and perused the relevant record available on file. The learned Collector of Sales Tax and Customs (Appeals) has aptly discussed all aspects of the case in detail. The appellant has failed to point out any legal or factual infirmity in the appellate order and has not put forth any legal citation or evidence to rebut the observations and findings of the learned Commissioner (Appeals). We, therefore, find no infirmity in the order of the learned Collectorate of Customs (Appeals) which is maintained and upheld. Accordingly, the appeal under reference is dismissed."

4.We are inclined to accept this reference application entirely on the single issue of the impugned order being without reasons and without application of mind. It may be reiterated that the Tribunal is vested with the jurisdiction to decide factual controversies and is a forum of last resort in this regard. Against the order passed by the Tribunal, a reference to this Court lies on issues of law only and not on issues of fact. The issues of fact and disputes regarding competing set of facts have to be decided by the Tribunal. This casts an onorous obligation on the Tribunal to render its finding on each issue raised before it and that finding must reflect an application of mind by the Tribunal. The impugned order which has been challenged before us and the relevant portion of which has been reproduced above betrays a lack of application of mind and determination on each issue independently by the Tribunal. This seriously prejudices the rights of the parties before the Tribunal and offends the principles of due process. It may be stated that Section 24A of the General-Clauses Act as also the newly added Article 10-A of the Constitution guarantees due process to all persons in respect of the determination of their civil rights. The cornerstone of the principle of due process is an adjudication on merits by forum tasked with such matters and established forums of last resort to determine issues of facts. The impugned order, therefore, is not sustainable on this touchstone.

The reference application is accepted and the matter is remanded to the Tribunal to hear and decide the appeal de novo.

5.We have also noticed with concern that a series of orders passed by the Tribunal have been assailed before this Court in reference applications and which are in the same terms verbatim. It seems that appeals before the Tribunal are being disposed of in a cyclostyled manner without application of mind. This is a serious dent in the administration of justice which the Tribunal is obligated to dispense. A copy of this order shall be sent to the Chairman Appellate Tribunal for impressing upon the members of the Tribunal to pass orders which are reasoned and duly reflect an application of mind on issues raised before it and in particular issues of fact.

HBT/A-107/L Case remanded.