2018 PLP (Trib (PTD)

AGHA KAFEEL BARIK, TECHNICAL MEMBER.

This appeal has been filed by the Assistant Commissioner, SRB against appellate order of the Commissioner (Appeals) dated 29.06.2015, whereby he set aside an order of the Assistant Commissioner (Unit-III), SRB under section 76(1) of the Act, passed, in his own order-in-original under sections 23, 43 etc. dated 17.11.2014. Brief facts of the case are as under.

2. The respondent is and registered as stock broker, management services and advisory consultancy services falling under tariff heading "9819.1000", "9824.0000" and "9813.8100".

3. Receipts from various services were declared in the final statement, on the basis of which the A.C.-III issued a show-cause notice on 12.05.2014 confronting the said person as to why value of tax (6) different services rendered by it should not be taxed at the rate of 16%. On the basis of this show-cause notice he passed order in original on 07.11.2014.

4. Subsequently, he discovered that while calculating the sales tax in the final sum-up, of the said order some part was omitted to be typed in the calculation table. Thus he issued a notice under section 76 on 19.11.2014 and on receiving its reply rectified his order-in-original dated 07.11.2014 vide his order under section 76 on 01.12.2014.

5. On appeal from the registered person, the Commissioner (Appeals) set aside his order, as according to him the Assistant Commissioner had travelled beyond the domain of section 76 which allowed him to correct only clerical arithmetical errors.

6. Mr. Tariq Ali, A.C. SRB appeared for the SRB while Mr. Ahsan Laliwala, FCA was present for the respondent. Heard both the parties.

7. The A.C. in his notice under section 76 dated 19.11.2014 informed the respondent that due to some clerical/arithmetical error a 'row' in respect of Advisory and Consultancy Services had inadvertently escaped from the table of Para 18.7 of the order-in-original. He reproduced the relevant paras from the said order. Subsequently, he added value of Advisory and Consultancy Services from 2012 and 2013, at Rs.13,356,522/- in the total sum of taxable services values and charged S.S. Tax @ 16% Rs. 2,137,044/- on the total sum.

8. It is noted that the said service and amount of value was available in the statement of accounts from day one. The A.C. while confronting the respondent through show-cause notice dated 12.05.2014 has also shown his intention to tax six different services including Advisory and Consultancy Services from 2012 and 2013 at Rs. 13,356,522/- Yet, as he admitted, it escaped from main calculation part of his order-in-original, although detailed discussion was made on it.

9. After examining the record it appears that it was mere omission which was not deliberate but inadvertent. The provision of section 76 "correction of clerical and arithmetical errors" does cater for any such omission. In accounting parlance "errors and omission" is a common phrase and correction thereof is generally accepted in bona fide cases. In this case no mal-intention or deliberate act appears behind this omission which is bona fide mistake.

10. What appears from the examination of record to us it is an omission from concluding part of the order-in-original dated 07.11.2014, which was confronted in the show-cause notice dated 12.05.2014 and which is made basis of the order-in-original. The officer did confront the respondent on this issue in his show-cause notice as well as order-in-original but omitted it in the final paragraphs. An omission is part of clerical error. In Black's Law Dictionary. Clerical Error is defined as under: "As applied to judgments and decrees (clerical error) is a mistake or omission by a clerk, counsel, judge or printer which is not the result of exercise of judicial function". "Clerical errors may be corrected by the court at any time of its own initiation or on the motions of any party and after such notice, if any as the court orders".

11. We do not agree with the learned Commissioner (Appeals) that in this situation the A.C. should have resorted to relevant provisions to amend or revise the order, as we find that he has not amended what he intended to tax through his original show-cause notice dated 12.5.2014 and discussed throughout his assessment proceedings.

12. Accordingly the impugned order of Commissioner (Appeals) is set aside and the appeal is allowed.

13. Before parting with this appeal we want to place on record that an appeal of M/s. Elixir Securities Pakistan (Pvt.) Ltd. No.AT/206/2015 also filed against the order of the Commissioner (Appeals) order dated 29.06.2015 passed in appeal No. 153/2015 against the order-in-original dated 07.11.2014. Since the subject matter of this appeal that taxation of "Advisory and Consultancy Services" was omitted from the order-in-original dated 07.11.2014, the registered person has not taken any ground of appeal on this issue in his appeal either before the Commissioner (Appeals) or before this forum. However, as a result of this order of ours the said issue has become alive and is applicable. The registered person M/s Elixir Securities Pakistan (Pvt.) Ltd. can therefore file additional grounds on this issue in their Appeal No. AT/206/2015 already pending before us, and same shall be considered to be part of main appeal. HBT/91/Tax(Trib.) Appeal allowed.