2008 PLP (Trib (PTD)

SYED KAZIM RAZA SHAMSI, MEMBER JUDICIAL.

This Sales Tax Appeal is directed against an order-in-original, dated 20-6-2005 passed by Collector (Adjudication) Lahore, whereby a liability of Rs.33405652 has been adjudged under section 36(1) of Sales Tax Act, 1990 against the appellant along with additional tax and 3% penalty under section 33 of the Sales Tax Act, 1990.

2. Facts of the case briefly stated are that during the audit of the registered person 17 irregularities were detected against the appellant involving the sales tax of Rs.33405652 which irregularities were confronted to the registered person by issuing a show-cause notice on 5-5-2005. The record does not show that any reply to the show-cause notice was filed by the registered person but it has been mentioned in the impugned order that one Mr. Hammad Raza consultant appeared on behalf of the registered person before the adjudicating authority. The adjudicating authority after examining the record vide impugned order adjudged the liability as mentioned above against the registered person which order is the subject matter of the present appeal.

3. The learned counsel for the appellant during the course of the arguments has filed voluminous rejoinder to the parawise comments submitted by the department and laid stress on the ground that the decision was passed in their absence. It was further stated that Mr. Hammad Raza, consultant of the registered person through an application requested for adjournment on the ground of his ill health but the adjudicating officer instead of adjourning the case proceeded to decide the matter ex parte. He has further argued that the matter requires re-conciliation, inspection and detailed inquiry into the allegations levelled against the appellant. The departmental representative Mr. Atif Qureshi, Senior Auditor while relying upon the order-in-original as well as the parawise comments submitted in this Court opposed the submissions made by the learned counsel for the appellant.

4. We have considered the submissions made by the parties and perused the record. The perusal of the impugned order reveals that the Adjudicating Authority has not given any reason to the effect as to why the reply of the show-cause notice is not available on the file. In the absence of such record it is not known as to what has been stated by Mr. Hammad Raza consultant appeared on behalf of the appellant as recorded in para 21 of the judgment. The judgment of the Adjudicating Officer further reveals that he had passed one sided judgment as he had considered, the documents produced by the department and deprived the other party from the opportunity of hearing by recording that they had adopted delaying tactics. In case adjudicating authority is of the view that the matter is being delayed by one person then it is the duty of the said authority to record an order providing last and final opportunity to the said party accused of procrastinating the matter for placing their view point on the file. The impugned order does not show that an ample opportunity was provided to the appellant for presenting its case. It is also wrong to assume that certain adjournment on one pretext or the other led to a conclusion that the party has nothing to say in its defence. It is expected from an adjudicating authority to be unbiased and impartial while deciding a matter because they are performing judicial functions which are based upon the principles that no one should be condemned unheard and should not fall prey to bureaucratic inertia. It is further guided that Adjudicating Officer should not be amused by a huge amount detected by audit team and itself should examine the matter fairly, justly and honestly, with open judicial mind.

5. For what has been stated above, the order impugned in this appeal is not sustainable in the eyes of law as such is liable to be set aside and the case is liable to be remanded for decision afresh.

6. For the fore-going reasons, the appeal is accepted by setting aside the impugned order and the case is remanded to the adjudicating authority for deciding the same afresh after taking the reply to the show-cause notice and all other documentary evidence which the parties may place on the file. The authority would also reconcile the documents and the statements, inspect the record itself and conduct the detailed inquiry into the veracity of the charges levelled against the appellant. The decision should be made within the statutory period of time after providing a fair opportunity of hearing to the parties. The appellant may withdraw from the file of this Court the rejoinder filed for placing the same before the Adjudicating Officer for his consideration. Parties be informed through registered post or by UMS.

7. File be consigned after completion. S.A.K./66/Tax(Trib.) Case remanded.