2002 PLP (Trib (PTD)

MIAN ABDUL QAYYUM (MEMBER JUDICIAL). ‑‑‑This appeal is directed against the Order‑in‑Original No.222 of 2001, dated 30‑6‑2001 passed by the learned Additional Collector (Adjudication), Lahore.

2. Allegedly for default of the appellant to submit Sales Tax Return for the tax period of August, 1999, the appellant was issued show- cause notice through registered post which was not received back undelivered and on the basis of‑ this fact, the learned Adjudicating. Officer drew a presumption of service in terms of section 56 of the Sales Tax Act, 1990 and vide the impugned order a penalty of Rs.5,000 under section 33(1) of the Act ibid for non‑filing of the tax return by 15th of September, 1999 was imposed against the appellant. Hence, this appeal.

3. The learned counsel for the appellant with reference to section 56 of the Act ibid has submitted that there was no provision for drawing a presumption of service and that the learned Adjudicating Officer in order to ensure service of the notice should have sent another notice through courier service and that in the absence of actual service of the appellant, the impugned order being ex parte and being in violation of the principle of "Audi alteram partem" was not sustainable in law.

4. The learned D.R. has opposed this contention.

5. We have examined the record and considered point of view of both the sides. Section 56 relied upon by the learned Adjudicating Officer reads as under:‑‑ "

56. Service of order, decision, etc.‑‑‑Any adjudicating order or decision made or any summons or notice issued under this Act shall be served‑‑ (a) by tendering the adjudication order, decision, summons or notice or sending it by registered post or courier service to the person for whom it is intended or to his agent; or (b) if the adjudication order, decision, summons or notice cannot be served in any manner provided in clause (a), by affixing it on the Notice Board of the Local Sales Tax Office."

6. The requirement of law in respect of service of a notice issued under the Sales Tax Act is that it has to be sent by registered post or through Courier Service to the person for whom it is intended or to his agent. In the instant case, the claim of the department is that the notice was sent to the appellant through registered post and the same was not received back undelivered, therefore; the same was deemed to have been served‑in terms of section 56 of the Sales Tax Act, 1990. Section 56. no where says that in case a notice sent through registered post is not received back undelivered then a presumption for its service shall be drawn. In the interest of justice, the learned Adjudicating Officer should have sent another notice to the appellant through courier service and if the learned Adjudicating Officer even after an attempt at service of the appellant of the show‑cause notice through courier service had failed. to procure service then the learned Adjudicating Officer after recording this fact should have resorted to clause (b) of section 56 and should have got the show‑cause notice affixed on the Notice Board of the Local Sales Tax Office. We are sure that the learned Adjudicating Officer could not have drawn any presumption of service merely on the basis of the fact that the notice sent through registered post had not been received back undelivered. The impugned order in these circumstances appears to have been passed ex parte and in violation of the principle of law that no one is to be condemned unheard. The result is that the impugned order is set aside, and the case is remanded to the learned Adjudicating Officer for a fresh decision according to law after hearing the parties. C.M.A./M.A.K./205/Tax(Trib.) Case remanded.