2014 PLP (Trib (PTD)

ANWAAR UL HAQ (JUDICIAL MEMBER).

Through the titled miscellaneous application, the taxpayer has sought recalling of order passed by this Tribunal in S.T.A. No.383/LB/2009 dated 1-10-2013, whereby appeal of the taxpayer was dismissed for non-prosecution.

2. The close perusal of record reveals that the main appeal of the taxpayer was filed on 3-11-1999 before the Customs Excise and Sales Tax Appellate Tribunal, which was duly admitted on 11-11-1999. Record further shows that the appeal was fixed many times but every time it was adjourned due to one reason or another, mostly on the request of the counsel. Afterward, in 2009 the case was transferred to the ATIR due to change of jurisdiction. A simple glance of order sheet depicts that about five adjournments were afforded by this Tribunal on specific request of learned counsel of taxpayer. Accordingly, on 8-9-2010 the case was proceeded ex parte. The taxpayer filed miscellaneous application for seeking recalling of ex parte order, which was accepted and main appeal was restored for regular hearing vide M.A. No. 393/LB/10 dated 15-11-2010.

3. It is astonishing to note that this time too no one appeared on behalf of the taxpayer in spite of proper service of call notice and the case was again dismissed for non-prosecution vide order dated 23-12-2010. The learned AR repeated the same practice and filed miscellaneous application which was by this Tribunal and order in main appeal was recalled through M.A. No.21/LB/2011 order dated 23-2-2011.

4. It is more surprising to note that this time also the learned AR remained absent in spit of proper service of call notice and case was proceed ex parte thrice vide order dated 1-10-2013.

5. Now the titled miscellaneous application has been filed. The AR showed his contentions that this time the non-appearance on the date of hearing was neither intentional nor deliberate but due to the reason that no notice of hearing was served upon the applicant or his AR. He asserted that the ex parte order is contrary to the principle of natural justice as while dealing with an appeal, the grounds taken by the taxpayer were not considered/commented upon. It is, therefore, urged that the ex parte order of this Tribunal may very kindly be recalled. On the other hand, learned DR vehemently opposes the prayer taken by the learned AR.

6. After having heard the rival arguments and perusing the available record we have observed that the Tribunal has twice recalled its order for the same excuse. Every time after getting recall of the order the applicant/AR has kept sleep. This attitude of the AR/applicant is evident of his utmost desire to keep the matter pending unnecessarily as long as possible. This type of behavior is not tolerable. However, for the sake of justice and fair play we afford a last chance to represent his case the prayer is allowed and the main order is restored to its original number. It is also considered appropriate to burden the counsel of the taxpayer with special costs of Rs.500 for filing frivolous applications and irresponsible attitude, which causes wastage of precious time of the court and also to curb this wrong practice. The said amount be deposited in the account of Lahore Tax Bar Association for Tribunal's Bar Renovation Fund Account. Order accordingly. CMA/44/Tax(Trib.) Order accordingly.