2011 PLP (Trib (PTD)

This appeal has come up against Order-in-Appeal bearing No.229-230, dated 31-3-2009 tiled by Messrs D.L. Nash Karachi a different registered person, and facts of his case bearing No.STH/604/ 08/Enf for the month October, 2007 were discussed.

2. Nothing was discussed regarding facts of the case of the appellant but finding of facts gathered from the above case was applied to the cases of 17 different registered persons/refund claimants without giving consideration or applying judicial mind to the cases of all those) including the appellant.

3. For facts of the case the counsel for the appellant brought us to the contents of the Order-in-Original bearing No.154 of 2008, dated 8-5-2008, passed in the cases of the appellant Messrs Salfi Textile Mills Ltd. Which was issued in refund cases tiled in the month of January, 2007 and January, 2008 under Cases No. STH/673/08/Enf.

4. Show-cause notices were issued to the appellant as on 19-4-2008 hearing was fixed for 30-4-2008. The said SCNs were issued under the authority of section 10(4) of the Sales Tax Act, 1990 and Rule 37 of the Sales Tax Refund Rules issued S.R.O. 555(I)/2006 dated 5-6-2006.

5. The appellant was charged for the violations (not committed by himself) under different Sections of the Sales Tax Act, 1990, such as sections 2(14), 4, 7, 8(1), 10, 26 of the Sales Tax Act, 1990 with threat for punishment to the appellant by rejection of his lawful refund claims, which were unlawfully rejected and are under this appeal.

6. That the mischief of section 10(4) of the Sales Tax Act, 1990 is not liable adjudication, as such mischief does not fall within the scope of section 11 or section ibid

36. Virtually no mischief under section 11 or 36 warrants and the proceedings of adjudication carried on in this case are nothing except futile exercise being unauthorized and void ab initio and non-existent in the eyes of law. The reliance is placed on the bare reading of sections 11, 36 and 37.

7. That in the present case there was no allegation to the effect "a tax or charge has not been levied or made or has been short levied or has been erroneously refunded". The refund was applied for only but nothing was refunded at the crucial time of notice or adjudication. The adjudication was unauthorized as no mischief of section 36 was warranted in the circumstances of the case.

8. That in the circumstances of the present case which may lead "where as person who is required to file a tax return fails to file the return for a tax period by the due date or pays an amount which, for some disdeclaration is less than the amount of tax actually payable". At least the appellant is claimant of refund and does not fall within the mischief of section 11 ibid.

9. The cases of refund (subject matter of this appeal) were tiled by the appellant as per procedure provided under Rule No. 28 the Sales Tax Refund Rules issued vide S.R.O. 555(I)/2006 dated 5-6-2006. On submission of the refund claims the Refund Receipt Section of the respondent confirmed that the claim tiles were complete in all aspects. In proof whereof unique identification numbers were issued.

10. That the respondent issued the Show-Cause Notice was issued as on 28-4-2005, under subsection (4) of section 10 of the Sales Tax Act, 1990, which subsection (4) was no more in the field since the month of June 2007 on substitution of section 10 of the Sales Tax Act, 1990, Finance Act, 2007.

11. In the said Show-Cause Notice the respondent listed those Sales Tax Invoices (submitted by the appellant seeking .refund equal to the input Sales Tax paid thereon) which are not acceptable for refund because the suppliers thereof defaulted on various grounds (but nothing was alleged for fault or default of the appellant himself) the allegations for non-acceptance of said invoices are detailed as under: * Messrs Bilal Industries. (Scrutiny for verification) *????????? Messrs Hyder Ali and Co; (Non-Filer) *????????? Messrs PTCL. (Ok if used in business premises) *????????? Messrs Bilal Packages. (Scrutiny for verification) *????????? Messrs Yousuf Zai Trading Co. (Non-Filer) *????????? Customs Shipping Bills Five (5). (Dost not exist)

12. That the appellant joined the adjudication proceedings as well as approached the above said suppliers, the allegations set against those suppliers were false and in proof of the same they supplied the documents, which were deposited with the respondent as on 28-4-2008, the receipt of the same was also acknowledged by the respondent.

13. That the Order-in-Original No. 154 of 2008 was also applied to another case of the appellant regarding refund for the month of January-2008. A brief account of the same, is given here under:-- Show-Cause Notice: January-2008 Dated:????????????????????????? 15-04-2008 Hearing fixed:?????????????? 29-4-2008 Involving Sales Tax: Blank Issued under:??????????????????????????? Section 10(4) of the Sales Tax Act, 1990 Sales Tax Refund Rule 37 of S.R.0.555(I)/2006, dated 5-9-2006 Violations of Sections:?? 2(14), 4, 7, 8(1), 10, 26 of STA-1990 Invoices objected to with name and fault of the supplier: Alico Textile Access Invoice Summery not submitted Qaiser Brothers. Non-Filer Pakasia Mill Store Invoice Summery not submitted SG Polypropylene Scrutiny for verification Work Man Invoice Summery not submitted Tanveer Traders Non-Filer Bilal Packages Non-Filer Invoice Summery not submitted Scrutiny for verification Rafiq Iron Merchant Scrutiny for verification Javaid Umar Enterprises Non-Filer Lucky Cement Non-Filer Precision Rubber Pro Exceeds declared output PTCL If used in business premises Global Technologies Non-Filer Lokhand Wala Traders Invoice Summery not submitted Inter-trade Distribution Non-Filer

14. That the alleged violation of five (5) different provisions of law (instead of a single one) is unwarranted by commission or omission on part of the appellant himself. Moreover the alleged provisions of law are also not relevant under the circumstances of the case. Rather violated by the respondent or his field forces. The intent and mandate of said provisions of law is given here below:-- * Section 2(14): ?Definition of input tax *Section 4: Zero Rating *Section 7: Determination of Tax Liability *Section 8(1): ?Tax Credit not allowed *Section 10: Refund of Sales Tax *Section 10(4) Not available since 30-6-2007 * Section 26: Filing of Return

15. That it is worth consideration that how subsection (4) of section 10 allows rejection. Whereas its text as it was, reads that: "Whether there is reason to believe that a person has claimed input tax credit or refund which was not admissible to hint, the provisions regarding time limit shall not apply till the investigation, including the verification of the deposit of tax claimed as refund, is completed and the claim is either accepted or rejected."

16. That on careful perusal of mandate and comparison of section 10 before and after 30-6-2007 it cast duty upon the field forces of the respondent to prompt the process of refunds of exceeded input tax instead of rejection thereof The comparison of section 10 of the Sales Tax Act, 1990 reads as under:-- Before 30-6-2007 Excess amount to be refunded. After 30-6-2007 Refund of input tax. Subject to the provisions of subsection (2), if in relation to a tax period the total deduction of input tax and other adjustments as specified in section 9"exceed the output tax, the excess amount shall be refunded to the registered person: It the input tax paid by a registered person on taxable purchases made during a tax period exceeds the output tax on account of zero rated local supplies or export made during the tax period, the excess amount of input tax shall be refunded to the registered person not later than forty-five days of filing of refund claim in such manner and subject to such conditions as the Board may, by notification in the official Gazette specify: Provided that any excess amount of tax shall be refunded to the registered person subject to such conditions, restrictions and limitations as the Board may, by' notification in the official Gazette specify: Provided that in case of excess input tax against supplies other than zero rated or exports, such excess input tax may be carried forward to the next tax period, along with the input tax as is not adjustable in terms of subsection (1) of section 8B, and shall be treated as input tax for that period and the Board may, subject to such conditions and restrictions as it may impose, by notification in the official Gazette, prescribe the procedure for refund of such excess input tax: Provided further that the Board may, by notification in the official Gazette, restrict or regulate the amount of the refund claimed by a registered person as input tax credit to such extent and in such manner as it may specify therein. Provided further that the Board may, from such date and subject to such conditions and restriction as it may impose, by notification in the official Gazette, direct that refund of input tax against export shall be paid along with duty drawback at the rates notified in such notification. (2) Notwithstanding anything contained in subsection (1), the input tax incurred shall be refunded not later than thirty days of filing of? return in such manner and subject to such conditions as the Board may, by notification in the official Gazette, specify. (2) If the registered person is liable to pay any tax, default surcharge or penalty payable under any law administered by the Board, the refund of input tax shall be made after adjustment or unpaid outstanding amount of tax or, as the case may, default surcharge and penalty. (3) It a registered person is liable to pay any tax, default surcharge or penalty payable under any law administered by the Board, the refund of input tax shall be trade after adjustment of unpaid outstanding amount of tax or, as the case may default surcharge and penalty. (3) Where there is reason to believe that a person has claimed input tax credit or refund where was not admissible to him the proceedings against him shall be completed within sixty days. For the purposes of enquiry or audit or investigation regarding admissibility of refund claim, the period of sixty days may be extended up to one hundred twenty days by an officer not below the rank of an Additional Commissioner Inland Revenue and the Board may, for reasons to be recorded in writing, extend the aforesaid period which shall in no case exceed nine months. (4) Where there is reason to believe that a person has claimed input tax credit or refund which was not admissible to him, the provisions regarding time limit shall not apply till the investigation, including the verification, including the verification of the deposit of tax claimed as refund, is completed and the claim is either accepted or rejected. Note: Replaced as on 30-6-2007. Note: Amended up to 1-7-2010.

17. That contents of section 10 ibid put a liability on the shoulders of field forces of the Sales Tax as to make payment of refund claim to the claimant within prescribed period but not later except exceptional case. In those exceptional cases again mandate contained in section 10(4) binds the field forces of the Sale Tax as to do investigation and verification in person by applying judicial mind.

18. There is no independent finding rather finding on the appropriate facts of the case in the impugned order-in-appeal. No judicial mind was applied while passing the order-in-original in this case. Moreover no rebuttal or rejection was offered by the department to the documents presented by the appellant, which proves that the documents submitted by the appellant for removal of the objections were in order and admissible, which were not adhered to.

19. It is worth consideration that all the objection raised by the respondents are representing violations by the suppliers other registered persons. Law does not authorize to hold money of one registered person due to act of omission or commission on part of other registered person. The computer system is an only devise to detect the discrepancies in the data fed therein correctly or incorrectly by the registered person or sales tax staff under bona fide or non-bona fide designs. In such circumstances a heavy duty casts upon the field forces of the respondent to make human struggle for removal of objection at their own end, by applying judicial and fair mind.

20. The field forces of the respondent are not authorized under arty law, norm and logic, as to penalize or detain refunds claims of the claimant in any circumstances resulting out of faults or default of the supplier who collected the Sales Tax at the time supplies were made. On collection of such input tax he deposited the same into the national exchequer, in proof whereof supplier issued the Sales Tax invoice to the appellant. Which the appellant presented to the respondent for refund of money equal to tax charged and deposited their against.

21. That the STARR computer system is a 'mischief finding system" only. But it does not allow to amend or sweep the legislative provisions of law. It does not give license to functionaries as to neglect their legal duties cast upon them under section 10 or 25 of the Sales Tax Act, 1990. They are bound to act promptly for verification of payment of tax under section 10 ibid, through application of judicial mind and to approach the defaulter under section 25 ibid.

22. It is now well settled law that finding of facts in each case is independent of each case, which needs to be decided individually and determination of facts made in one case cannot be applied to the other case. No doubt finding of law only can be applied through a consolidated judgment.

23. Table law is of person and it is very important to trigger the penal law into motion the same the, their computer system are as controversy of facts can be decided by an individual judgment on each and every case, judgment on existence of facts, in the case of one registered person cannot be applied to the facts of other registered person for award of punishment by forfeiture of refund.

24. The act of omission or commission on part of the respondents may be strictly reprimanded with direction to nip the evil of negligence or in-action on part of the respondents or men working under them within their control and instructions.

25. That the counsel for the appellant relied upon various judgments. The judgments of honourable Supreme Court, holding the field and binding under Article 189 of the Constitution of Islamic Republic of Pakistan are relied upon by the learned counsel for the appellant on the following points of law.

26. Finding on facts. Every case is an independent case for finding of facts, findings on fact may be given on existence of facts in each case and proved by evidence, not by surmises and conjecture and applying findings of facts of an other person. It is now well settled law "each and every case would be decided on its own peculiar circumstances of fats" vide judgment cited as 2007 SCMR 855 relied upon 1994 SCMR 2214.

27. In-action to perform duty, and negligence; (a) Sections 3, 4, 10(2) 29 & 46

Sales Tax Rules, 2004, Rr.28 & 29

S.R.O. 555(1)/2006, dated 5-6-2006

Appeal to Appellate Tribunal

Refund claim

Appellant who was manufacturer of zero-rated supplies and a registered person under the Sales Tax Act, 1990, filed refund claim as per procedure provided under, S.R.O. 555(I)/2006, dated 5-6-2006

On submission of said refund claim the refund receipt issued by the department had confirmed that the claim was complete in all respect; and same was loaded in the Computer System

In proof of proper and complete tiling of refund claim a unique identification number was issued to the appellant as provided under R.29 of Sales Tax Rules, 2004

Refund claim was tiled on the strength of evidence of input tax, the original Sales Tax Invoices

No further enquiry or audit was required for verification of genuineness of said invoices, as no information was conveyed by the functionaries of department to the appellant within the period of limitation- provided under section 10(2) of Sales Tax Act, 1990

However, department not only failed to comply with its obligations under Rr. 28 and 29 of Sales Tax Rules, 2004 and section 10(2) of Sales Tax Act, 1990, but also under R.31 of S.R.O.555(I)/2006, dated 5-6-2006

No scrutiny was made by the department on the facts and grounds submitted by the appellant

Show-cause notice was issued under sections 2(14), 4, 7, 8(1) and 25 of Sales Tax Act, 1990 and the two forums below had passed void orders on irrelevant and unwarranted provisions of law

Refund case of appellant was declined due to negligence of the functionaries of the department

By the alleged show-cause notice the field forces of the department made interpretation of relevant provisions of Sales Tax law according to their convenience to cover their own neglect, intention and inaction to flout the clear cut mandate given by the legislature in section 10 of Sales Tax Act, 1990

Adjudication and appellate proceedings in the present case, two forums below were adjudged to be illegal and improper as they patently suffered from various legal infirmities

Impugned orders were set aside and appeal was allowed, with direction to department for refund of the money unlawfully detained by the respondent 2009 PTD 1993 Custom, Excise and Sales Tax Appellate Tribunal. (b) Public functionaries, negligence of

Plaintiffs sought declaration of title against suit property, ownership of which vested with Forest department

Trial Court decreed the suit in favour of plaintiffs

Appeal against judgment and decree passed by Trial Court was dismissed by Lower Appellate Court solely on the ground of its being barred by limitation

High Court in exercise of revisional jurisdiction after discussing merits of the case declined to interfere with the judgment passed by Lower Appellate Court

Plea raised by authorities was that as appeal before' Lowe Appellate Court was not decided on merits, therefore, merits of the case should not have been dilated upon by High Court

Validity

Due to serious lapses and failure to discharge legal duties promptly and within the prescribed period of limitation by all concerned in the matter in view of the decree of the Trial Court, no actual loss, damage or deprivation of rights had occurred to public functionaries concerned in the matter, rather Government and Forest Department stood completely deprived of the public property solely meant to be used, utilized and dealt with in public interest being a public property of which Government and the Department through its functionaries were the custodian

Decree of Trial Court was not assailed before Lower Appellate Court within the prescribed period of limitation and for such reason alone, appeal was dismissed, upheld by High Court as well, consequently Government stood divested of huge property for being its custodian and thereby interests of public stood completely jeopardized merely because of grave omissions and inaction on. the part of concerned public functionaries

Supreme Court, in view and for doing complete justice; took notice, of delay in preferring appeal before Lower, Appellate Court and having preferred civil petition for leave to appeal before Supreme Court much beyond the prescribed period of limitation and condoned the delay

Judgment and decree passed by Lower Appellate Court was set aside and appeal was remanded to Lower Appellate Court for decision afresh on merits

Supreme Court directed the competent authority to proceed against all the concerned delinquent officers and public functionaries by taking disciplinary action under the appropriate law and rules for not having approached Lower Appellate Court and Supreme Court within the prescribed period of limitation and in accordance with law

Appeal was allowed. Vide 2007 SCMR 1574 Supreme Court in the case of Government of Balochsitan through Secretary Board of Revenue v. Muhammad Ali. (c) Appeal by Revenue

Delay of more than two years, condonation of

Plea of Revenue was that concerned file was misplaced due to shifting of office to another place and that frequent transfers of concerned officers took place during such period

Validity

Revenue would be treated as any other ordinary person

No preferential treatment would be given to Revenue against an ordinary period

Affidavit attached with application for condonation of delay was unattested, which could not be treated as an affidavit in eye of law

Such inaction and negligence on the part of revenue was not excusable

Appeal was dismissed being time-barred. Vide 2006 PTD 2124 passed by the Custom Excise and Sales Tax Appellate Tribunal in S.T.A. NO.232/LB of 2004, decided on 1st April, 2006.

28. Superstructure founded on void order is void and non-existent in the eyes of law. (A)?? Null and void order is considered to be an order which did not exist, therefore, no question of its merger with any order passed in consequence thereof arises

All the subsequent order passed in consequence thereof will also be rendered as illegal and void, vide 2010 PTD 1692 passed by Income Tax Appellate Tribunal. (B)?? Only on executive instructions, the substantive rights of the citizens should not be crucified, vide 2010 PTD 1681 passed by Customs Federal Excise and Sales Tax Appellate Tribunal (C)?? Order passed by the Trial Court being devoid of sanction from any provision of law, same was void without jurisdiction and when said initial order was void and without' jurisdiction, then subsequent orders sequence or consequential, would also have no force of law and would be considered to be void and without jurisdiction

Compliance of any illegal and arbitrary order was neither binding on the subordinate forums nor valid in the eves of law, vide 2008 SCMR 105 passed by Supreme Court in case of Iqbal Hussain v. Province of Sindh. (D)?? Appellate Court below having not taken notice of void order passed by the Trial Court, concurrent judgments and decrees passed by the Trial Court and Appellate Court below being void and without jurisdiction, were liable to be set aside, vide 2009 CLC 46 passed by Northen Area Chief Court in case of Government of Pakistan v. Muhammad Younus. (E)?? Superstructure built upon a void order would fall to the ground

High Court set aside impugned order decree and allowed defendant to tile application for leave to appeal and defend suit, vide 2007 CLD 1633 passed by Lahore High Court Lahore in case of Ghulant Muhammad v. Abdul Ghaffar. (F)?? superstructure based on illegal or void order has no legs to stand and has to fall on the ground along with the order on which it was based, vide 2007 PTD 1337 passed by Federal-Tax-Ombudsman-Pakistan in case of Messers A.K. International, Rawalpindi v. Secretary, Revenue Division, Islamabad. (G)?? Order

Scope

Any superstructure based on illegal or void order has no legs to stand and has to fall on the ground along with the order on which it was based, vide 2007 PTD 430 passed by Federal Tax Ombudsman Pakistan in case of Messrs Sabir Daud Exports Faisalabad v. Secretary Revenue Division, Islamabad. (H)?? Judgment

Order/judgment without jurisdiction being void ab initio cannot be clothed with legality, merely because it has been upheld in appeal or revision by inadvertence

Any super structure on such void order during the course of appeal or revision shall not have the effect of providing legal cover and an order or judgment without jurisdiction shall continue to be void and nullity in law, notwithstanding a per incuriam order or judgment in appeal or revision, vide 2004 PLD 652 passed by Karachi-High-Court-Sindh in case of Muhammad Ayaz alias Cheena v. The State. (I)??? Void order

Distinction

Illegal order must be set aside through appropriate proceedings before proper forum within time stipulated by Statute of limitation while void order could be ignored, vide 2003 YLR 2356 passed by Lahore High Court Lahore in case of Mst. Kinza v. Judge Family Court Lahore. (J)??? Void order is nullity in the eye of law and does not confer any right on the parties

Party adversely affected by void order should take resort to proper proceedings for getting the same set aside in accordance with the provisions of law as and when it comes to the knowledge of the affected party, vide 2003 PLD 691 (sic) Sindh High Court. (K)?? No limitation runs against a void order which is non-existent in the eyes of law and which can even be ignored, vide 2002 PTD 87 passed by Karachi High Court Sindh in case of Federation of Pakistan v. Metropolitan Steel Corporation. (L)?? Void Order

Consequences

If on basis of a void order, subsequent orders have been passed either by the same Authority or by other Authorities, whole series of such orders together with superstructure of rights and obligation built upon them, must unless some statute or principle of law recognizing as legal the changed position of the parties was in operation, would fall to the ground because such orders had as little legal foundation as the void order on which they were founded

Anything done contrary to Regulations could not be regularized, vide 2000 PLD 168 passed by Karachi High Court Sindh in case of Zahir Ansari v. Karachi Development Authority. (M)? Administration of Justice

Void order need not be set aside

(Void order), vide 1991 CLC 456 passed by Karachi High Court Sindh in case of Sanghar Sugar Mills Ltd. v. Federation of Pakistan. (N)?? Any superstructure built on such void order would also collapse with striking down of that order, vide 1990 CLC 1974 passed by Lahore High Court, Lahore in case of Nasreen Iqbal v. Shaffat Ali. (O)?? Any superstructure built on a void order would also collapse with the struking down of void order

Case was remanded to Collector for fresh decision on merits after hearing the parties, vide 1989 CLC 2485 passed by Lahore High Court, Lahore in case of Murad v. Sardar Bibi. (P)?? Imposition of penalty without affording personal hearing to accused

Violation of principle of audi alteram partent

Void ab initio

Cannot be rectified by subsequent order without withdrawing void order-First order being void, second order in circumstances, held, amounted to review of first void order and such could not rectify or cure fatal flow of earlier order, vide 1983 PSC 983 passed by Service-Tribunal-Punjab in case of Javed Dastgir Mirza v. Additional Chief Secretary, SGA and Department.

29. The learned counsel for the appellant requested for a declaration may be given with direction that no one should be penalized for violations of other registered persons and due to negligence of the field forces of the Sales Tax, in fulfillment of condition, limitation prescribed in the Sales Tax Act, 1990. Which tantamounts to non-bona tide as to cause wrongful loss to the claimant as well as national exchequer under section 67 of the Sales Tax Act, 1990. Which is culpable not only under Pakistan Penal Code, 1860 vide section 163 as well as under Sales Tax Act, 1990, vide section 33 Clause 17.

30. Under the circumstances of the case the appeal, the adjudication was futile exercise and void and it is settled law that infrastructure founded on void order and proceedings is void and non-existent in the eyes of law. Thus the appeal is allowed and the appellate is entitled for immediate release of his held up refund claims as well as delayed for refund surcharge under section 67 of the Sales Tax Act, 1990, workable since the last date of the statutory period as envisaged under section 10 ibid till the date of payment. C.M.A./26/Tax(Trib.)?????????????????????????????????????????????????????????????????????????? Appeal accepted.