2001 PLP (Trib (PTD)

MUHAMMAD ASLAM (TECHNICAL MEMBER).‑‑‑This appeal has been filed by Messrs. Wali Cotton Ginning, Pressing & Oil Mills, Muzaffargarh against order‑in‑Appeals Nos.568 to 587 of 1998, dated 18‑9‑1998 passed by the Collector Appeals, Central Zone, Lahore.

2. The issue involved is sustainability or otherwise of the liability of additional tax of Rs.1,85,220 and the penalties of Rs.1,73,000 determined against the appellants by the learned Additional Collector of Sales Tax, Multan vide order‑in‑original Nos.62 to 70 of 1998, dated 3‑3‑1998 which was subsequently confirmed by the 1st Appellate Authority as well vide the impugned order referred to iii para. 1 above.

3. The appellants maintain that the whole issue has been dealt with in a slip‑shod manner by the lower Forums and that different parties were clubbed together in their orders and the liabilities determined against them in an arbitrary and whimsical manner, without caring as to whether the facts of one had any relevance or nexus with those of the other. To substantiate their stand, they have placed on record a statement showing details of the bales supplied by them from 16‑10‑1997 to 22‑2‑1998 alongwith invoice numbers, value of the goods, amount of sales tax chargeable thereon and the dates on which the same was paid to the national exchequer. Their plea is that as they had made all payments well before delivery of the goods to different textile mills detailed at serial No. l of the statement mentioned above, the authorities concerned should not have saddled them with the unwarranted liability of Rs.3,58,

220. They also maintain that even, otherwise; if at all there was any default in payment, determination of the liability of additional tax and the imposition of penalty was neither justified nor desirable as the same, at best, could be the result of some procedural inconsistency and not any wilful or deliberate attempt made by the appellants in this behalf.

4. The prayer of the appellants is that the orders passed by the lower Forums be set aside and the appeal accepted so that they are spared of the agony to which they have unnecessarily been subjected so far.

5. We have confronted the learned Departmental Representative, Mr. Shafqat Mehmood, Additional Collector, with the aforesaid version of the appellants. He has come up with a pathetic story of his own. He has made a categorical statement before the Tribunal that in spite of his repeated personal telephonic requests made to the Collector as well as the Additional Collector of Sales Tax at Multan, none has bothered to confirm or contradict the facts contained in the statement: He is, however, of the opinion that the stand of the appellants appears to be genuine and correct.

6. We have seen the record minutely, heard both sides in detail and find that almost everyone except .the learned Departmental Representative had done his level best to create and compound confusion after confusion in this case. The learned Additional Collector disposed of the present case alongwith 8 others without verifying whether facts involved therein were identical/similar or not. The learned Collector Appeals discussed facts pertaining to the case of Messrs Chohan Industries which does not figure in the order of the learned Additional Collector and disposed of 13 other appeals, one of which was of Messrs Alipur Cotton Factory which appears at serial No. 12 of the endorsement of the impugned order.

7. The report and parawise comments submitted by the Collectorate of Sales Tax, Multan do not throw much of light on the contents of the case and the factual and legal issues involved therein.

8. The written reply filed by Messrs Abdul Sattar & Co. the Chartered Accountants too is full of confusion in that:‑‑‑ (a) The No. of the order‑in‑appeal passed by the learned Collector Appeals is 568 to 587 of 1998 and not 273 of 1998. (b) The aforesaid order of the learned Collector which was despatched on 18‑9‑1998 could no have been received by the appellants on 14‑9‑1998. (c) It neither contains background of the case nor categorically contradicts the assertion of the Department that the appellants had defaulted in the payment of the principal amounts of sales tax.

9. It appears as if everyone involved in this case was too busy in "other pursuit" and wanted the unpleasant job to be done by the Tribunal. So, we have done all that on their behalf. ?

10. Now we take up the main issue i.e. whether the liabilities of additional tax and penalties have been determined against the appellants in a lawful manner or not. We find that as payments in respect of the principal amounts of sales tax in the instant case were made well before supply of the cotton lint, which fact has not been contradicted by the Department, there was no justification to saddle them with the burden of additional tax and penalties.

11. Even if some delay in payment had taken place, penal action could not be taken unless and until it was established that the same was wilful and deliberate and not the result of some procedural inconsistencies and lapses.

12. Upshot of the aforesaid is that as the orders appealed against suffer from palpable legal and factual infirmities, the same are not maintainable. Therefore, we declare these orders unlawful, null and void and of no legal effect.

13. The appeal succeeds on merit.

14. We can only wish and pray that a situation like this is, avoided in future because our country can no longer afford such an inward‑looking, restrictive and narrow approach on the part of those who have been vested with the power to decide the fate of our economy and the dispensation of justice. The least required in the changed economic scenario is that each and every functionary of the Government should do his utmost to facilitate and not obstruct the smooth flow of trade and industry. If we want to enter into the 21st Century as an honourable people, there is no option but to adopt a forward‑looking, service‑oriented and problem‑solving attitude and not the reversed‑gear approach. . M.B.A./Tax(Trib)???????????????????????????????????????????????????????? Order accordingly.