2003 PLP (Trib (PTD)

MIAN ABDUL QAYYUM, MEMBER (JUDICIAL).

Heard Record examined.

2. This order dispose of Appeals Nos. 527 of 2001 and 528 of 2001 as both the appeals arise out of the same impugned order and raise common question of law.

3. These appeals are directed against the Sales Tax Order-in Original No.114-150/2001, dated 31-1-2001 passed by the learned Deputy Collector (Adjudication), Multan.

4. The facts giving rise to these appeals are that the learned Adjudicating Officer on the basis of a contravention report against Messrs Al-Hussain Construction Company, Quetta Road, Sakhi Sarwar, issued a show-cause notice to the said unit requiring it to explain as to why it had failed to furnish sales tax returns for the tax periods from 2 of 1999 to 8 of 2000 and also to state the reason for not paying the sales tax due for the, above period in violation of sections 3, 6, 11, 22, 26, 33 and 34 of the Sales Tax Act, 1990. The hearing of the case was fixed for 22-1-2001 and 30-1-2001 but no one appeared on behalf of Messrs Al-Hussain Construction Company nor did it file any written statement and according to para 3 of the impugned order it refused to receive the notices sent to it. The learned Adjudicating Officer thereafter (sic) the unit responsible to pay a penalty of Rs.5,000 for each of the tax period from 2 of 1999 to 6 of 2000 and Rs.2,500 for each of the succeeding tax periods for not filing the tax returns. The learned Adjudicating Officer also directed the Assistant Collector (Audit) D.G. Khan Division to carry out audit of the unit and put up contravention report regarding the tax evaded by it during these tax periods.

5. Vide para 6 of the impugned order, the learned Adjudicating Officer applied the impugned order to 36 other units out of which appellant in Appeal No.527 of 2001 appears at Sr. No.20 and the appellant in Appeal No.528 of 2001 finds mention against Sr. No. 1.

6. Both the appeals were reported to be barred by time by the Assistant Registrar. Applications seeking condonation of delay duly supported with affidavits have been submitted in both the appeals wherein it has been averred that the copies of the impugned order were never served on the appellants and that the appellants themselves collected the copies of the impugned order from the concerned office and thereafter filed the appeals. The department has not brought on record counter-affidavit of any responsible officer/official. No dispatch receipts or service certificates have been produced either to show that copies of the impugned order were dispatched to the appellants and these were actually received by them. This being the position, the two applications seeking condonation of delay are accepted and delay in filing of the two appeals is condoned.

7. Admittedly, the impugned/order does not contain any "narration of relevant facts" in respect of the appellants nor does it describe the "Points in issue" between the parties. The "reasons" which prevailed with the learned Adjudicating Officer for inflicting penalty against the appellants are also not given in the impugned order. The fact that appellants were not served with any notice of hearing for 30-1-2001 has also not been challenged by the learned departmental representative. For all intents and purposes, the impugned order in respect of the two appellants is, therefore, a nullity in the eye of taw having been passed without hearing the appellants and also for the reasons that the same does not come-up to the requirements of the "speaking order" which could be legally sustained. At this stage, the learned D.R. submitted that to 'be fair to the appellants he would suggest that the impugned order to the extent of the appellants may be set aside and their cases may be remitted for de novo decision by the learned Adjudicating Officer. The learned counsel for the appellants has accepted this suggestion.

8. Keeping in view the above statement by learned D.R. and its acceptance by the learned counsel for the appellants, the impugned order in this appeal as well as in Appeal No.528 of 2001. to the extent, of the appellants is set aside and both the cases are remanded to the learned Adjudicating Officer for 'a fresh decision in accordance with law after hearing the parties and after receiving the evidence which they may like to produce. C.M.A./704/Tax (Trib.) Cases remanded.