Adjudication

Petitioner / Broadcasting company was aggrieved of Letters issued by Pakistan Electronic Media Regulatory Authority (PEMRA) approving recommendations made by Council of Complaints (COC)

Validity

Mere narration in letters in question that recommendations of COC were approved by competent authority did not suffice for purpose of compliance with R.10 of Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010

Minutes of various meetings of PEMRA where recommendations of COC underpinning each of the letters in question had been considered were also placed on record under cover of a statement to reinforce contention regarding compliance with codal requirements

Such statements did not serve to advance the case of PEMRA as those did not reflect any value judgment or application of mind

Leave refusing order relied upon by authorities was of no avail, since it addressed only a question of delegation and the subject of R.10 of Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010 was not a point under discussion

High Court set aside letters in question issued against petitioner / broadcasting company

Constitutional petition was allowed, in circumstances.

Contention of the importer/appellant was that the order-in-original passed by the adjudicating authority was issued in violation of mandatory provision of time limit contained in S. 179(3) of the Customs Act, 1969

Validity

Impugned order passed the adjudicating authority mentioned that the extension in completion of adjudication proceedings had been duly given by the competent authority, which clearly explained that the contention of the appellant/importer, regarding time-barred issuance of order-in-original, was not of any legal significance, hence had no bearing on proceedings of the present appeal as the time period was extended by the competent authority

Appeal filed by the importer was dismissed , in circumstances.

Obligatory duty of a Judge/Court was to apply correct law to a lis and it was not upon litigant to point out which law that was appliable

Primary duty of Court was to do justice and to apply correct law to facts of a case and same was exclusively the duty of the Judge/Court

To perpetuate an error was no virtue but to correct the same was compulsion of judicial conscience and legal maxim "coram non judice" indicated a proceeding which was outside authority of a Judge or without legal jurisdiction.

Petitioner sought confessional statement adjudged through Constitutional petition in connection with criminal case wherein he was convicted and even appeal was declined

Validity

Status of such piece of evidence could not be sought to be adjudged in Constitutional petition.

Order-in-original was issued by the Collector (Adjudication) after a lapse of 157 days from the date of show cause notice, however, customs authorities contended that the judgment was reserved on the 116th day after the date of the show cause notice, thus, it was within the time period of 120 days

Question as to whether the customs authorities were justified in treating the date of conclusion of hearing and for judgment to be reserved as the date of disposal of the show cause notice

Held, that on the 116th day after issuance of show-cause notice no decision was verbally announced by the adjudicating officer nor was any decision communicated to the parties prior to the subsequent issuance of the order-in-original

Adjudicatory decision could not be said to have been recorded/taken without announcement or communication thereof to the parties

Law was quite accommodating for the taxing authority as an extension was available beyond the originally prescribed period of 120 days for rendition of a decision

Even though no decision was communicated within the said period, such an extension could be sought and granted subsequently but in such an event it was mandatory that the decision came within 180 days after the date of show cause notice

In the present case, however, the Collector did not even apply for an extension but consumed 157 days to record the reasons for his judgment and to communicate the same to the parties

Resultantly the impugned decision was beyond time prescribed in S. 179(3) of the Customs Act, 1969, and was therefore, held to be invalid

Appeal was allowed accordingly.

Order-in-original was issued by the Collector (Adjudication) after a lapse of 157 days from the date of show cause notice, however, customs authorities contended that the judgment was reserved on the 116th day after the date of the show cause notice, thus, it was within the time period of 120 days

Question as to whether the customs authorities were justified in treating the date of conclusion of hearing and for judgment to be reserved as the date of disposal of the show cause notice

Held, that on the 116th day after issuance of show-cause notice no decision was verbally announced by the adjudicating officer nor was any decision communicated to the parties prior to the subsequent issuance of the order-in-original

Adjudicatory decision could not be said to have been recorded/taken without announcement or communication thereof to the parties

Law was quite accommodating for the taxing authority as an extension was available beyond the originally prescribed period of 120 days for rendition of a decision

Even though no decision was communicated within the said period, such an extension could be sought and granted subsequently but in such an event it was mandatory that the decision came within 180 days after the date of show cause notice

In the present case, however, the Collector did not even apply for an extension but consumed 157 days to record the reasons for his judgment and to communicate the same to the parties

Resultantly the impugned decision was beyond time prescribed in S. 179(3) of the Customs Act, 1969, and was therefore, held to be invalid

Appeal was allowed accordingly.

Suit filed by customer seeking declaration that customer was not liable to pay "appreciation charges" on finance facility, was decreed after Banking Court dismissed leave to defend application of defendant Financial Institution

Validity

Suit was decreed by Banking Court without considering arguments raised by defendant in its application for leave to defend and there was nothing before the Banking Court on basis of which it could conclude that said appreciation charges were contrary to applicable State Bank Regulations

Impugned order was set aside and case was remanded to Banking Court

Appeal was allowed accordingly.

Deprivation of women folk from their due share in property through newly conceived or invented grotesque devices such as Will deed, gift/Tamleek deed or under the garb of custom, family honour, regional culture as well as under coercion were common and in such transaction(s) courts, were saddled with unalienable obligation to show extraordinary circumspection, care and caution while dealing and deciding the matter of alienation of share or right of the women folk.

Court, while deciding bail application would consider allegations made in FIR, statements recorded under S. 161, Cr.P.C., nature and gravity of charge; other incriminating material against accused; legal pleas raised by accused and relevant laws.

Court, while deciding bail application would consider allegations made in FIR, statements recorded under S. 161, Cr.P.C., nature and gravity of charge, other incriminating material against accused, legal pleas raised by accused and the relevant laws.

While deciding bail application court would consider allegations made in FIR, statements recorded under section 161 Cr. P. C., nature and gravity of charge, other incriminating material against accused, legal pleas raised by accused and relevant law.

Ex-Officio Justice of Peace was required to pass the speaking order.

Question before the High Court was "whether limitation provided under S. 36(3) of the Sales Tax Act, 1990 was mandatory or directory and whether the same could be condoned by virtue of S. 74 of the Sales Tax Act, 1990"

Held, S. 74 of the Sales Tax Act, 1990 had a general application and would have an overriding effect over the first proviso to S. 36(3) of the Sales Tax Act, 1990 and would be taken as an exception thereto

Department was, therefore, competent to extend time limit for decision of a case by Adjudicating Officer even though original limitation under S. 36(3) of the Sales Tax Act, 1990 had expired

Department under S. 74 of the Sales Tax Act, 1990 however, did not have unfettered powers to extend time and such power should be exercised after application of mind and within reasonable time

Extension of time should be for a reasonable period and could not be for an indefinite period and for purposes of S.36(3) of the Sales Tax Act, 1990 after expiry of the two time lines envisaged in the proviso thereof, Department would have six months within which it may grant an extension, which extension should not exceed six months

Such reasonable time if lapsed, then transaction would be treated as past and closed and a vested right would accrue in favor of the registered person / taxpayer

Reference was answered, accordingly.

According S. 130(10) of Income Tax Ordinance, 2001, in case of difference of opinion between members of Bench on a point, they would state the point on which they differ, meaning thereby that they would formulate questions and then send the same to Chairperson for hearing on that point by Referee Bench which may comprise of single member or more to decide the said points or questions but decision of majority should be final

Referee Bench consisting of one or more members of Tribunal should be bound to the reply or adjudicate questions referred to the Bench by said Bench had no mandate to go beyond formulated questions.

Non-compliance with mandatory provisions of Ss.9 & 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001

Effect

Financial Institutions (Recovery of Finances) Ordinance, 2001 was a special law, and by virtue of S.4 thereof, its provisions overrode all other laws, and the provisions contained in Ss.9 & 10 of the Ordinance required strict compliance

Non-compliance with said sections attracted consequences of rejection of application of leave to defend, along with a decree.

Where a lis involving a disputed question of fact was decided, it had to be decided on a proper appraisal of evidence, and where a lis involving appreciation of evidence or interpretation of law was decided, it had to be decided in accordance with the well-recognized principles laid down by the Supreme Court from time to time.

Even if the adjournments sought by the appellants was approximately (30) days and the stay given by the court which was of approximately (260) days were excluded even then the order in original was time-barred by 112 days

Provisions relating to limitation were mandatory in nature for implementation by all subordinate judicial and quasi-judicial forums in view of doctrines of binding precedents and stare decisis.

Taxpayer contended that show-cause notice issued by the Deputy Collector was beyond his pecuniary jurisdiction; and main case was decided by the First Appellate Authority which involved goods valuing Rs.13,059,960 and the show-cause notice was issued on 2-12-1992, when the adjudication powers were conferred by S.R.O. 994(I)/92 dated 8-10-1992, issued under S.43 of the Sales Tax Act, 1990

Validity

Show-cause notice was issued beyond pecuniary jurisdiction of the Deputy Collector

Notice issued without jurisdiction was illegal and unlawful and no action could be taken against a citizen in pursuance thereof

Order without jurisdiction was a fraud on the law and could never be assumed to have been passed under the particular statute.

Authorities exercising statutory powers of appeal and revision affecting valuable rights of the parties act in a quasi judicial if not, judicial capacity and it must pass a speaking order duly supported by reasoning showing due application to facts and law applicable while disposing of the case before it

Orders lacking such criteria were without lawful authority and of no legal effect, beyond jurisdiction and coram non judice.

Order-in-original and order-in-appeal issued by the adjudicating and appellate authorities showed that these were not speaking orders in which all issues raised by the appellant had been discussed and dealt with properly

Such orders were deemed to be without jurisdiction in which the competent authorities had not discussed questions of facts and questions of law addressed by the taxpayer.

Mere filing of petition for leave to appeal, would not operate as a bar for High Court to decide constitutional petition on its own merits.

Complaint was that Sales Tax Authorities were pestering the complainant with different notices and visits of the audit teams

Department in reply submitted that complainant was evading sales tax; Sui gas bills showed that factory was running; owner had given certificates of his monthly average sales; matter was ser}t to the Collector (Adjudication) in form of "Contravention Report" and was pending adjudication and did not fall within the jurisdiction of the Federal Tax Ombudsman

Validity

Complaint was filed not challenging the amount of tax assessed but the manner in which the proceedings had been conducted

Complainant had stated that the process employed on the basis of a biased complaint filed in the Central Board of Revenue, denied the legal right to the complainant

Maladministration included, decisions, processes, acts of omission or commission which were contrary to law, rules regulations and were arbitrary

Manner in which the proceedings were conducted, then kept in abeyance and revived once again indicated maladministration

Adjudication did not fall within the definition of "being sub-judice before the Court of competent jurisdiction" within the meaning of section 9(2)(a) of the Federal Tax Ombudsman Ordinance, 2000

Objection was therefore overruled

Federal Tax Ombudsman recommended that the Deputy Collector (Adjudication) of Collectorate of Customs, Sales Tax and Central Excise to decide the case of the complainant on basis of impartial inquiry excluding the Senior Auditor who was author of contravention report.

Department had alleged that delay was caused due to changes in jurisdiction and shifting/transfer of record the case file went missing

Validity

Very disturbing aspect was prevailing in the departments where there was no security for the record which was a serious maladministration

Federal Tax Ombudsman recommended that Central Board of Revenue to produce manual circular or instructions relating to maintenance, preservation and transfer of record from one office to another

Parties should be informed of such transfer

Transferee department should issue intimation to parties

Systemic reforms be suggested.