Appeal to the Appellate Tribunal

Appellant/assessee sought stay of proceedings in consequence of an order passed by Commissioner Inland Revenue (Appeals)

Validity

Commissioner Inland Revenue (Appeals) had annulled the order of the assessing officer, therefore, no demand existed against the appellant/assessee

Department could only proceed afresh if the facts of the case and legal provisions so warranted

Request for granting stay of proceedings was not allowed.

Appellate Tribunal while invoking its jurisdiction under S. 221 of Income Tax Ordinance, 2001 on its own observed that in an earlier order it had committed some grave mistakes of law, which were based on some omitted law and statement of counsel for the appellant who had stated that the Commissioner (Appeals) had refused to entertain appeals manually, which was factually incorrect

Appellate Tribunal could entertain an appeal under S.131(1) of the Income Tax Ordinance, 2001 against an order passed by the Commissioner (Appeals) under S. 129 of the Income Tax Ordinance, 2001

Subsection (4) of S. 129 explicitly mandated that as soon as practicable after deciding an appeal, the Commissioner (Appeals) would serve his order on the appellant and the Commissioner

Said provision clearly provided that a written order had to be passed by the Commissioner (Appeals), irrespective of fate of matter argued before him by any taxpayer

If written order was not passed by the Commissioner (Appeals), Ss.127, 128 and 129 would become redundant

Redundancy was not attributable to the law

Tribunal observed that appeals should not have been entertained by the Tribunal under S. 131 of the Income Tax Ordinance, 2001, as no written orders were in field

Earlier order passed by the Appellate Tribunal was re-called and withdrawn.

Section 194-A of the Customs Act, 1969, shows that remedy of an appeal is provided against order passed under S. 179 by an Officer of Customs not below the rank of Additional Collector; an order passed by the Collector (Appeals) under S. 193; an order passed under S.195 by the Federal Board of Revenue (FBR) or an Officer of Customs not below the rank of Additional Collector; an order passed in revision by Director General, Customs under S. 25-D provided that such appeal shall be heard by a special bench of the Tribunal consisting of one Technical Member and one Judicial Member

Under S. 194-A(2) of the Customs Act, 1969, the FBR or Collector of Customs can prefer an appeal to the Customs Appellate Tribunal if aggrieved by an order passed by Collector (Appeals).

Department assailed order passed by Customs Appellate Tribunal on the ground that since the order in original was passed under S. 13, therefore, Customs Appellate Tribunal did not have jurisdiction to entertain appeal as remedy of an appeal against order passed under S. 13 is not provided under S. 194-A

Validity

Section 194-A did not provide a right of an appeal against an order passed under S. 13 by Collector of Customs (Adjudication)

Order passed by Customs Appellate Tribunal was set aside and the reference was answered in affirmative.

If a person is not desirous of depositing the adjudged amount of duty and imposed penalty, he is not barred under Ss. 193(1) & 194-A of the Customs Act, 1969, from assailing the impugned order.

Nowhere in the impugned order it was mentioned or directed that the copy of the said order be transmitted to the appellant

Neither the copy of the impugned order was dispatched to the appellant nor any intimation of passing of the final order was given

Contention of appellant was that the final order came into its knowledge when recovery notice was received

Contention of appellant appeared to be correct coupled with the fact that the whole argument on the point of limitation was not controverted by the departmental representative

Appeal was considered and entertained as filed within limitation.

Appellant assailed order passed by Commissioner on the ground that the Appellate Tribunal had remanded the case to the Additional Commissioner therefore, Commissioner had no authority to pass the impugned order

Validity

Appellate Tribunal, while remanding the case, had made specific directions that the matter would be heard by the first forum i.e. the assessing officer (Additional Commissioner)

Appellate Tribunal had further directed that the observations made by the Tribunal would be taken into consideration and a speaking order would be passed but none of the directions were complied with

Commissioner had circumvented the jurisdiction of the assessing officer and issued fresh show cause notice without having any need for the same

Reference to S.60(2) of Punjab Sales Tax on Services Act, 2012 was of no avail as the case was one of non-compliance of specific direction made by the Appellate Tribunal

Appellate Tribunal set aside the order passed by Commissioner and remanded the case to the Additional Commissioner for decision afresh.

When the right of appeal was available before the officer of customs under Ss. 193 & 194A, Customs Act, 1969; S. 195 became un-operational and could not be exercised under any circumstance.

Deputy Collector of Customs (Appraisement), after lapse of two years, passed re-assessment order through which recovery was created

Appellant filed appeal against the assessment order which was allowed by Collector of Customs (Appeals) on the ground of non-issuance of show-cause notice

Deputy Collector of Customs (Appraisement), thereafter, framed contravention report and Deputy Collector of Customs (Adjudication) issued show-cause notice

Deputy Collector of Customs (Adjudication) passed order-in-original and appeal filed by importer against said order was dismissed

Validity

Proper course of action available with Customs authorities against the order of Collector of Customs (Appeals) was to file appeal before Customs Appellate Tribunal

Customs authorities could not issue show-cause notice and pass order-in-original in the presence of Collector's earlier order

Only one order had to remain in field, no second order was permitted to pile upon the existing order which had attained finality

Appellate Tribunal allowed the appeal, in circumstances.

Petitioner/taxpayer contended that his appeal with regard to disputed amount of sales tax was pending before Appellate Tribunal, Inland Revenue; and during the pendency of said appeal he was issued notice for recovery of amount

Contention of petitioner/taxpayer was that unless appeal was decided by at least one independent forum outside the departmental hierarchy, recovery should not be made by Department

High Court directed Appellate Tribunal Inland Revenue, to decide the appeal or stay application of the petitioner/taxpayer within a period of thirty days, till decision of appeal or stay application, whichever was earlier and no coercive measures should be adopted against the petitioner/taxpayer for the disputed amount

Constitutional petition was disposed of, accordingly.

Operating para of the order-in-original in compliance to the directions of Appellate Tribunal's order did not answer the queries posed by it

Adjudicating Authority without application of mind fairly inked that he did not find any cogent reasons to alter the order-in-original and revive it by putting life into a dead body

Order had been based by reviving an order which had lost its validity was in itself a nullity in law and was a void order

Answer to question "whether upholding of an order which had already been set aside by the Appellate Tribunal could be revived by the original Adjudicating Authority to whom it was remanded to decide a fresh" was answered in the negative.

Factum of passing the order-in-original came to the knowledge of the appellant on 20-02-2012 certified/attested copy of the order-in-original was issued and was received on 14-3-2012, in such scenario the order-in-original could not be communicated or served upon the appellant in person

Section 215 of the Customs Act, 1969 had enumerated the modes and the manner in which service of order, summons etc. could be affected

Evidently, such mode of service had not been followed for the purpose of service of order-in-original upon the appellant

Where an order or judgment had not been communicated or served or conveyed to the party, limitation in filing the appeal would not start running

Circumstances warranted to condone the delay in filing the appeal and it was ordered by the Appellate Tribunal accordingly.

When Appellate Tribunal pointed out the said deficiency, the appellant filed application for condonation, which were not permissible under the law

Despite the fact that application for condonation was not permissible, appellant failed to advance cogent reasons not filing appeal in time except with plea that the order was misplaced

Plea taken was contrary to provision of Sub-S.(3) of S.194-A and S.215 of the Customs Act, 1969

Relying on loss of order received, loss of record of the case and receipt of the certified copy was not sufficient for enough to be considered a valid argument and that too without fixing the responsibility for lapse

Delay in filing appeal being a technical defect could not wash away the right of appellant

Such plea was not valid as the limitation was provided in the statute specifically and one had to adhere to those

Non-adherence to the mandatory requirement of law is always fatal

Time limitation is mandatory obligation and any order passed in deviation thereof was nullity in law.