Appeal before Appellate Tribunal

2016 PTD 2545 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

Ss. 221 & 132 & 131Appeal before Appellate TribunalRectification of mistakeScope

Department moved application for rectification of an error in the order of the Appellate Tribunal on the ground that the Appellate Tribunal had relied on a judgment of a High Court (reported as 2004 PTD 2267) and ignored a judgment of the Supreme Court (reported as 2001 PTD 2094) which supported contention of the Department

Validity

Contention of the Department regarding judgment of the Supreme Court was not tenable as the said judgment did not address the issue in question and the judgment of High Court relied on in the impugned order had not been suspended by the Supreme Court therefore, the Appellate Tribunal had rightly placed reliance on said judgment

No mistake apparent on the record in the impugned order was present

Application was rejected, in circumstances.

2015 PTD 1160 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss.132, 131, 2(13), 2(13A) & 209Appeal before Appellate TribunalJurisdiction of Income Tax AuthoritiesFiling of appeal by Commissioner was not a mere administrative or ministerial act

Question before High Court was whether an appeal before Appellate Tribunal was rightly held to be not maintainable on the ground that since same was filed by the Commissioner, who earlier, when he was Commissioner (Appeals), had passed the order against which he filed appeal, therefore he could not file appeal against his own order

Contention of the Department was that signing of memorandum of appeal was a mere administrative/ministerial act and Commissioner had no option but to sign the memorandum of appeal against his own order

Held, that collective reading of Ss. 2(13), 209(1) & 209(2) of the Income Tax Ordinance, 2001 made it clear that the Commissioner was not the only authority who could file appeal against his own judgment as Commissioner (Appeals) and he could have asked his immediate superior to assign the power of filing appeal against a particular order to any other officer of Inland Revenue

Section 132 of the Income Tax Ordinance, 2001 recognized the taxpayer and the Commissioner as parties for the purpose of filing of an appeal before the Appellate Tribunal

Act of filing of appeal after taking the decision that the Department was aggrieved from the order; could not be termed as an Administrative or Ministerial act by any stretch of interpretation

Filing of appeal was one of the basic functions of the Commissioner under the Income Tax Ordinance, 2001 therefore, it was not an administrative act

Filing of an appeal against an order required application of mind and exercise of discretion based on personal judgment that department was aggrieved from an order

Under well recognized principles of law, based on fair play, no one could be a judge on his own decision and such principle could not be defeated by changing the caps of designations particularly when a way out was available under the Income Tax Ordinance, 2001 of assigning special jurisdiction to any other officer of Inland Revenue for filing of such appeals

Impugned order was therefore rightly passed

Reference was answered, accordingly.

2014 PTD 1850 CUSTOMS APPELLATE TRIBUNAL BENCH-II KARACHI Judicial Precedent

S.194-AAppeal before appellate tribunalLocus Standi to file appeal by owner of confiscated goods, who had not joined adjudication proceedingsScope-Customs officials seized an oil tanker found loaded with smuggled HSD OilAfter serving show-cause notice, Oil tanker loaded with smuggled HSD Oil was confiscated

Oil Marketing Company/owner of the confiscated oil did not join the adjudication proceedings but challenged the order-in-original before Appellate Tribunal

Validity

Appeal had been filed by Oil Marketing Company who was the non-entity in the case

No order had been passed against said appellant but the order was against owner of the seized oil tanker and driver of the tanker, who did not file appeal before the Appellate Tribunal within prescribed period, therefore the order-in-original had attained finality-Order having attained finality could not be disturbed at any later stage by any Authority including courts

Appellant/Oil Marketing Company had no locus-standi to file appeal as if intentionally had not joined the adjudication proceedings for claiming the ownership of the transported oil inspite of having knowledge from the owner of the tanker/driver regarding detention/seizure of the oil tanker and issuance of show-cause notice

Appeal was dismissed in limine.

2014 PTD 774 CUSTOMS-APPELLATE-TRIBUNAL-LAHORE Judicial Precedent

Ss. 179(3) & 194-AAppeal before Appellate TribunalOrder in original was time-barredEffectImpugned penalty order was passed by Additional Collector of Customs after the expiry of prescribed time periodScope

Contention of the appellant importer was that order in original was passed after the expiry of 120 days of issuance of show-cause notice

Validity

Order-in-original was passed after the expiry of initial period of 120 days without any extension

Order-in-original was silent regarding the extension of time and besides nothing was placed on record of the Tribunal that as to whether any extension was given by the Collector of Customs in lawful legal prescribed manner

Order-in-original was barred by time and could be enforceable being without power/jurisdiction

Order-in-original as well as impugned appellate order of the Collector of Customs (Appeals) based on proceedings which were void ab initio, were set aside

Appeal was allowed.

2014 PTD 218 CUSTOMS-APPELLATE-TRIBUNAL-KARACHI Judicial Precedent

Ss. 194-A & 194-B(2)Appeal before Appellate TribunalRectification of factual or legal error in order passed by TribunalPowers and scope

Tribunal may amend any of its order with a view to rectify any mistake apparent from the record at any time within one year of that order

Tribunal had inherent jurisdiction to rectify the error whether factual or legal floating on the surface on an order

Error on the face of record was not restricted to clerical error or arithmetical mistake

Appellate Tribunal being final fact finding authority could rectify its orders.

2014 PTD 52 CUSTOMS-APPELLATE-TRIBUNAL-KARACHI Judicial Precedent

S. 194-AConstitution of Pakistan, Art.25Appeal before Appellate TribunalDiscriminatory treatment

Facility allowed by the other Collectorate of Customs of the country was denied by the Model Customs Collectorate (MCC) of Pakistan Computerized Collectorate of Customs (PACCS)

Effect

Treatment given to the appellant was against the principles enshrined in Art. 25 of the Constitution

Impugned orders were set aside

Appeal of the importer was allowed.

2014 PTD 52 CUSTOMS-APPELLATE-TRIBUNAL-KARACHI Judicial Precedent

Ss. 193-A(3) & 194-AAppeal before Appellate TribunalCollector of Customs (Appeals) passed order in appeal after the expiry of prescribed initial time period of 120 daysScope

Order of extension in time period for the decision of appeal was not passed prior to the expiry of initial period of 120 days

Extension in time period granted after the expiry of initial period was unlawful and without jurisdiction

Extension in time period was given without answering the condition prescribed for exercising such powers i.e. Collector (Appeals) had to apply his mind and after making an objective assessment, if it came to the conclusion that the extension of time was to be granted, he had to grant the same prior to expiry of the initial period and not merely on the basis of his personal opinion

Where exercise of jurisdiction by any Authority or Court or Tribunal was made subject to existence of specific condition, then such power could not be exercised in the absence of that condition

Extension of time in passing order in appeal was akin to giving a new lease of life into dead entity and was tantamount to flogging a dead horse

If an event or documents had become dead on account of non-timely extension of time period, the same was legally considered dead and new spirit could not be infused into it by means or on account of any reason whatsoever.

2014 PTD 52 CUSTOMS-APPELLATE-TRIBUNAL-KARACHI Judicial Precedent

Ss. 32 (1), (2), (3) & 194-AAppeal before Appellate TribunalMisdeclarationShort assessed duty, recovery ofShow-cause noticePrerequisitesAppellant/importer was served with a show-cause notice by the customs authorities

Allegation against the appellant was that he imported ester of Acrylic Acid attracting customs duty, sales tax but with a view to availing inadmissible benefits of zero percent/exemption from customs duty he misdeclared the imported items as Methyl Acrylate

Customs authorities found the appellant guilty of deliberate mis-declaration and passed an order for recovery of exempted amount of customs duty, sales tax and income tax and Collector of Customs (Appeals) dismissed the appeal of the appellant

Appellant in filing goods declaration had not made any false statement regarding the description, quantity of the goods

Appellant was not charged with allegation of any collusion by the customs authorities, therefore show-cause notice under S. 32(2) of the Customs Act, 1969 could not be acted upon

Validity

Appellant transmitted goods declaration with the Model Customs Collectorate (MCC) of Pakistan Customs Computerized System (PACCS) containing description "Methyl Acryalate" on the basis of commodity name in letter of credit, invoice, B/L, certificate of origin and he incorporated the said information of the Goods Declaration (GD) under Pakistan Customs Tariff (PCT) heading with the exemption of customs duty, Sales tax on the basis of infield notifications and Income Tax against certificate issued by the Commissioner of Income Tax

Software of the Pakistan Customs Computerized System (PACCS) had been designed by the agility in such a manner that upon receipt of the goods declaration the system co-relates each declaration with the corresponding Pakistan Customs Tariff (PCT) heading, the claimed notifications and the exemption certificate, which were fed therein either by the FBR/Project Director or Commissioner of Income Tax at their own and after finding those in accordance with the declaration the system pass assessment/clearance order in exercise of its inbuilt vested authority, such fact stood validated from examination of the import documents and goods declaration

Appellant had made no misdeclaration in material and invoking the provisions of S. 32 by customs authorities was erroneous in circumstances

Show-cause notice issued to appellant did not remotely hint the submission of any false documents or statement while transmitting goods declaration with the Model Customs Collectorate (MCC) of Pakistan Customs Computerized System (PACCS) or about the collusion with the project official of Pakistan Customs Computerized System (PACCS) rendering the show-cause notice and the subsequent proceeding void ab initio

Order-in-original passed by customs authorities and order-in-appeal passed by the Collector of Customs (Appeals) was set aside

Appeal was allowed.

2013 PTD 2130 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

S. 46Appeal before Appellate Tribunal

Appellant's application for allowing him to raise additional legal grounds in memo. of appeal not raised therein earlier due to inadvertence, mistake and error

Validity

Law neither debarred appellant from raising additional grounds nor restrained Appellate Authority/Tribunal from entertaining same

Appellant could raise any new or additional legal ground for first time before Tribunal even though not raised either in memo. of appeal before Tribunal or Appellate Authority or at stage of adjudication proceedings

Tribunal would be bound to entertain any new legal ground and render decision thereon as its disallowance would result in injustice

Tribunal allowed appellant to argue additional legal grounds along with grounds already raised in memo of appeal.

2013 PTD 2320 CUSTOMS APPELLATE TRIBUNAL BENCH-II KARACHI Judicial Precedent

Ss. 179(3), 193-A(3) & 194-AAppeal before Appellate TribunalSmuggled goodsOrder of confiscation of goods was time-barredScopeCustoms Authorities detained the smuggled goods from the possession of appellantAppellant challenged the order of Customs authorities being time-barred before Collector of Customs (Appeals)Collector (Appeals) dismissed the appeal of the appellant

Contention of the appellant was that order in original passed by the Customs Authorities and order in appeal passed by Collector Customs (Appeals) was time barred

Validity

Appellant was found involved in smuggling of the goods or if not the purchase of smuggled goods and his act was an unlawful act

While indulging in unlawful activity with the intention of evading payment of duty and taxes wilfully and consciously, the appellant was not entitled to take shelter behind the plea that the orders were time barred

Party seeking equity must have equities in his favour

No one could be allowed to take advantage of its wrong act or fraud played by him under the blanket of the provision of the Customs Act, 1969

Appellant was legally stopped from challenging validity of the order-in-original/appeal

Appellant had not approached the Appellate Tribunal with clean hands and was not entitled for any relief

Appeal was dismissed.

2013 PTD 2258 CUSTOMS-APPELLATE-TRIBUNAL-KARACHI Judicial Precedent

Ss.32(1), 2, 32-A, 207, 208, 209 & 194-AAppeal before Appellate TribunalMisdeclarationEvasion of tax and dutiesShow-cause noticePersonal penalty on Clearing Agent without invoking the penal provision in the show-cause noticeScope

Importer was served with a show-cause notice for evading minimum value addition tax by disposing of the impugned goods in the same state without putting them into further process of manufacturing

Customs official while passing order of recovery against importer also imposed personal penalty on Clearing Agent for not fulfilling its responsibilities under law

Contention of the appellant (Clearing Agent) was that in absence of any mala fide on the part of Clearing Agent the impugned penalty could not be imposed and opinion framed by the adjudicating officer was without any evidence

Validity

Clearing Agent had filed the goods declaration and discharged his responsibility correctly

Act of connivance as charged in the show-cause notice had not been specified

Neither specific charge of connivance as to the role of Clearing Agent had been mentioned nor the relevant provisions of Ss.207, 208 & 209 of the Customs Act, 1969 had been invoked

Invoking penal provisions of law without mentioning the same in show-cause notice was void

Appeal was allowed.