Appellate Tribunal

Under S. 12A of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, the Federal Government was required to constitute an Appellate Tribunal

Notification of constitution of the Appellate Tribunal had already been issued but Members of the same had not been appointed yet

Supreme Court directed that Federal Government shall appoint Members of the Appellate Tribunal within 10 days and make the same functional and provide all necessary infrastructure for its immediate working

Case was adjourned.

Failure on part of Appellate Tribunal to advert to questions raised before it or to take relevant matters into consideration, which rendered findings of fact as perverse; or non-reading or misreading of evidence and material on record; raised questions of law in context of S.47 of the Sales Tax Act, 1990

Statutory duty existed on Appellate Tribunal to decide matters before it after taking into consideration all relevant facts; to weigh reasons for and against; and to pass a speaking order or judgment

Appellate Tribunal being the last statutory forum assumed great importance on questions of levy, charge and payment of tax.

Petitioner company was aggrieved of the order passed by Customs Appellate Tribunal where Members of the Bench had difference of opinion and Member did not resort to the procedure as mandated by S.194-C(5) of Customs Act, 1969

Validity

Members were supposed to formulate point or points on which they differed and send the case to the Chairman for referring matter to a third member; after three members had recorded their opinion, order of Tribunal could be formulated and signed by all three Members who had heard the parties

High Court set aside order of the Tribunal and remanded case to Customs Appellate Tribunal for decision afresh.

Where order of Collector (Appeals) was impugned before Appellate Tribunal, and findings of fact were challenged, it was the duty of Appellate Tribunal to consider and dilate upon such findings of fact arrived at by Collector (Appeals), if such findings of fact were found to be incorrect by the Appellate Tribunal.

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.

Tribunal of fact had no right or jurisdiction to come to a conclusion entirely contrary to the one reached by another Bench of the same Tribunal on same facts

If a Bench of a Tribunal on identical facts was allowed to come to a conclusion directly opposed to conclusion reached by another Bench of the Tribunal on an earlier occasion; the same would be destructive of institutional integrity itself and if the Tribunal wanted to take an opinion different from one taken by an earlier Bench, then it should place matter before the Chairman of the Tribunal so that he could have the case referred to a Full Larger Bench of the Tribunal consisting of three or more members.

Appellate Tribunal is the first independent forum outside the department to decide rights and liabilities of taxpayer as well as safeguarding the interests of exchequer

Proceedings before Appellate Tribunal are judicial proceedings

Appellate Tribunal has the power to stay recovery of tax under relevant statute or increase burden of liability.

Appellate Tribunal is the first independent forum outside the department to decide rights and liabilities of taxpayer as well as safeguarding the interests of exchequer

Proceedings before Appellate Tribunal are judicial proceedings

Appellate Tribunal has the power to stay recovery of tax under relevant statute or increase burden of liability.

High Court while exercising appellate jurisdiction under S. 196 of the Customs Act, 1969, was not free to embark upon an unfettered inquiry into factual aspects of the case which had been properly considered and decided by the Appellate Tribunal.

High Court while exercising appellate jurisdiction under S. 196 of the Customs Act, 1969, was not free to embark upon an unfettered inquiry into factual aspects of the case which had been properly considered and decided by the Appellate Tribunal.

Appellate Tribunal was the last fact finding forum in the hierarchy of taxation laws and therefore it was bound to discharge its functions diligently

Any opinion on law, by the Appellate Tribunal would lose its credence for consideration by High Court in its advisory jurisdiction if findings of fact arrived at by the Appellate Tribunal were not trustworthy

In case true facts were not ascertainable from available record; Appellate Tribunal was vested with vast powers under S. 132(1) of the Income Tax Ordinance, 2001 to call for any particulars relating to an appeal or cause further enquiry to be made by Commissioner during the appeal proceedings

Under S. 132(3)(c) of the income Tax Ordinance, 2001; Appellate Tribunal could remand a case to the Commissioner or Commissioner (Appeals) for making such an enquiry or taking an action as the Appellate Tribunal may direct

While dealing with matters relating to refund, particularly under the Sales Tax Act, 1990; Appellate Tribunal was required to keep a balance, to ensure issuance of refund to a registered person in accordance with law and protect against fraudulent claims based on fake and flying invoices

Tax which had not been deposited in the national exchequer should not be allowed to be refunded due to a lapse on part of the authorities under a statute and comprehensive mechanism was given in the Sales Tax Act, 1990 both for expeditious issuance of refund and for protecting the national exchequer from any loss

Appellate Tribunal and the tax authorities were required to keep in mind the principle embodied in S.8A of the Sales Tax Act, 1990 which enjoined joint and several liability on registered persons in the supply chain, if a registered person receiving taxable supply from another registered person had reasonable grounds to suspect that some or all of tax payable in respect of the supplies would go unpaid

Rationale behind more than one appellate forum in the taxation laws was to cross-check the exercise of powers by the authorities and ensure proper taxation under the statute.

Contention on behalf of Collector Customs (appellant) was that jurisdiction of Single Member of Appellate Tribunal to hear an appeal was Rs.100,000 at the relevant time, whereas the valuation of seized goods exceeded Rs.500,000, therefore, Appellate Tribunal was not competent to have passed the impugned order

Contention on behalf of vehicle owner (respondent) was that Single Member of Appellate Tribunal was competent to hear appeals where valuation of smuggled items did not exceed Rs.500,000, and that his appeal was found competent by the Appellate Tribunal as valuation of seized goods was Rs.361,000

Validity

At the time of appeal in question Single Member of Appellate Tribunal was authorized to hear matters involving amounts up to Rs. 100,000 but this was subsequently amended to Rs.500,000

Amendment could not be given retrospective effect and a jurisdictional defect could not be rectified on the same basis

Valuation of smuggled goods collectively exceeded Rs.500,000

Single Member of Appellate Tribunal did not have the jurisdiction to adjudicate upon the matter at the relevant time

Appellate Tribunal had set-aside the original order but the appellate order still occupied the field

Impugned order of Appellate Tribunal was set-aside and case was remanded to the Tribunal for decision in accordance with the law.

Where there was difference of opinion amongst the Members, the point had to be decided by the opinion of majority, if there was a majority; but if the members were equally divided, they were to state the point or points on which they differ and the case should be referred by the Chairperson of the Appellate Tribunal for hearing on such point or points by one or more of the other Members of the Tribunal, and such point or points should be decided according to the opinion of the majority of the Members, who had heard the case including those who first heard it will prevail

When an issue was raised and referred to Chairperson for making reference to a third member, the Chairperson will refer the said matter to a third member

Under said subsection, the third Member or Members had been conferred a limited power and they were competent to decide only the point or points referred to him and could not sit on a case of difference of opinion as appellate court and the referee Member will not be allowed to entertain fresh material or new point/issue/ argument which were not advanced earlier before the original Bench during the course of hearing of original appeal

After the decision: by the third Member on the point or points referred to him, the case should go back to the original Bench who heard it, since the, third Referee Member had not been given the jurisdiction to decide and dispose of the appeal as independent appellate court.

Commissioner Income Tax (Appeals), had deleted additions under S.80-D of (repealed) Income Tax Ordinance, 1979 on the gain on sale of land and it had been observed that S.80-D of (repealed) Income Tax Ordinance, 1979, had clearly stated that where no tax was payable by the company, then minimum tax payable would be 5% of the turnover of assessee

Since the tax payable by the assessee under S.80-CC of (repealed) Income Tax Ordinance, 1979 was lower than the tax worked out at 5% of the turnover of the assessee, tax under S.80-D of (repealed) Income Tax Ordinance, 1979 was charged in the original assessment under S.62 of (repealed) Income Tax Ordinance, 1979, but the Taxation Officer without any justification had rectified the order under S.221 of Income Tax Ordinance, 2001, despite the fact that for the assessment year 2002-2003 the assessee's contention in that regard had already been accepted by the Taxation Officer

Commissioner, Income Tax (Appeals), in circumstances had rightly held that tax under S.80-D of (repealed) Income Tax Ordinance, 1979 would be chargeable as had been charged in the original assessment under S.62 of said Ordinance

Appellate Tribunal had already held that the gain on the disposal of land was a capital gain not chargeable to tax

Tax under S.80-D of (repealed) Income Tax Ordinance, 1979 was chargeable on the turnover of the assessee and not on capital gains as it did not form a part of turnover

Commissioner Income Tax (Appeals) in circumstances had rightly deleted the tax, under S.80-D imposed on gain of sale of land.

Entitlement of a registered person to deduct input tax from output tax, was subject to the provisions of S.73 of Sales Tax Act, 1990, which had made it binding on the registered person that payment of the amount of transaction exceeding value of Rs.50,000 would be made by a crossed bank draft; or crossed pay order or any other crossed banking instrument in favour of the supplies from the business account of the buyer-Payments in the present case were made through travellers cheques, which were bearer in nature and did not qualify for Banking instruments referred to in S.73 of Sales Tax Act, 1990

Provisions of Ss.7 and 73 being mandatory in nature must be followed by a registered person

Mere non-mention of S.36 of the Sales Tax Act, 1990 in the show-cause notice, would not vitiate entire proceedings

Assessee having not actually made input tax adjustment, its sales tax liability was reduced

Additional tax and penalty of 3% imposed under S.33(2) of Sales Tax Act, 1990 was remitted.

Order giving directions to I. T. O. to grant certain relief to assessee after making some inquiry-Income-tax Officer not carrying out directions-Writ of mandamus-Whether will issue.