LEO ENTERPRISES vs PRESIDENT OF PAKISTAN and 2 others

ORDER

' KHAWAJA FAROOQ SAEED, J.---Through this writ petition the petitioner assails set aside of the order passed by respondent No.1 dated 30-7-2007 and consequent restoration of the order of the Federal Tax Ombudsman in Complaint No.1169-L of 2005.

2. The brief facts of the case are that the petitioner a registered person under the Sales Tax Act, 1990, received a show-cause notice dated 28-6-2003 from the respondent No.3 claiming recovery of an amount of Rs.43,66,807 as sales tax along with additional tax. The said act was subject to penal action under section 33(4) for contravention of sections 3, 3-B, 6, 7, 22, 23 and 26 read with sections 11, 33(4) and 36(1). The petitioner' ubmitted written reply to show cause on 14-7-2003 on which charges were framed. Order-in-Original No.153 of 2005 was later passed on, 15-9-2005 by the respondent No.3.

3. The petitioner challenged the order before the Federal Tax Ombudsman through a representation filed before him on 4-10-2005. Subsequent to filing of the said application Order-in- Original was also challenged through appeal. The Federal Tax Ombudsman announced its judgment on 6-11-2005 in favour of the petitioner which was allowed and direction was issued to the respondent department to cancel the said -order.

4. The respondents filed appeal against the said order before the President of Pakistan. The order of Federal Tax Ombudsman dated 6-11-2005 was reversed by holding as follows:-- "The department's contention that the complainants had also appealed the Order-in-Original remains uncontested. It has already been decided that where the complainant files appeal under relevant legislation the Ombudsman ought to have stopped the investigation of the complainant.

There are two reasons for the above decision. One, that the appeal Under the relevant legislation is judicial jurisdiction and the complaint under the FTO Ordinance is administrative jurisdiction. Where two remedies under two jurisdictions are available the remedy under judicial jurisdiction must get preference. It is deference to the judicial authority. Two, if it abuse of the process of law that the taxpayer makes a complaint to the FTO and also makes appeal before the appellate forum under the relevant legislation. Let the complainants pursue their remedy of appeal. Accordingly, the President has been pleased to set aside the FTO's recommendation dated 6-12-2005 in Complaint No.1169-L of 2005."

5. The said order is now being challenged inter alia on the following arguments:-- 6.

7. (i) that the petitioner was not made a part of the suit proceedings which is evident from the decision. The same hurts his right of defence which is against the most quoted principle of natural justice Audi alteram partem;

(ii) that the representation filed by the FTO was dated 4-10-2005 while the order in original was appealed against on 24-10-2005 which means 14 days after filing of the said petition. Since the reason mentioned in the order is that the petitioner had availed alternate remedy hence was not entitled to invoke the jurisdiction of FTO is misconceived in the sense that on the date of filing of the petition the said appeal had not been instituted;

(iii) that the factum that the 'complainant have failed to furnish comments on the representation' is a misquote. There was no question of filing any comments in the absence of any intimation to the petitioner in any form whatsoever. The order, therefore, is against the facts and circumstances of the actual case and in total oblivion of the law prevailing.

6. Regarding the actual controversy that the case having been assessed after the expiry of limitation, the provision of section 11(4) read with section 36(3) have been referred. In this case show-cause notice having been issued on 28-6-2003 the reply of which was filed on 14-7-2003 keeping the case pending for almost over 19 months is against the legal requirement. So far as the facts of the case is concerned, neither the same are controverted nor even otherwise there can. Be any dispute about that as the same stand further confirmed by the order in the case of FTO.

7. Under section 11(4) of the Sales Tax Act, the competent officer could decide a case within the 90 days from the date of issuance of a notice. Law provides for extension of the same through a formal order for another 90 days. Meaning thereby it has to be finalized within 180 days after obtaining extension from the higher competent authority by due mentioning reasons therein. The order in original having been passed after delay over 19 months is barred by time. Reliance in this case is on the two judgments of this Court Messrs Hanif Straw Board Factory through Proprietor v.

Additional Collector (Adjudication) Customs, Central Excise and Sales Tax Gujranwala and 2 others 2008 PTD 578 and Messrs Super Asia Muhammad Din Sons (Pvt.) Ltd. Through Chief Executive v.

Collector of Sales Tax, Gujranwala and another 2008 PTD 60.

8. The case of the respondent is that the writ petition in this case is not maintainable. There is a definite alternate remedy which the writ petitioner in fact had earlier invoked but subsequently withdrawn. He, therefore, is debarred from filing this writ petition.

9. Moreover, this Court in a number of cases has not allowed invocation of Writ jurisdiction and has refrained to substitute the order of the appellate authority by its own order. Reliance in this case is on Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744 and Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189.

10. In both these judgments by Honourable Supreme Court of Pakistan the findings are not in favour of the Revenue. The Honourable Court has held that the forum of Federal Ombudsman is also a judicial forum. His working, therefore, was subject to all the judicial norms and fulfillment of the legal practices.

11. Further recording of valid reasons while looking into the legality, vires or the application of law of an order of the Ombudsman by the President requires application of legal principles consistent with the principle of natural justice. For the obvious reasons while deciding an appeal against the order of Ombudsman application of judicious mind was also equally necessary.

12. Learned Legal Advisor may be justified in commenting that the right to file comments by virtue of judgment reported as Commissioner of Income Tax, Faisalabad Zone, Faisalabad and another v.

Akhlaq Cloth House, Faisalabad and another 2008 PTD 965 is a lawful substitute of the principle of natural justice. However, if the said substitute has not been extended and no comments have been called for at all from the affected party, it would obviously mean that he has not been allowed the said right. In this regard all principles in terms of service of notice etc. Definitely come into operation. In fact non-providing an opportunity of being heard has never been appreciated by the Courts anywhere in the world and obviously the authorities in Pakistan are no exception.

13. The Courts have even gone to hold that even if the law does not provide a hearing to a person before condemning him or deciding the matter in which he becomes an aggrieved party, this principle shall be considered to be as a part of law. Reliance is on Syed Allah Dost v. Haji Muhammad Alam and others PLD 1987 Quetta 235.

14. There is, therefore, no reason for this Court to agree with the learned Legal Advisor of the department that the writ petition cannot be invoked in the circumstances of this case. As already mentioned in fact the judgments he has referred are more in favour of the petitioner than the revenue. Even the judgment by this Court does not favour her claim on the facts of the case under discussion.

15. Even otherwise, the real controversy in this case is that whether an assessment order can be passed beyond limitation provided in law. Since the facts are no more under dispute while this Court has already in two judgments referred by the petitioner's counsel exercised its jurisdiction and have provided relief to the aggrieved parties, the present petitioner also is entitled to the same. The order in original was finalized after more than 19 months of the issuance of show-cause notice, the same was beyond' the limitation provided in law in terms of section 11(4).

16. The writ petition, therefore, stands allowed in the manner that the order in original being without jurisdiction having been finalized beyond the prescribed period under law is hereby cancelled.

17. Disposed of.