2010 PTD 2157

Citation2010 PTD 2157

CourtINLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN

ORDER

1. SHAHID JAMIL KHAN (JUDICIAL MEMBER).--- This is departmental appeal against Order-in-Appeal dated 26-4-2008 whereby appeal of the Registered Person was accepted on the ground that the reason for rejection of refund given in Order-in-Original was not confronted in the show-cause notice.

2. The DR while speaking in support of the appeal could not deny the fact that the reason of rejecting refund was not confronted in the show-cause notice dated 6-4-2007. However, he has referred to the observation of the Adjudicating Authority that the Registered Person could have claimed the refund by filing a supplementary claim with the supporting documents. He contends that this aspect of the case was not pondered upon by the learned Collector (Appeals). The learned counsel for the respondent registered person referred to the judgment of the honourable Apex Court reported as 1987 SCMR 1840 whereby the honourable Court has laid down a dictum that Order-in-Original passed on a ground which was not mentioned in the show-cause notice is illegal and void, relevant excerpt from the judgment is reproduced for facility;

2. "... we are of the opinion that it is not necessary to determine this question of law in the facts of the present case as this petition can be disposed off on the short ground that the order of adjudication being ultimately based on a ground which was not mentioned in the show-cause notice, the order was palpably illegal and void on the face of it. We have carefully examined the show-cause notice and find no reference whatsoever or necessary facts relating to the ground that the alleged contraband goods were impeded into Pakistan from an unauthorized route. In view of this palpable legal infirmity we do not consider it necessary to examine the other contentions raised by the teamed counsel..."

3. Facts of this case are squarely covered by the judgment of Apex Court, therefore, rejection of refund through order-in-original, dated 9-7-2007 is held illegal and void. Appeal filed by the department is dismissed.

4. H.B.T./141/Tax/(Trib.) Appeal dismissed.