OMER ATAULLAH KHAN Versus COMMISSIONER (APPEALS) PRA, LAHORE Attaullah Khan and Asmar Tariq , Muhammad Afzal
ORDER
This appeal under section 66 of PSTSA, 2012 (hereinafter called The Act) was filed against order dated 27.03.2019 passed by respondent No. 01 (Commissioner Appeals) PRA, Lahore.
2. Briefly, the facts involved in this Appeal are that on 09.11.2018 the enforcement officer (Enforcement IV, Unit-13) issued the show-cause notice for "REGISTRATION/E-ENROLLMENT WITH PRA UNDER SECTION 25 READ WITH PARAGRAPH (D) OF SUBSECTION (1) OF SECTION 41 OF THE PUNJAB SALES TAX ON SERVICES ACT, 2012. By way of the said notice, the appellant was treated as property developers, builders and promoters, hence was required to deposit sales tax and to file monthly tax returns for which they were also requested to get registered/enrolled under section 25 of The Act within 7 days. The appellant challenged the issuance of this notice, before Hon'ble Lahore High Court Lahore by way of filing Writ Petition No.249683/2018, titled "Omer Attaullah Khan v. Province of Punjab and others." The said writ petition was disposed off, in the following manner.
"Through this petition notice dated 09.11.2018 issued by respondent No. 3 is assailed. Learned counsel for the petitioner submits that no entity in the name of 'Library Forum' is available. The building in question is owned by the petitioner who is not providing any services, therefore, he is not required to be registered under the Punjab Sales Tax on Services Act, 2012 ("Act of 2012").
2. learned AAG, on Court's call, has no objection if respondent No. 3 is directed to attend petitioner's above noted objection and any other legal objection before proceeding further in pursuance of impugned notice and decide the matter in accordance with law".
Thereafter, the authority issued notice dated 16.01.2019, to the appellant after granting him three opportunities of being heard. (The appellant neither appeared before the authority nor provided any document. The appellant only filed a written reply on 06.12.2018). Through the said notice the authority, after discussing the factual and legal objections of the appellant, intimated him that since he falls in the category of taxable service provider therefore is liable to be registered under section 27 of The Act. The authority asked the appellant to appear and file written defense by 04.02.2018, without fail. It was also informed to him that if he fails, he will be registered compulsorily under section 27 of The Act. In response to that notice, the appellant, through Attaullah Khan Advocate, appeared before the authority on 04.02.2019 however, no document was submitted. After hearing the said Advocate on behalf of the appellant, the Enforcement Officer Unit 13 passed the order dated 04.02.2019 whereby the appellant was found liable to be registered compulsorily under section 25 of The Act. In the said order other legal and factual objections were also attended to and discussed by the above stated officer.
Feeling aggrieved of the said order, the appellant filed and appeal before respondent No. 01 (Commissioner Appeals) PRA Lahore. The said appeal was dismissed, solely on the ground that the order impugned was not appealable. Being dis-satisfied with the order dated 27.03.2019, of respondent No 01 (Commissioner Appeals) PRA Lahore, this appeal is preferred.
3. It is pertinent to mention here that learned counsel for the appellant argued his case only on the point, whether or not the order passed by the Enforcement Officer (Enf-IV, Unit 03), of compulsory registration of the appellant under section 27 of the PSTSA, 2012, is appealable before the Commissioner. Although, in the memorandum of appeal there are other legal and factual grounds but learned counsel for the appellant has not touched any of those grounds except the ground mentioned above therefore this tribunal is justified to presume that the appellant has abandoned all grounds taken in the memorandum of appeal except the one grounds stated above.
4. Learned counsel has argued that every order passed under section 27 of The Act is appealable under section 60(1)(d);- That under section 63 of The Act "any decision or order passed under section 60" is appealable before the Commissioner;- That the remedy provided under section 29, for de-registration does not cater the grievance of the appellant because sections 27 and 29 of The Act and Rule 5 in Chapter-III of the PSTSA (Registration and De-registration) Rules, 2012 are for the persons who had the status of taxable service providers but later on the said status was changed due to change of business or due to the change in the nature of business;- That since the appellant does not accept the stance of The Authority that the appellant is a taxable service provider therefore, the said provisions of The Act do not apply in this case rather appeal under section 63 of The Act was rightly filed by the appellant before the Commissioner but it was dismissed under a wrong notion of law that the Commissioner (Appeals) PRA Lahore has misunderstood and misinterpreted the law on the subject and therefore, has passed an illegal order which requires to be set-aside. Lastly learned counsel has argued that the appeal in hand may kindly be accepted. Learned counsel has relied upon a case law decided by the appellate tribunal SRB through Appeal No. AT-113/2018, titled, "Assistant Commissioner, SRB, Karachi v. Messrs Mohsin Mehmood (Manzoor Ahmad").
5. On the other hand learned DR has opposed the contention of the counsel for the appellant by arguing that since no order under section 60 of The Act was passed by the Enforcement officer therefore, the Commissioner (Appeals) has rightly held that the appeal filed before him had no sanctity of law;- That sub-clause (2) of section 29 of The Act and Rule 13 in Chapter-IV of (Registration and De-registration) Rules, 2012, deals with the situation in the present case Learned DR has relied upon case titled Messrs Expo Lahore (Pvt.) Ltd. v. Commissioner (Appeals) PRA Lahore decided by this tribunal through Order No.34/2016 dated 31.05.2016 on the similar issue. Lastly it is argued that appeal in hand may kindly be dismissed.
6. Arguments heard. Record perused.
7. If section 60(1) is read carefully it becomes clear that the said section provides the hierarchy of the officers of The Authority, having different pecuniary jurisdictions to decide the matter's involving "determination of tax liability, assessment of the tax, charging of default surcharge, imposition of penalty and recovery of amount erroneously refunded or any other contravention or violation including tax fraud under this Act or the Rules". All the above mentioned, matters relate to the assessment of tax, directly or indirectly "Any other Contravention or Violation" mentioned in this section should be read and understood in the same sequence as it also relates to the matters involving the determination of tax assessment or any other financial liability or claim of the taxpayer.
The order dated 04.02.2019 does not deal with any question relating to the tax assessment and does not impose any type of financial penalty upon the appellant. The said order in nutshell, deals with the question of registration of the appellant on the ground of its being taxable service provider.
The case of the appellant is that he has no status of taxable service provider therefore, was not required to be registered compulsorily under section 27 of The Act. Be that as it may, the grievance of the appellant can easily be redressed under subsection (2) of section 29, of The Act and under Rule 13 of (Registration and De-registration), Rules, 2012. For convenience both the said provisions are reproduced here-under;-
Subsection (2) of Section 29
"Where any person registered under this Act believes that he does not satisfy the requirements for registration specified in section 25, he may make an application to the Authority to be de-registered."
Rule 13 in Chapter IV of (Registration and De-Registration) Rules, 2012
"Where a person has been compulsorily registered and it is subsequently proved that such person is not liable to registration for the purposes of The Act, the Authority may cancel such registration ab initio and a person whose such registration is cancelled shall not be subjected to any tax liability for the period of his such compulsory registration".
If the appellant satisfies the authority by producing the evidence, if any, that the appellant does not qualify to be treated as taxable service provider. The Authority is bound under the law i.e., Rule 13 supra, to De-register the appellant or otherwise.
8. Moreover, the same kind of question/proposition was dealt with by this tribunal in the case law relied upon by the learned DR titled as Messrs Expo Lahore (Pvt.) Ltd. v. Commissioner (Appeals) PRA Lahore and it was categorically held in that case that an order passed without determination of tax liability and assessment of tax, was not appealable before the Commissioner (Appeals) PRA Lahore.
9. The judgment relied upon by the learned counsel for the appellant deals with some other question/proposition and not the proposition in hand therefore, is not applicable in this case.
10. The question that why the appellant was compulsorily registered, is answered in the order dated 04.02.2019. The said conclusion/answer is based on reasoning, gathered from the appellant's own contention. In the memorandum of appeal before this tribunal and in para 4(i) of the petition filed by the appellant before the Hon'ble Lahore High Court, the appellant stated that he is constructing "A Commercial Building", in the name and style of LIBERTY FORUM. The order dated 04.02.2019 contains the detailed regarding the establishment of Booking Offices at Gulberg, DHA Lahore and in UAE. It further contains the payment plans and brochures available at <http://saibanproperties.com/LibertyForum.html> .
11. In light of the discussion made above, this tribunal finds no illegality in the impugned order dated 27.03.2019 whereby it was rightly held by the Commissioner (Appeals) PRA Lahore that the order dated 04.02.2019 was not passed under section 60 of The Act therefore, was not appealable. This appeal has no merits hence, dismissed.
The Registrar of the Tribunal is directed to communicate this order to all concerned immediately. File of appealable consigned to record room.
SA/72/Tax (Trib) Appeal dismissed.