Versus Khubaib Ahmad , Mian Khadim Hussain
ORDER
1. Through this appeal the taxpayer has assailed the order of learned Collector of Sales Tax (Appeals) recorded on 29-8-2008 whereby he has confirmed the order-in-original on the issue of abnormal tax profile and modified the same with certain directions on the issue of non-filer.
2. Facts of the case in brief are that the refund claimed by the taxpayer for the period June 2007 was found liable to be rejected on account of certain discrepancies noted in the Order-in-Original No.87/2008 dated 17-1-2008. The taxpayer was, therefore, charged on account of violation of sections 2(14), 7, 8(1), 10 and 26 of Sales Tax Act, 1990 read with Sales Tax Rules 2006 and was called upon to show cause as to why the refund claimed may not be rejected and penal action may not be taken against him. The reply furnished by the taxpayer was found unsatisfactory and the adjudication proceedings were culminated by passing order in original dated 17-1-2008. Being aggrieved, the taxpayer filed appeal on various grounds but the Collector (Appeals) had dismissed the appeal on the issue pertaining to abnormal tax profile of supplier units Messrs Adrian Traders and Messrs Star Traders whereas modified the order in original on the issue on non-filer with the following observations:--
3. "After due consideration, I find the plea of the appellants is correct, regarding the issue of Hotel not admissible. However, the refund on this issue is held admissible if the appellants produce attested/verified documents as laid down in Standing Order No.3/2006, in the concerned refund section of respondent department within 15 days of the receipt of this order otherwise appeal stands rejected".
4. Being dissatisfied with this treatment the taxpayer filed appeal contending that the show-cause notice, adjudication order as well as the appellate order are illegal and void ab initio. It is, therefore, prayed that the respondent may kindly be ordered to issue the refund.
5. The A.R. contended that the Collector (Appeals) has rejected the refund on account of non-filer merely for want of attestation/verification of documents within 15 days which was against the norms of justice. The taxpayer has provided all the documents at the time of hearing but he passed order without considering the same. It was further contended that the appellant had claimed refund against invoices duly incorporated in suppliers' sales register and monthly Sales Tax returns, hence its rejection was not only against the provisions of section 10 of the Act but also without any lawful authority. He also pleaded that the appeal of the assessee was heard on 2-4-2008 but the impugned order was passed after inordinate delay of almost five months, therefore, the impugned order is not a valid judgment in the eyes of law. Reliance in this regard was placed on case law reported as PLD 1952 Baghdad-ul-Jadid 38 and PLD 1960 Azad J&K 11. In the first judgment it has been held that judgment delivered after five months of hearing is tantamount to delivering judgment without hearing the parties and the case is remanded back for fresh judgment. In the second case the judgment delivered after four and half months after hearing parties was held as not legally passed. The learned A.R. stressed that the order passed by Collector (Appeals) in the taxpayer's case was after five months of hearing is a void ab initio order and has no legal sanctity. The D.R. on the other hand, supported the orders of the authorities below for the reasons stated therein. According to him, the refund had been rejected on the valid grounds and no further relief is due to the taxpayer.
6. We have heard the parties and have also gone through the orders of the authorities below. The contentions put forth at the Bar and the judgments relied upon by the A.R. of the taxpayer have also been considered. The contention of the taxpayer's A.R that the impugned order has been passed after five months of the hearing of arguments is substantiated from the date of dispatch recorded as 29-8-2008 with Diary No.12266. The ratio settled in the judgments cited supra, therefore, is attracted in the instant case. In such circumstances, we deem it appropriate to vacate the impugned order and remand the case back to Collector (Appeals) for fresh judgment after hearing the parties.
7. C.M.A./831/Tax (Trib.) Case remanded.