DECISION /FINDINGS Facts of the complaint are that the Additional Collector of Sales Tax by his Order-In-Original No.107 of 2000, dated 29-1-2000 had vacated show-cause notice, dated 1-11-1999 issued to the complainant. The Collector of Sales Tax re-opened the aforesaid 04-0 vide his order, dated 1-7- 2002. The complainant challenged Collector's decision to re A open the case before the Honourable FTO in complaint No.984-L of 2002 and the FTO, vide decision, dated 28-11-2002, accepted the complaint with certain directions. As a consequence, the Collector issued a corrigendum show-cause notice, dated 24-7-2003 without providing to the complainant copy of alleged audit report/record despite a mention of the same in para-4(c) of the show-cause notice.
While submitting its interim reply to the notice, the complainant requested for a copy of the alleged audit report to be able to prepare and file a proper/ comprehensive reply but the Collector, upon receipt of interim reply, fixed the case for hearing without supplying the documents asked for. He, however, adjourned the case to another date directing the departmental representative to supply copy of the audit report/record to the complainant. The complainant contacted the departmental representative for obtaining the requisite documents, which were not supplied. It had been asking the Collector to direct the departmental representative to supply the requisite documents but to no avail. The supply of record/documents to the complainant was necessary for preparation of reply to the show-cause notice based on the alleged audit report/record. Non-supply of record is illegal, arbitrary and mala fide. Respondents may be directed to supply the same to enable the complainant to prepare and file a detailed reply to the show-cause notice. If the respondents are not willing to do that they may be directed to vacate the corrigendum show-cause notice.
2. In reply the respondents, have submitted that during the proceedings the complainant had requested for supply of record on the basis of which 04-0 was reopened. It was supplied but the complainant again demanded it. It was again supplied on 1-6-2004 to complainant's AR vide C.
No.8/98/Adj/ST/8418. A copy of the 'statement' was provided with the corrigendum show-cause notice on the basis of which 04-0 No.107 of 2000, dated 29-1-2000 was reopened. Another copy of the same was again provided to the AR of the complainant vide letter, dated 1-6-2004. It is pleaded that the complaint may be rejected as being without merit.
3. During the hearing, the AR reiterated that in corrigendum show-cause notice, dated 24-7-2003 the respondents were relying on an audit report given by senior auditor. He had merely asked for a copy of the auditor's report/record to prepare reply to the show-cause notice on behalf of his client which was being arbitrarily denied. The refusal to supply the documents amounted to an act of maladministration.
4. The DR submitted that para. 4(c) of the show-cause notice referred to a 'statement' dated, 6-2- 1997 given by Mr. Abdul Ghafoor, the manager of the complainant. A copy of the aforesaid statement was provided to the AR a number of times and could be provided again. In the aforesaid statement the manager of the unit had admitted that during the period from 16-10-1996 to 31-1- 1997 the complainant had supplied cotton seed of the value of Rs.15,939,079 inclusive of sales tax amounting to Rs.2,431,338. He added that both the 04-0 which is being reopened and the corrigendum show cause notice indicated the same quantity and value of cotton seed, the same amount of sales tax, with no change whatsoever. When asked to produce the contravention report mentioned both in the 04-0 and the corrigendum show-cause notice he could not produce any.
The AR challenged the so-called 'statement' dated 6-2-1997 allegedly given by the complainant's manager on the ground that the statement did not bear anybody's name nor did it carry any stamp of the complainant nor was it given on oath for that matter. He also added that one part of the statement (part-A) was signed by someone whereas the other part (Part-B) was unsigned. The so-called signature on the statement was not of Abdul Ghafoor, the manager. If the statement is claimed by the respondents to be that of the manager then why did they not obtain full signature of the manager under a stamp showing his designation? He further emphasized that if according to the para. 4(c) of the corrigendum show-cause notice the senior auditor had checked the records then he must have also prepared and issued his report which is what was required by the complainant for preparation of its reply to the show-cause notice. The AR pointed out that the corrigendum show-cause notice made mention of both the auditor's report and a contravention report stating that he would be satisfied even if the respondents supplied him a certified copy of contravention report, prepared and submitted by the auditor for adjudication.
5. The arguments of the parties and the record of the case have been considered and examined. It is observed that the original show-cause notice on the basis of which the 04-0 was passed--- subsequently set aside and re-opened by the Collector---shows that the case against the complainant was instituted on the basis of contravention report submitted by the Auditor Sales Tax. The corrigendum show-cause notice, dated 24-7-2003 also refers vide para. 4(c) thereof to checking of complainant's record by the senior auditor on 6-2-1997. Similarly para. 5 of the aforesaid show-cause notice goes on to state that the auditor Sales Tax had made out a contravention case against the said unit for violations. This means that the case against the complainant was instituted on the basis of auditor's report/contravention report. All that the complainant wanted was a copy of audit report/contravention report. While the respondents might have supplied a copy of manager's so-called statement they did not supply the complainant the copy of the audit report/contravention report thus denying its access to the relevant documents and rendering it unable to prepare its reply to the show-cause notice. The complainant's AR, therefore, had the legitimate right to obtain these documents. The refusal to supply the same was arbitrary and unjust in that it constituted an attempt to deprive the complainant of the right to prepare and file a proper reply to the show-cause notice. This denial, therefore, is tantamount to maladministration within the meaning of section 2(3) of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000. However, the AR agreed that he would be satisfied if the respondent supplied him a copy of the contravention report prepared and submitted by the auditor for adjudication. At this stage the DR stated that respondents would supply a copy of the contravention report to the AR. In view of the foregoing position, it is recommended that the C.B.R.
Direct the competent authority to:
(i) Supply a copy of the contravention report prepared by the Auditor to the complainant's AR to enable him to prepare his reply to the show-cause notice, dated 24-7-2003 issued by the Collector.
Compliance be reported within 30 day.