' JUSTICE (RETD.) TANVIR BASHIR ANSARI, (CHAIRMAN).---Briefly the facts as disclosed in the appeal are that the appellant while appointing as Assistant Commissioner of Income Tax (A.C.I.T.) in BS-17 in Circle 27, Hafizabad, Gujranwala Zone was ordered to be suspended from service and was served with a charge-sheet along with statement of allegations on 3-12-2005. The charges pertained to the misconduct/irregularities attributed to the appellant in respect of as many as 32 assessees. The charges were in respect of the assessment for the payment of income tax in respect (1) TR-45212 Rehmat Yousaf (Washerman Contractor), (2) TR-45199 Muhammad Afzal (Barber Contractor), (3) TR-45201 Usmman Ali (Dhobi Contractor, (4) TR-45202 Muhammad Shafi (Barber Contractor), . (5) TR-45203 Muhammad Taj (Barber Contractor), (6) TR-45200 Pervaiz Akhtar (Barber Contractor), (7) TR-45075 Noor Elahi (Barber Contractor), (8) TR-44297 Muhammad Mansha (Dhobi Contractor), (9) TR-44298 Muhammad Zuhrab Khan (Dhobi Contractor), (10) TR- 44299 Rehmat Ali (Dhobi Contractor), (11) TR-44728 Abdul Basir (Barber Contractor), (12) TR-44748 Ghulam Shabbir (Barber Contractor), (13) TR-44751 Muhammad Mushtaq (Dhobi Contractor), (14)
TR-44065 Muhammad Hussain (Dhobi Contractor), (15) TR-44077 Muhammad Akram (Barber Contractor), (16) TR-44074 Noor Hussain (Dhobi Contractor), (17) TR44786 Shakoor Muhammad (Barber Contractor), (18) TR-44058 Haji Abdul Rashid (Dhobi Contractor), (19) TR-44061 Muhammad Daud Khan (Dhobi Contractor), (20) TR-45195 Muhammad Tufail (Dhobi Contractor),
(21) TR-45194 Arshad Mehmood (Dhobi Contractor), (22) TR-45192 Tariq Javed (Dhobi Contractor),
(23) TR-45191 Abdul Razzaq (Dhobi Contractor), (24) TR-45197 Muhammad Munir .(Dhobi Contractor), (25) TR-45196 Sher Afsar (Dhobi Contractor), (26) TR-45198 Muhammad Mumtaz (Barber Contractor), (27) TR-45211 Maqbool Ahmed (Barbar Contractor), (28) TR-45209 Muhammad Jamil (Dhobi Contractor), (29) TR-45208 Aqal Dad (Dhobi Contractor), (30) TR-45207 Javed Iqbal (Barber Contractor), (31) TR-4520C Liaquat Ali (Dhobi Contractor), and (32) TR-45213 Muhammad Javed (Dhobi Contractor).
' The allegations against the appellant were by and large of the same nature and can be summarized' as under:--
1. That the taxpayer did not exist at the N.T.N. The assessments framed were without proper jurisdiction as the taxpayer did not come within the territorial jurisdiction of Circle 27, Hafizabad.
2. That refund was created without proper verification; that intentional under assessments were made to create maximum amount of refund.
3. Refund was issued in invalid returns filed without national tax number; hasty assessment; in certain cases, to avoid approval of the Additional Commissioner the amount of refund was broken up into smaller fragments and in general ulterior motive and inefficient working was alleged against the appellant.
4. The appellant submitted his reply to the said allegations and controverted all the allegation in respect of each of the aforementioned assessee.
5. Mr. Muhammad Aqil Usman, Commissioner Income Tax Companies Zone, Islamabad was appointed as Enquiry Officer. The Enquiry Officer examined the assessment record of all the assessees besides recording the statement of Syed Asim Bokhari, Advocate Hafizabad, Mr. Shaukat Ali, Supervisor, Mr. Ghazanfar Ali, Inspector, Mr. Haq Nawaz Bhatti, Inspector, Mr. Muhammad Ashraf, U.D.C. And Mr. Muhammad Slaeem U.D.C. All of the erstwhile Circle 27 Hafizabad, Gujranwala Zone.
6. The appellant participated in the inquiry proceedings till 18-1-2006. On 23-1-2006 the appellant did not appear and communicated that his reply to the statement of allegations be taken as "whatever, I had to say regarding the inquiry and I have got nothing to add or modify my reply to the allegations levelled against me".
7. After the in-depth appreciation of the entire record, and evidence, Mr. Muhammad Aqil Usman, Commissioner Income Tax Companies Zone, Islamabad found the charges against the appellant to have been established. The principal charge against the appellant was that the taxpayers in question did not come within the territorial jurisdiction of Circle 27, Hafizabad. It was observed that the jurisdiction of Contractors was assigned to Circle-21, Hafizabad by the Commissioner of the Income Tax Gujranwala Zone, Gujranwala. It was fond that even if the returns were wrongly submitted by the assessees to Circle 27, the same should have been redirected to the appropriate Circle 21. It was further found that even prima facie addresses available of the assessees in their N.I.Cs. Were sufficient to disclose that the permanent addresses of the assessees belong to different areas such as Quetta, Sialkot, Chitral, Abbotabad, Haripur, Khushab and Attock etc. And could not fall within the territorial jurisdiction of the Gujranwala Zone. The Enquiry Officer was also of the opinion that the appellant, in league with other officials of Circle 27, Gujranwala Zone committed other culpable irregularities and caused intentional under-assessments to create maximum refunds. The Enquiry Officer concluded as under:-- "By providing ample opportunity to the accused to defend his case and after examining relevant records and conducting inquiries I have come to the conclusion that this is not a simple matter of under-assessm ent of income and issuance of refunds but is a fraud committed with criminal intent by preparing fake documents and returns, accepting the same as correct, issuing refund and getting them encashed, most probably without the knowledge of the persons to whom the tax deduction related."
8. The Enquiry Officer recommended that major penalty of removal from service be imposed upon the appellant.
9. Subsequently a show-cause notice dated 13-3-2006 was issued to the appellant wherein it was proposed to inflict one or more penalties including the major penalty of removal from service. The appellant submitted his reply to show-cause notice. Vide Notification dated 27-11-2006, the competent authority after giving an opportunity of personal hearing to the appellant proceeded to dismiss the appellant from In government service.
10. The appellant filed a departmental representation against the said major penalty. The departmental representation remained unactioned within stipulated period. The present appeal was filed on 7-3-2007.
11. The learned counsel for the appellant contends that the charges levelled against the appellant were vague and unspecific. It is further submitted that the appellant was not given any opportunity of cross-examining the witnesses who were produced during the course of the inquiry. It is further submitted that the appellant was not given an adequate opportunity of producing his defence. It is further urged that at the most allegations against the appellant can amount to bona fide error and in the absence of mens rea, the appellant could not be visited by the extreme punishment of dismissal from service. The learned counsel for the appellant contends that the show-cause notice was received on 13-3-2006 without any inquiry report which was supplied later on 3-4-2006. The inquiry proceedings have been further challenged on the ground that the statements of witnesses were not recorded on oath. The recording of the statement of the appellant before the statements of the prosecution witnesses was dubbed as a travesty of justice. It is lastly contended that although the Enquiry Officer had recommended the major penalty of removal from service, the competent authority enhanced the same without legal justification to dismissal from service which is not sustainable in law.
12. On the other hand Syed Shahid Hussain, Advocate for respondents contends that gross misconduct and irregularities were alleged against the appellant in matters concerning the assessm ent and recovery of government revenues. The appellant was found guilty of irregular exercise of jurisdiction resulting in loss to the government exchequer. Regarding the inquiry proceedings, it is submitted that the same were conducted by the Commissioner of Income Tax Companies Zone, Islamabad who conducted an indepth inquiry after giving full opportunity to the appellant to defend himself in accordance with law and principles of natural justice. It is further submitted that the case of the appellant was not prejudiced in any manner during or after the inquiry proceedings and that opportunity of being heard was given to the appellant at all relevant stages. According to the learned counsel, the penalty of dismissal from service was also commensurate with the offence.
13. We have heard both the learned counsel and have extensively perused the record.
14. The appellant was employed as Assistant Commissioner Income Tax in Circle 27, Hafizabad Gujranwala Zone. The assessm ents related to as many as 32 assessees. The allegations were mostly a matter pertaining to the examination of the relevant record. The charges which were identical in all the 32 cases related to the lack of jurisdiction of the A.C.I.T. In Circle 27, Hafizabad (Admn.) to carry out the assessm ents. The Enquiry Officer was satisfied on the basis of the record and evidence produced before him that the assessees did not work for gain within the jurisdiction of Circle 27, Hafizabad. Reference made to the permanent addresses of a large number of the disputed assessees showed that they belonged to areas not falling within the relevant jurisdiction.
15. It is further observed that the case of income tax returns/assessments in respect of contractors were assigned to Circle 21 and that there was no legal justification for dealing with these cases in the impugned circle. The Enquiry Officer further found all the charges to have been established against the appellant.
16. We have gone through the nature of the charges, the reply submitted by the appellant to each charge and the evidence brought before he Enquiry Officer both oral and documentary. We have also examined the findings of the Enquiry Officer upon each charge and do not find the conclusions to be either perverse or without sound basis.
17. The Enquiry Officer had recommended the penalty of removal from service in view of the charges and their proof. It is true that principles of natural justice have to be read as part and parcel of all judicial, quasi-judicial and administrative proceedings. Amongst the imiortant principles to be observed is the principle of an adequate of ortunity of hearing. In the instant case we are satisfied that the charges communicated to the appellant were specified and selfex lanatory and were given out in detail. The appellant was allowed or .Ortunity to submit his reply which was fully availed. After the reply, the Enquiry Officer conducted the inquiry in which the appellant was allowed full participation. After taking part in the inquiry up to the stage of recording his evidence and examining all the record before the Enquiry Officer, the appellant himself refused further participation and considered it sufficient to rely upon the defence that he had already submitted.
18. The report of the Enquiry Officer is a speaking document which explains his findings upon the strength of strong available material. The objections that the statement of the appellant was recorded first loses material significance in the light of the fact that the entire record which was available before the Inquiry Officer was examined by the appellant before making the voluntary statement before the Enquiry Officer. In order to appreciate the defence of the appellant, the Enquiry Officer further examined as many as five officials of the Circle 27, Hafizabad besides recording the evidence of Syed Asim Bokhari, Advocate. The Enquiry Officer came to the conclusion in respect of the charge after objectively examining the material on the record. We are unable to discover any malice or ulterior motive in the proceedings of the Enquiry Officer. We are also of the view that the appellant has not been prejudiced in any manner in producing his defence in the matter in which he would have liked to. At least the learned counsel for the appellant has not been able to demonstrate any such lacuna which could have prejudiced the appellant in his defence.
We are also not impressed by the objection that the statements of some witnesses were not recorded on oath. As already observed, the allegations against the appellant were of the nature which were liable to be decided one way or the other upon the examination of the record alone. We have also noticed that the appellant has not challenged the veracity of the record produced before the Enquiry Officer. We are thus inclined to uphold the report of the Enquiry Officer.
19. We are nevertheless conscious of the fact that the Enquiry Officer after concluding the inquiry recommended the major penalty of removal from service. The show-cause notice which followed also proposed the imposition of major penalty of removal from service. It was thus not in accordance with the norms of justice for the competent authority to have unilaterally enhanced the punishment to that of dismissal from service. This is more so as no show-cause notice in respect of enhancement of punishment was given to the appellant.
20. In view of the above while upholding the findings of the Enquiry Officer we dismiss the appeal so however that the major penalty of dismissal from service is converted into removal from service as was recommended by the Enquiry Officer.
21. No order as to costs.
22. Parties be informed.