' SYED MUHAMMAD FAROOQ SHAH (JUDICIAL MEMBER).---The captioned appeal under section 46 of the Sales Tax Act, 1990 against the Order-in-Appeal No,59 of 2010, dated 16-11-2010 has been preferred by the department mainly on the grounds that the impugned order passed by the Commissioner (Appeals-III) in haste on the very first hearing and without giving hearing opportunity to the department and the appellate order passed without merits, ignores the relevant material evidences to such an extent that the facts of some other case have been applied erroneously which are complete irrelevant to the case in hand and therefore, the same is not tenable in law, particularly, the Adjudicating Officer has passed a speaking order, as the taxpayer has failed to justify input tax claim of two invoices issued by Messrs Pakistan State Oil Company Limited, Karachi, involving Sales Tax Rs,271,968, thus, the Adjudicating Officer was correct to disallow input tax adjustment against the said invoices.
2. Succinct facts narrated in the memo. Of appeal are that the respondent No,2/taxpayer has adjusted input tax which was inadmissible because no sales have been reported by their supplier during the tax period October, 2009 hence the taxpayer has been served with a show-cause notice in terms of sections 36(1) and 11(2) of the Sales Tax Act, 1990 and for default surcharge under section 34 and for penal action prescribed under Clauses (5) and (13) and section 34 ibid. On hearing the parties, the Adjudicating Officer by passing the order in original held responsible the taxpayer and against the order in original, an appeal has been preferred, impugned before this Tribunal.
3. I have heard Mr. S. M. Javed, the learned DR representing the department. The respondents and their representative are called absent without any intimation. I have perused the impugned order and the relevant law applicable in this case. The appellant/department has prayed for the following relief:-- "PRAYER In view of the facts, and grounds as narrated above, it is respectfully prayed on behalf of the appellant that this honourable Tribunal may be pleased to:--
(i) Declare the Order-in-Appeal No,59 of 2010 dated 16-11-2010 to be without lawful authority and thus of no legal effect;
(ii) Upheld the Order-in-Original No,13 of 2010 dated 2-8-2010 in its entirety;
(iii) Grant such other relief that may be deemed fit and appropriate in the circumstances.
4. Perusal of the record transpires that the learned CIR(A) Karachi at Hyderabad has erroneously applied the facts of another case to the present case which are completely irrelevant to the case in hand. In concluding part of his impugned order, the learned CIR(A) observed that the appellant has been deprived from his legal right of claiming input tax adjustment on merely a complaint, which has never been revealed to the appellant and no-where about of person complaining are known and incorporated in his order regarding its authenticity. Admittedly the instant case is not a case of lodging complaint by someone against the taxpayer. It further reveals that the written comments filed by the learned DR Mr. Bashir Same in some other case have been made applicable in this case. In concluding paras, the learned CIR(A) observed that:- "Further perusal of record it transpires that the contention of the learned counsel carries weight and the adjudicating authority cannot deprive a taxpayer from his legal and vested right of claiming input tax merely on baseless complaint, therefore, the impugned order passed by the adjudicating authority is set aside.
' This order shall apply mutatis mutandis in the appeal case No,89 dated 10-11-2010 filed by Messrs New Aijaz Engineering, SITE, Hyderabad and Appeal Case No,50 dated 30-8-2010 filed by Messrs Sind Land Development, Mirpur Khas.
' (SYED JALALUDDIN SHAH)
' COMMISSIONER INLAND REVENUE (APPEALS-III) KARACHI @ HYDERABAD"
5. In the well guaranteed fundamental rights, without any discrimination, distinguish and opportunities, it is the duty and obligation of the public functionaries to decide the matters of the citizens in accordance with law with sound reasons, on account of which legislature inserted section 24-A of the General Clauses Act, which excludes arbitrariness by recording reasons and to satisfy the party concerned against whom order is passed. Section 24-A of the General Clauses Act, 1897 reads that:- "24A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far' as necessary or appropriate, give reasons for making the order or, as the case may be for issuing the direction and shall provide a copy of the order or as the case may be, the direction to the person affected prejudicially."
6. In a Full Bench ruling of Hon'ble Supreme Court of Pakistan reported in 1998 SCM R 2268 it is held that:- "The doctrine has further been recognized and augmented by a recent insertion of section 24-A in the General Clauses Act, 1897, which declares that where a statute confers a power to make any order or to give any direction to any Authority, Office or person. Such would be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment. What is more, the order or direction, so far as necessary or appropriate would reflect reasons for its making or issuance and, where the same is lacking, an affectee may demand the necessary reasons, which, in response, would be furnished. [P. 2277]D"
7. Pacing reliance upon the aforementioned citation of Hon'ble Supreme court of Pakistan and keeping in mind the implication of section 24-A of General Clauses Act, I have no hesitation to observe that this is a case of misuse of exercise of powers under enactment. It appears that facts of some other case have wrongly been included in this case for making a base of wrong decision by learned CIR (Appeals), therefore, the impugned order passed hurriedly in a slipshod manner is against the principle of natural justice. For awareness and guidance of officer Inland Revenue the dictum as laid down in different citations referred by his lordships Ch. Ijaz Ahmed in a reported case i,e, PLD 2005 Lah:381 (Rel: .Page 385) is reproduced below:- It is admitted fact that public functionaries are receiving salaries from the Public Exchequer for the purpose to discharge their duties in terms of the law. The public functionaries failed to proceed and decide the cases of the citizens on account of which the Legislature is compelled by the aforesaid circumstances to add section 24-A of the General Clauses Act according to which it is duty and obligation of the public functionaries to decide the applications of the citizens in accordance with law with reasons within reasonable time as per law laid down by the Hon'ble Supreme Court in Messrs Airport Support Service v. The Airport Manager, Karachi (1998 SCMR 2268). It is also admitted fact that awareness has been given to the world 14 hundred years ago by Almighty Allah in the Holy Book of Quran in Surah Rehman warned the human beings not to disturb the balance in any sphere of life otherwise destruction is must as .Observed by the Court in Mrs. Anjum Irfan v. Lahore Development Authority and others (PLD 2002 Lahore 555). In case we have to live as a nation then everybody has to work within the framework of law. Lord Denning in Breen's case (1971) 1 All E.R. (1148) says, "The giving of reasons is one of fundamentals of good administration." It is also settled principle of law that State functionaries are expected to act fairly and justly in manner which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise as per law laid down by the honourable Supreme Court in Shaukat Ali and others v. Government of Pakistan and others (PLD 1997 SC 342). It is also settled principle of law that; "Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts as per law laid down by the honourable Supreme Court in Ch. Zahoor Elahi v. Federation of Pakistan and another (PLD 1975 SC 66)." Laws are made not to make them merely on the statute book which are framed to act upon them which is in consonance with the Holy Quran as enshrined in Sara Baqra. It not only the duty of the Court to provide justice to the people of Pakistan but it is also the duty of every organ and functionary to provide justice by discharging his/its duties in accordance with law without fear, favour and nepotism as per law laid down by the Court in judgment dated 23-2-2005 in ,Writ Petition No,27)8 of 2005 "
8. Whatever mentioned above, in light of the aforementioned citations of Hon'ble Superior Court I reached at the irresistible conclusion that by no stretch of imagination, the impugned order may be considered passed judiciously, consciously, fairly and justly and therefore, the same is not sustainable in law.
9. Resultantly, the instant appeal is allowed as prayed for.