' JAWAID MASOOD TAHIR BHATTI, (CHAIRPERSON).---This appeal is filed by the Department against the impugned Order-in-Appeal No, 85 of 2012 dated 20-6-2012 passed by the learned Commissioner Inland Revenue, (Appeals-I), Islamabad. The learned CIR(A) while adjudicating the respondent's appeal against Order-in-Original No, 15/113 for the period from July 1, 2009 to June 30, 2010 passed by Deputy Commissioner Inland Revenue, Audit-V, Large Taxpayers Unit, Islamabad has remanded back the case to DCIR for fresh examination. Being aggrieved from the Order of the learned CIR(A-I), the department has filed this instant appeal. It was contended in grounds of appeal that "learned Commissioner Inland Revenue (Appeals-I) has erred to remand the case to the adjudication authority as under subsection (3) of section 45B of the Sales Tax Act, 1990, the CIR(A) cannot remand back the case".
2. The respondent is engaged in the business of operating an airline under license from Civil Aviation Authority of Pakistan and render services in respect of travel by air to passengers and cargo within Pakistan and abroad. The services render by appellant is subject to levy of Federal Excise Duty under Entry Nos. 3 and 4 of Table-II of First Schedule to Federal Excise Act, 2005.
3. The perusal of record reveals that respondent has pleaded that reasonable/adequate opportunity was not provided to explain point of view to the adjudicating officer. It was held by the first appellate authority that the facts need re-consideration of record and invoices should be verified from the respective suppliers. So far as suppression of sales is concerned this matter also require through examination with reference to output tax discrepancies on part of tax authorities as no independent verification/confirmation of output and input invoices was made by the department. In order to resolve the factual controversy the learned CIR(A) remanded back case DCIR to record definite findings after examining the record afresh. The appeal was disposed of with the direction to settle the issues of inadmissible input tax and suppression of output tax in accordance with law after verification.
4. Mr. Imran Shah, ACMA learned Departmental Representative of the appellant has contended that it was mandatory for the learned CIR(A) not to remand the case for de novo consideration because specific bar postulated in section 45B(3), therefore, the order passed by first appellate authority is patently illegal and unsustainable. He prayed that either impugned Order-in-Appeal No, 85 of 2012 dated 26-6-2012 may be annulled or Order of the DCIR be restored or CIR (A) may be asked to decide the case on merit.
5. On the other hand learned AR of the respondent has contended that since it a matter of settling of controversy and let the department should give clear findings on the matter because the department has not touched the factual grounds of case. He submitted that DCIR has only discussed two case-laws and decided the case without appreciating their respective application on the appellant. While pointing out the flagrant flaws, it was contended by the learned AR, that the DCIR was bound to adjudicate every single ground agitated before him which he has not done. He argued that the decision of the learned CIR(A) is fully justified as he has passed the Order as per law keeping in view the authority given in the statute where it is mentioned that he can pass order "as he thinks under section 45B(2) of the Sales Tax Act, 1990. He argued that section 45B(3) of the Sales Tax Act, 1990 contain a different set of circumstances and deals with the situation where the CIR(A) undertakes inquiries, then in that case, he cannot remand back the case. In the instant case no inquiry was initiated on part of the learned CIR(A), therefore, the remand back was justified. In the light of above arguments, he supported the order of remand back.
6. We have heard the learned representatives from both sides, perused the impugned order in appeal, the order in original and have also examined the record and considered rival arguments.
' We have observed that section 45B of the Sales Tax Act, 1990 or section 33 of the Federal Excise Act, 2005 deals with the Appeals to first appellate authority (i,e,, Commissioner Inland Revenue (Appeals) [CIR(A)] and used more or less analogous language in both statutes as far as mode of disposal of appeal is concerned. The provisions relating to first appeal are tabulated as under:-- Section 45-B of Sales Tax Act, 1990 Section 33 of Federal Excise Act, 2005 Appeals.---(1) Any person, other than the Sales Tax Department, aggrieved by any decision or order passed under sections 10, 11, 25, 36, or 66, by an officer of Inland Revenue may, within thirty days of the date of receipt of such decision or order, prefer appeal to the Commissioner Inland Revenue (Appeals): Provided that an appeal preferred after the expiry of thirty days may be admitted by the Commissioner Inland Revenue (Appeals) if he is satisfied that the appellant has sufficient cause for not preferring the appeal within the specified period: Appeals to Commissioner (Appeals).---
(1) Any person other than Federal Excise officer aggrieved by any decision or order passed under this Act or the rules made there under by a officer up to the rank of Additional Commissioner Inland Revenue other than a decision or order or notice given or action taken for recovery of the arrears of duty under this Act or rules made there under may within thirty days of receipt of such decision or order prefer appeal there from to the Commissioner (Appeals).
(2) The Commissioner (Appeals) may, after giving both parties to the appeal an opportunity of being heard, pass such order as he thinks fit, confirming , varying, Provided further that the appeal shall be accompanied by a fee of one thousand rupees to be paid in such manner as the Board may prescribe.
(2) The Commissioner Inlandaltering, setting aside or annulling the decision or order appealed against: Revenue (Appeals) may, after giving both parties to the appeal an opportunity of being heard, pass such order as he thinks fit, confirming, varying, altering, setting aside or annulling the decision or order appealed against: Provided that such order shall be passed not later than one hundred and twenty days from the date of filing of appeal or within such extended period as the Commissioner (Appeals) may, for reasons to be recorded in writing fix: Provided further that such extended period shall, in no case, exceed (sixty) days: Provided further that any period during which the proceedings are adjourned on account of a stay order or Alternative Dispute Resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days shall be excluded from the computation of aforesaid periods".
(3) In deciding an appeal, the Commissioner of Inland Revenue (Appeals) may make such further inquiry as may be necessary provided that he shall not remand the case for de novo consideration.
(4) (***) omitted.Provided that such order shall be passed not later than [one hundred and twenty] days from the date of filing of appeal or within such extended period, not exceeding sixty days, as the Commissioner (Appeals) may, for reasons to be recorded in writing, extend.
Provided further that any period during which the proceeding are adjourned on account of stay order or Alternative Dispute Resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days shall be excluded for the computation of these period.
(3) In deciding an appeal, the Commissioner (Appeals) may make such further inquiry as may be necessary provided that he shall not remand the case for de novo consideration.
7. At this stage we have considered the judicial meanings of the word "as he thinks fit" decided by the Courts in various judgments of the Indian Jurisdiction.
Revenue (Appeals) may, after giving both parties to the appeal an opportunity of being heard, pass such order as he thinks fit, confirming, varying, altering, setting aside or annulling the decision or order' appealed against: Provided that such order shall be passed not later than one hundred and twenty days from the date of filing of appeal or within such Extended period as the Commissioner (Appeals) may, for reasons to be recorded in writing fix: Provided further that such extended period shall, in no case, exceed (sixty) days: Provided further that any period during which the proceedings are adjourned on account of a stay order or Alternative Dispute Resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days shall be excluded from the computation of aforesaid periods".
(3) In deciding an appeal, the Commissioner of Inland Revenue (Appeals) may make such further inquiry as may be necessary provided that he shall, not remand the case for de novo consideration. Against: ' Provided that such order shall be passed not later than [one hundred and twenty] days from the date of filing of appeal or within such extended period, not exceeding sixty days, as the Commissioner (Appeals) may, for reasons to be recorded in writing, extend. Provided further that any period during which the proceeding are adjourned on account of stay order or Alternative Dispute Resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days shall be excluded for the computation of these period.
(3) In deciding an appeal, the Commissioner (Appeals) may make such further inquiry as may be necessary provided that he shall not remand the case for de novo consideration.
' In Commissioner of Income Tax v. Walchand & Co., AIR 1967 SC 1435, p. 1437 = (1967) 65 ITR 381 (SC), p. 384, it has been held by the Supreme Court of India that.... "The expression "pass such orders thereon as it thinks fit" does not give any arbitrary jurisdiction of the tribunal to deal with and determine questions which arise out of the subject matter of the appeal in the light of evidence and consistent with the justice of the case."
' In a case reported as Babulal Nagar v. Shree Synthetics Lt., AIR 1984 SC 1164, 1165, the .Supreme Court of India has held that "Section.... Confers a very wide jurisdiction on the Court to pass any order 'as it thinks fit', context otherwise indicates, 'as it deems fit. And the latter expression means to make an order in terms of the statute, an order which would give effect to a right which the Act has elsewhere conferred The expression "as it thinks fit" confers a very wide jurisdiction enabling it to take an entirely different view on the same set of facts and he as the same connotation, unless context otherwise indicates, 'as he deems fit' which means to made an order in terms of the statute, which would give effect to a right which the Act has elsewhere conferred.
' In Narendra Sing v. Chhotey Singh AIR 1983 SC 990, 994, the Supreme Court of India has held that "The expression confers a jurisdiction of widest amplitude on the quasi-judicial tribunal. But that does not mean that such tribunal can pass any order in total disregard of the statutory provisions under which the quasi-judicial tribunal is created and; is conferred jurisdiction to resolve disputes arising in the implementation of the statute."
' In a sales tax case reported as Central Camera Co., (Pvt.) Limited v. Government of Madras, reported as (1971) 27 S.T.C. 112 (Mad.) at pp. 115-16, their lordships of Madras High Court has held that "There was no issue before the Appellate Tribunal as regards the turnover because by then the assessee gave up his rights to agitate about the propriety of the inclusion of such a turnover. He cannot, therefore, complain against the treatment given to the subject matter in the case by the Appellate Tribunal where such a treatment was the result of his own conduct. Their Lordships were, therefore, unable to agree with the contention that the parenthesis "as it may think fit" in section 36(3)(a)(iii) of the Madras General Sales Tax Act, 1959, would also include a case of the kind where there was no issue. The phrase must be understood ejusdem generis and the Tribunal could pass only such further orders as would be necessary and which touch upon the matters in issue in the appeal before them. They cannot traverse beyond it."
' In another tax case, the Supreme Court of India in case titled as CIT v. Assam Travels Shipping Service reported at 1993 PTD 885 = (1993) 199 ITR 1 (SC), has defined these phrase in the following words "The expression 'as he thinks fit' is wide enough to include the power of remand to the authority competent to make the requisite order in accordance with law in such a case even though the Tribunal itself could not have made the order enhancing the amount of penalty".
8. After considering the above decisions of the Indian Supreme Court adjudicating the connotation "as he think fit" we have noted that it is common knowledge that an appeal is- creature of statute.
Commissioner Inland Revenue (Appeals) hears appeal under a jurisdiction specially created by the provision of a statute, either Sales Tax Act, 1990 or Federal Excise Act, 2005, then it has to act under it. The respondent has placed considerable reliance on the phrase "as he think fit" and it is argued that in the circumstances of the case, when the A learned Commissioner Inland Revenue (Appeals) has prompted to remit the proceedings for reconsideration on the ground of lack of opportunity and absence of independent verification/confirmation of output and input invoices on part of department. Thus, he has reached to a conclusion which as he though fit under the facts and circumstances as phrase "think fit" gives enough powers, as is evident from the cases referred supra, for remanding back the case for de novo consideration to original adjudicating authority.
' It is further clarified that subsection (3) of section 45B has created an exception out of subsection
(2) and deal with different set of situation. This subsection state that "in deciding an appeal, the Commissioner Inland Revenue (Appeals) may make such further inquiry as may be necessary provided that he shall not remand the case for de novo consideration". The literal meaning coveys that, in case where Appellate Commissioner has preferred "further inquiry" he should not remand the case for de novo consideration and he is bound to record the reasons on the basis of his inquiry and pass the order. The main object of insertion of this clause is that the taxpayer should not be tormented twice on the same subject matter firstly in the hands of Appellate Commissioner and secondly, in the hands of Adjudicating Officer. Thus facilitating the taxpayer from double jeopardy.
9. In view of above discussion we uphold the findings of the learned CIR(A) and confirm the remand back of the case and dismiss the departmental appeal.