' CH. ANWAAR UL HAQ (JUDICIAL MEMBER).---The titled appeal has been preferred at the instance of taxpayer calling in question the impugned Order-in-Appeal No,24/2013, dated 26-9-2013, passed by the learned CIR (Appeals-I), Islamabad.
2. Briefly stated, the relevant facts for disposal of appeal are that during the course of scrutiny of financial statements of the taxpayer for the period July 2008 to June 2009, the concerned DCIR found following discrepancies:--
(i) Non-payment of sales tax on supply of free electricity to employees and other distribution companies.
(ii) Non payment of sales tax on scrap sales.
(iii) Non payment of sales on amount received on account of demand notices.
(iv) Input tax apportionment against subsidy received from Government of Pakistan.
(v) Un-realized general sales tax.
On the basis of above, the taxpayer was confronted through a show cause notice dated 8-5-2012, under section 36(1) of the Sales Tax Act, 1990, and the taxpayer was asked to show-cause as to why sales tax amounting to Rs,.2,454,388,510 due for the period July 2008 to June 2009, should not be recovered along with default surcharge under section 34 and as to why a penalty under section 33 of the Act, should not be imposed. The concerned DCIR provided seven opportunities of hearing, however, allegedly, the taxpayer failed to respond any of the hearing opportunity accorded to them and only requested for adjournments which were allowed. It is observed by the DCIR in the body of the impugned order that the taxpayer's attitude towards their case was completely noncooperative as they had failed to respond to the charges levelled in the show-cause notice as after lapse of almost four months the taxpayer had failed to provide even a partial reply/explanation on the issues confronted through show-cause notice. Accordingly, the DCIR proceeded ex parte against the taxpayer and the sales tax amount of Rs,.2,454,388,510 as confronted through show-cause notice was found recoverable from the taxpayer-company along with default surcharge under section 34 as well as penalty under section 33 of the Sales Tax Act, 1990. Being aggrieved of, the taxpayer went in appeal before the learned CIR(A) and assailed the treatment meted out at assessm ent stage. The learned CIR(A) after scrutiny of available record found that the appeal filed before it was time barred as the taxpayer has failed to file the appeal within the statutory time limitation provided in law. Hence, the appeal of the taxpayer was dismissed by the learned CIR (A) as having been filed beyond limitation and badly time barred with the following observations:-- "On scrutiny of appeal papers, it has been found that the impugned order was passed on 03-9- 2012 and served on the appellant on 12-9-2012 whereas the appeal was filed on 19-8-2013. The instant appeal has been filed late by the appellant almost more than 10 months after receipt of the impugned order. The appellant filed additional grounds to the effect that the order was served late upon the company by taxation authority which led to late filing of appeal. To verify contention of the appellant the record was checked from the concerned Zone regarding service of order-in- original. As per TFC record, the Order-in-Original was sent through urgent mail service vide receipt No,11542782 dated 10-9-2012 which is a proper service under the rules. The service of the impugned order has also been verified from UMS on line Track and Trace System which confirmed that the said order was received by the company on 12-9-2012. It has also been noticed that the upper right hand corner of the copy of the impugned order provided by the appellant also bears the date of 12-9-2012 under someone's initials. All these facts go to prove beyond any doubt that the impugned order was served by the department on the appellant on 12-9-2012 and thus the plea of the appellant that the impugned order was served late is found against facts of the case. As per section 45B(1) of the Sales Tax Act, 1990, the appeal has to be filed within thirty days of receipt of demand notice/order-in-original whereas the appellant filed the appeal on 19-8-2013 whereas it was required to filed appeal by 12-10-2012. Therefore, the present appeal is time barred and hit by limitation."
3. The learned AR on behalf of taxpayer assailed the orders of the authorities below as contrary to law and facts of the case. It is submitted by the learned AR that the learned CIR(A) was not justified to dismiss the taxpayer-company's appeal on the ground that the same is filed beyond the statutory time limit. It is contended by the learned AR that the taxpayer's appeal was well within the time prescribed in law as the same was filed after obtaining the attested copy of the impugned orderin-original on 16-8-2013 and appeal was filed on 17-8-2013, hence, the same is within time. It is asserted by the learned AR prior to obtaining certified copy of order on 16-8-2013 no order was ever served upon the taxpayer. It is submitted by the learned AR that as per record of the LTU, the original order was served thorugh UMS and service of order through such a way are totally illegal and not acceptable in the eyes of law as Such rejection of appeal on time limitation is illegal. It is also asserted that the dismissal of appeal without giving specific hearing to the appellant is highly unjustified and illegal.
4. It is also the appellant's contention before us that the impugned order-in-original dated 3-9- 2012, is null and void as the same could not A have been passed when the stay against the show- cause notice which was later on turned into the impugned order-in-original, was issued by the Hon'ble Islamabad High Court against Writ Petition No,2919 of 2012 dated 11-9-2012. It is further submitted by the learned AR that the Officer Inland Revenue had failed to report to the Hon'ble Islamabad High Courts during the course of stay proceedings that the show-cause notice had already turned, into the impugned order-in-original. It is contended by the learned AR that such attitude of the department clearly confirms that he impugned order-in-original dated 3-9-2012 did not exist on 11-9-2013, when the stay order was passed by the Hon'ble Islamabad High Court.
5. On the contrary, the learned representatives of Revenue, strongly rebutted the submission made by the learned AR on behalf of taxpayer. The learned DR/LA controverted the learned AR's contention that the impugned order-in-original was passed in violation of the stay order of the Hon'ble Islamabad High Court and submitted that the orderin-original was admittedly passed by the DCIR on 3-9-2012 and the same was dispatched to the taxpayer through Urgent Mail Service vide receipt No,11542782 on 10-9-2012 which was served on 12-9-2012. Proof of service in the shape of verified report of UMS on line Track and Trace System was also placed on record. It is contended by the learned DR that the impugned order-in-original was passed well before the Hon'ble High Court's stay order dated 11-9-2012. It is further asserted by the learned DR that the appellant never alleged before the Hon'ble Islamabad High Court or even in the Grounds of Appeal taken before the CIR(A) that there was any violation of any stay order issued by the Hon'ble Islamabad High Court. It is also submitted by the DR that the service of notice is in accordance with law and the UMS service is a courier service and is proper service.
6. We have heard the arguments put-forth by the learned representatives of both the sides and have carefully gone through the available record. After due consideration, we find that no exception can be taken to the treatment as accorded by the learned CIR(A) which is found to be fair and reasonable in the ambient circumstances of the case. The learned AR on behalf of taxpayer has failed to make out a case before the learned CIR(A) as well as before us that the appeal filed by the company before the learned CIR(A) is well within the time limitation provided under the law. The impugned order-in-original was admittedly passed on 3-9-2012 and served upon the taxpayer through Urgent Mail Service (UMS) on 12-9-2012, whereas the appeal before the learned CIR(A) was filed on 19-8-2013, hence, the same is grossly time barred. As per the provisions of section 45B(1) of the Sales Tax Act, 1990, the taxpayer was required to file the appeal before the first appellate authority within 30-days of the receipt of the impugned order which the company had failed to do so. As far as the taxpayer's contention regarding service of impugned order is concerned, we find that Urgent Mail Service (UMS) is a valid service as the same is equivalent to a courier service which had been duly initiated by the recipient. It is further noticed that on the face of the impugned order-in-original provided by the taxpayer before the learned CIR(A) it also bears the initials and date of receipt of order as 12-9-2012 by some official of the company. The same clearly shows that the order was served upon the taxpayer on 12-9-2012. This fact has not been denied by the appellant during hearing of appeal. Further it is to be noted that admittedly no application was moved before the CIR(A) for the purpose of condoning the delay. It is settled law that as far as the limitation is concerned, it does create a right in favour of the other side and if the appeal or proceedings are time barred it becomes the duty of the person who has approached the court at least to submit an application or make an explanation but in the instant case admittedly no such effort was made knowing well by the appellant that the appeal was barred by time.
Reliance may be placed on the judgment of the Hon'ble Supreme Court of Pakistan in re: Messrs Nida-e-Millat, Lahore v. Commissioner, reported as 2007 PTD 1387, relevant part of the said judgment is reproduced:-- "5. It is to be noted that admittedly no application was moved before the Commissioner of Income Tax for the purpose of condoning the delay. Surprisingly for the first time before this Court an application has been filed seeking condonation of delay, relevant para. Therefore is reproduced hereinbelow:--- "That though the appeal before the Commissioner of Income Tax, was within time and cannot be, declared time-barred. Still by way of abundant caution, the petitioner is submitting this application for condonation of delay of alleged one day before the Commissioner of Income Tax (Appeals). Although an affidavit was filed for explaining all the circumstances and showing that the appeal is within time."
6. Filing of the above application at the stage itself goes to indicate that the appeal filed before the Commissioner of Income Tax was barred by time, therefore, the petitioner had an obligation to make an application before the said forum and at this stage this Court in exercise of jurisdiction under Article 185(3) of the Constitution cannot condone the delay which has occurred in filing of the appeal before the Commissioner. Besides as far as the limitation is concerned, it does create a right in favour of the other side and if the appeal or proceedings are time-barred it becomes the duty of the person who has approached the Court at least to submit an application or make an explanation but in the instant case admittedly no such effort was made knowing well by the petitioner that the appeal was barred by time. Therefore under these circumstances, we are of the opinion that the High Court has rightly declined relief to the petitioner."
7. From the perusal of record, it is also clearly evident that no violation of the stay was made by the department as the impugned orderin-original was passed well before the stay order of the Hon'ble Islamabad High Court.
8. Therefore, under these circumstances, we are of the opinion that CIR(A) has rightly declined relief to the appellant.
9. For the foregoing reasons, the appeal is accordingly dismissed.