Justice Nadeem Azhar Siddiqi : This appeal has been filed by the appellant challenging the Order-in-Appeal No.41/2016 dated 15.04.2016 passed by the Commissioner (Appeals) in Appeal No. 138/2015 against Order in Original No. 292/2015 dated 22.05.2015 passed by the Assistant Commissioner (Mr. Vickey Dhingra) SRB, Karachi.
1. The facts of the case as mentioned in the Order-in-Original are that the respon dent is-registered with SRB for providing or rendering services in respect of Stock Broker falling under tariff heading 9819.1000 of the second Schedule to the Sindh Sales Tax on Services Act, 2011 (hereinafter referred to as the Act) and is chargeable to Sindh Sales Tax.
2. It was alleged in the order-in-original that from scrutiny of financial statements for the year ended June, 2013 and June, 2014 revealed that the respondent received the consideration amounting to Rs.4,833,581/= and 2,950,100/.= for the tax periods from July, 2012 to June, 2014 in respect of sub-brokerage. It was also alleged that vide notice dated 13.11.2014 the respondent was required to submit the details along with copies of ledgers. However the respondent failed to provide the requisite documents.
3. It was further alleged that respondent was served with a show-cause notice dated 28.11.2014 for imposing penalty under Entry No. 15 of section 43 of the Act. The respondent filed written reply dated 01.12.2014 and 10.12.2014 and 16.12.2014 submitted that compliance of the notice of November has been made.
4. The Assessing Officer as per para 9.5 of the order of imposed penalty of Rs.100,000/ under Entry No. 3 of the table under section 43 of the Act upon the respondent.
5. The said order of the Assessing Officer was challenged by the respondent by way of filing appeal before the Commissioner (Appeals), who allowed the appeal, hence this appeal.
6. The learned AC submits that the penalty was rightly imposed as the respondent failed to comply the notice issued under section 52 of the Act. He then submits that to verify the returns the production of ledger was necessary . He further submits that the Commissioner (Appeals) without justification has waived the penalty .
7. The learned representative of the appellant fully supported the order-in-appeal and submits that the requisite documents were provided and the Commissioner (Appeals) was satisfied with the compliance made by the 9V appellant.
8. The Assessing Officer in its order re-produced Entry No. 15 of the table under section 43 of the Act, but impose penalty of Rs.100,000/. Under Entry No. 3 of the table under Section 43 of the Act upon the respondent, which is not applicable in this case.
9. The Commissioner (Appeals) in para 4 of his order confirmed that the respon dent has provided the required documents. The Commissioner (Appeals) also held that the element of mens rea and malafides were absent.
10.Since the appellant by providing the requisite documents during pendency of appeal before the Commissioner (Appeals) has duly complied the requirem ent of section 52 of the Act and is not liable to pay any penalty . I am satisfied that the Commissioner (Appeals) for valid reason and justification setas ide the penalty imposed by the Assessing Of ficer and there appears no justification to interfere with the appellate order .
11.In view of the above the appeal filed by the Department is dismissed. The copy of this order may be supplied to the learned representative of the parties.
Karachi. (Justice Nadeem Azhar Siddiqi)
Sated: 1 1.08.2017 CHAIRMAN copies supplied to:-
1. The Assistant Commissioner , SRB, Karachi.
2. The Respondent through Authorized Representative.
Copy for information to:- 3) The Commissioner (Appeals), SRB, Karachi.
4) Of fice 5) Guard file.