Justice Nadeem Azhar Siddiqi: This appeal has been filed by the appellant challenging the Order-in-Appeal No.131/2016 dated 26.08.2016 passed by the Commissioner (Appeals) in Appea l No. 59/2016 against Order in Original No. 76/2016 dated 02.02.2016 passed by the Assistant Commissioner (Ms. Nida Noor) SRB, Karachi.
The facts of the case as mentioned in the Order-in-Original are that the respondent is registered with SRB for providing or rendering services in respect of Technical, Scientific and Engineering Consultant falling under tariff heading 9815.5000 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 the respondent was served with notice under section 52(1) of the Act for providing certain documents, but the respondent failed to provides the documents.
3. It was further alleged that respondent was served with a show-cause notice dated 01.01.2016 for imposing penalty under Entry No. 15 of section 43 of the Act. The respondent filed written reply dated 11.01.2016 and submitted that the audit report 2015-16, which is still not audited, will be filed on 3e, of January , 2016.
4. The Assessing Officer imposed penalty of Rs.100,000/= under Entry No.15 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 penal ty was rightly imposed as the respondent has failed to comply the notice issued under section 52 of the Act. She then submits that at the date of notice under section 52 the respondent was in possession of audited accounts, which was not deliberately produced. She then submits that penalty was imposed for non-production of audited accounts for the year 2014-2015 and not for 2015-2016 and the Commissioner (Appeals) without justification has waived the penalty .
7. The learned representative of the respondent fully supported the order in appeal and submits that the respondent has not received the letter dated 16.12.2015 and the show-cause notic e dated 31.12.2015 was replied.
He then submits that the order-in-origi nal was passed in haste without providing proper opportunity to the respondent to produce documents. He then submits that the requisite documents were placed before the Commissioner (Appeal who after satisfying himself and for valid reason allowed the appeal.
8. 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. The argument of the learned representative of the respondent that the order-in-original was passed in haste has force.
The Assessing Officer before passing the order should clarify the position that the audited accounts were asked for the year 2014-2015 and not 2015-2016, which was not done.
9. Since the appellant by providing the requisite documents during pendency of appeal before the Commissioner (Appeals) has duly complied with the requirement of section 52 of the Act it 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 .
10. 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)
Dated: 15.08.2017 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 copy 5) Guard file.