MUHAMMAD JAWED ZAKARIA, JUDICIAL MEMBER.---This appeal has been filed by the taxpayer against the Assessm ent Order No,37 of 2012 dated 20.01.2012 passed by the Assistant Commissioner Inland Revenue under sections 11(2) and 36(2). The taxpayer has agitated on the following grounds of appeal:--
1. The order passed by the Respondent is bad in law and on facts and without jurisdiction.
2. That the order is barred by time as provided in proviso to section 36(3) of Sales Tax Act.
3. That the Learned Commissioner who passed the order has never issued any notice under section 36 in the capacity of Commissioner.
4. That on the face of the impugned order of the office is mentioned as "Office of the Assistant Commissioner Inland Revenue A Zone Regional Tax Office-III, Karachi" while the order is signed by the Zonal Commissioner.
5. That without prejudice to above the Learned Commissioner has not given any reasons to discard the reply and submission as such the order is bereft of the provisions of General Clause Act"
2. Brief facts of the case as gathered from the record are that the appellant is engaged in the business of plastic product is duly registered under Sales Tax Act, 1990 vide Registration No,0203390003982. The Deputy Commissioner Coordinator issued notice dated 21.12.2010 alleging short realization of sales Tax amounting to Rs,873,842/- which was responded by the appellant vide his letter dated 28.12.2010 clarifying that there is no short payment of tax. Again a show cause notice dated 12.08.2011 was issued by the Assistant Commissioner Inland Revenue and required explanation under sections 11(2), 11(4) and 36(2) of the Sales Tax Act and proposed action under sections 36(1), 33 and 34 of Sales Tax Act and the appellant again filed explanation vide his letter dated 24.09.2011. Third time the Additional Commissioner issued a show cause notice under sections 11(2) and 36(2) of Sales Tax Act and this time also the appellant filed explanation vide letter dated 29.11.2011. The learned Commissioner has, however, passed the order No,37 of 2012 dated 20.01.2012 directing to deposit the Sales tax along with default surcharge and penalty under section 33 of Sales Tax Authority resulting in invoking the jurisdiction of this Tribunal. In view of the directions given by the Commissioner vide his order to file the appeal before the Tribunal; the taxpayer being aggrieved filed the appeal before this Tribunal.
3. On the date of hearing, Mr. Muhammad Mehtab Khan, Advocate, appeared on behalf of the appellant while Mr. Umar Farooq, learned DR represented the Department/respondent.
4. Mr. Muhammad Mehtab Khan, Advocate, learned counsel for the appellant submitted that the order passed by the Respondent is bad in law and on facts and without jurisdiction. He further submitted that the order is barred by time as provided in proviso to section 36(3) of Sales Tax Act.
He also submitted that the Learned Commissioner who passed the order has never issued any notice under section 36 in the capacity of Commissioner. Learned counsel for the taxpayer pointed out that on the face/head of title of the impugned order of the office is mentioned as "Office of the Assistant Commissioner Inland Revenue a Zone Regional Tax Office-III, Karachi" while the order is signed by the Zonal Commissioner. While concluding his arguments, the learned Counsel submitted that Learned Commissioner has not given any reasons to discard the reply and submission as such the order is bereft of the provisions of General Clauses Act.
5. Learned counsel for the taxpayer submitted that the show cause notice issued on 12th August, 2011 and the impugned order (Assessment order) No,37 passed on 20.01.2012 which is barred by time and beyond the period of 120 days. If the clock is counted from the second show cause notice which issued on 21st September, 2011, even then it is time barred. The order passed by the CIR, who had never ever issued show because notice and the order framed by the CIR without given any opportunity. In support of his contention, learned AR cited on the following case laws:--
1. 2013 PTD (Trib.) 2130.
2. 2013 PTD (Trib.) 1971.
3. S.T.A. No, 134/LB/2011 dated 14.10.2011.
6. Accordingly, the learned counsel for the taxpayer prayed that impugned order be set aside being without jurisdiction, time barred and violative of the provisions of General Clauses Act.
7. On the other hand, learned DR appeared, he, at the very outset has taken legal objection about the maintainability of the instant appeal. He submitted that the impugned order has been passed under section 11(2), therefore, this appeal should be filed before the CIR(A) under section 45-B of the Sales Tax Act, 1990 which specifically speaks out that the order passed under section 10, 11, 25, 36 or 66 by an Officer of Inland Revenue may within 30 days of the receipt of the order prefer appeal to the CIR(A) under subsection (1) of Section 45-B of the Sales Tax Act, 1990.
8. We have heard both the parties and perused the available record. Under the Sales Tax Act, 1990 Chapter -VIII (Appeals), power of adjudication has been done away with and section. 45 power of adjudication omitted by the Finance Act, 2010. Earlier power of adjudication cases falling under section 11(2) and section 36 was before Additional Collector and Deputy Collector, Assistant Collector and Superintendent. After the insertion of section 45-B vide Finance Act, 2002 dated 15th June, 2002 which speaks that any person other than the Sales Tax Department, aggrieved by any decision or order passed under section 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). Section 46 of the Sales Tax Act, 1990 envisages that Any person including an officer of Inland Revenue not below the rank of Additional Commissioner aggrieved by any order passed by (a) the [Commissioner Inland Revenue] (Appeals) under section 45B, (b) the [Commissioner Inland Revenue] through adjudication or under any of the provisions of this Act (IT MEANS THOSE PROVISIONS WHICH ARE NOT COVERED BY THE SECTION 45 OF THE SALES TAX ACT, 1990) or rules made thereunder, (c) the Board under section 45A may, within sixty days of the receipt of such decision or order, prefer appeal to the Appellate Tribunal.
(Bold underlined is ours for emphasizing)
9. Thus, any orders passed by Officer Inland Revenue under section 10, 11, 25, 36 or 66, the appeal against these orders of OIR are appealable before CIR(A). Therefore, in the instant case the said appeal to be filed before CIR(A).
10. The impugned order passed under section 11(2), therefore, this appeal to be filed before the Commissioner (Appeals). In this connection we may also rely reported judgment reported as Plyfo Industries (Pvt.) Ltd. v. Asst. Collector 2011 PTD 2795, wherein their Lordship has held as under:-- "Power of adjudication---Audit report creating liability against Petitioner to pay Sales Tax---Show Cause Notice to petitioner by Collector -Adjudication by Collector directing petitioner to file appeal against his order before Tribunal---Section 45 of- Act vested jurisdiction of adjudication in Additional Collector contention of petitioner-Validity-Whether bare perusal of section 45 show that work of adjudication has been assigned to officers of Sales Tax department up to rank of Additional Collector---Held yes---Whether appeal against order of Adjudication passed by Additional Collector and other officer below in rank to him has been provided to Collector of Sales Tax Appeal in terms of section 45-B(1) of Sales Tax Act, 1990---Held yes---Whether nowhere in Sales Tax Act, 1990 prior to amendment by Finance Act, 2010: Powers of adjudication granted under section 45 of Sales tax Act to Additional Collector have been delegated to Collectorate (Appeals) is functioning as appellate forum and reviewing Authority against order passed by Additional Collector, Deputy Collector, or Assistant Collector under section 45-A of Sales Tax Act-- -Held yes-Whether Impugned order is corium non judice and is not sustainable under law and hence set aside---Held yes--"
11. This appeal to be filed before the concerned CIR(A) for proper adjudication of the legal issues and factual issues as raised before us. The learned CIR(A) may condone the delay in filing of appeal before him because of bona fide mistake of the counsel by filing appeal before the wrong Forum. The taxpayer should not be made victim of his counsel's mistake.
12. In view of the above discussion, the appeal of the taxpayer is dismissed.