This miscellaneous application has been preferred at the instance of the registered person seeking recall/rectification of the Tribunal's order passed in S.T.A. No,618/LB/2015 dated 13.8.2015.
2. Facts of the case in brief are that the sales tax had been charged on the ground that the appellant had adjusted/claimed input tax amounting to Rs,8,57,013/- on the basis of fake/flying invoices issued by a gang of fraudsters vide Order-in-Original No,18/2014 dated 21.08.2014. On first appeal stage, the learned CIR(A) also upheld the treatment accorded by the 'Adjudicating Officer vide order dated 07.04.2015. The applicant filed further appeal before the ATIR contending that no default was committed while making purchases from the suppliers who were duly registered and active at the relevant time. During the course of hearing following contentions were advanced:-- i. That the case of tax fraud against the appellant was made for the reason that the supplier of the suppliers of the appellant was involved in the fraudster activities. It is a settled principle that no- one can be charged on the default of the other:-- ii. That statement of the supplier made at the back of the appellant during investigation cannot be made basis for making a case of tax fraud against the appellant; iii. That both the suppliers at the relevant time, when the transactions took place were active at the web site of the FBR, therefore, their subsequent inclusion in the list of suspended/blacklisted unit cannot be applicable retrospectively; iv. That the purchases being below threshold of Rs,50,000/- compliance of Section 73 is not applicable; and v. That the applicant duly appeared, produced sales tax record and deposited Rs,170,000/- under protest: It was submitted that however, the Tribunal after incorporating the facts the case disposed of the assessee's appeal in non-speaking manner as under:-- "4. In response to call notice Mr. Riaz Ahmad Raja, ITP, appeared on behalf of the taxpayer while Mrs. Ghazala Hameed DR, was present on behalf of the Department. Both of them were heard.
5. We have noticed that it has been observed by the learned CIR(A) that the appellant neither filed any evidence of physical transfer of goods nor of payment through cheque in terms of Section 73.
The learned AR did not produce any evidence before us either. We are therefore, not inclined to intervene in his order.
6. Appeal fails".
3. The learned AR contended that since the contentions raised during the course of hearing remained un-adjudicated, the aforesaid order needs recall/rectification. It is also submitted that even otherwise in all other parallel cases of such like nature, the Tribunal has been remanding the cases for denvo proceedings in the light of judgment of the Hon'able High Court cited as 2015 PTD 2256 titled CIR v. Tariq Poly Pack Limited, thus a discrimination has also occurred in the case of the appellant. The learned DR, on the other hand, opposed the contentions.
4. We have considered the contentions and are inclined to hold that the contentions raised during the course of appeal remained unadjudicated. Therefore, the order dated 13.08.2015 is recalled and accordingly rectified.
5. On going through the available record and considering the contentions raised by the rival parties we have observed that the Honourable High Court in the recent judgment cited as 2015 PTD 2256 re: CIR v. Messrs Tariq Poly Pack Ltd., exactly in similar circumstances held that the Tribunal should not feel shy to exercise its jurisdiction comprehensively by directing the Commissioner or Commissioner Appeals for production of relevant record and for making necessary further enquiries and investigations in the matter of tax fraud to determine the following:-- i. The registered person/purchaser who reclaimed or deduct input tax had actually paid the tax to the supplier or not? ii. If the input tax was paid by the registered person/purchaser but not deposited by the supplier, then for purpose of Section 8A of the Act, whether the registered person/purchaser was in knowledge or had reasonable ground to suspect that some or all of the tax payable in respect of supply would go unpaid? iii.Whether particular invoices issued prior to blacklisting were fake and flying have direct nexus with the blacklisting?
6. Since the contentions and the issue involved in the instant case is exactly similar, we deem it appropriate to remand the case to the Adjudicating Officer for fresh appraisal strictly in accordance with the directions of Honourable High Court.
7. The appeal stands disposed of as above.