Through this appeal filed under section 66 of PSTSA, 2012, the appellant has impugned the order dated 06.03.2019, passed by the Commissioner (Appeals) PRA Lahore.
2. The facts involved in this appeal are that on 14.12.2017, Additional Commissioner PRA Rawalpindi issued show- cause notice to the appellant whereby it was alleged that while scrutiny of the record and on the basis of information available in the office, it was revealed that the appellant was engaged in building and promoting "Minara Residence" at GT Road Rawalpindi and that the appellant provided taxable services A under serial No. 15 of the 2nd Schedule of PSTSA, 2012 hence the appellant was liable to pay tax in the following manner .
Sales Tax on building construction (Rs.5 0 per sq.ft)Rs.14,539,050/- Penalty for non-submission of Returns Sales TaxTo be calculated Default surcharge To be calculated at the time of payment.
TOTAL AMOUNT OF P AYABLE PST :- Rs.14,539,050/- It was further alleged in the said show-cause notice that the appellant had contrave ned the provisions of sections 3, 10, 11, 18 and 35, of PSTSA, 2012 read with PSTS (Returns Rules) with the attempt of committing tax fraud as defined under section 2(43) of the Act hence, an amount of Rs.14,539,050/- was found recoverable under section 24(1), along with penalty under section 48(1) and default surcharge under section 49(1) of PSTSA, 2012.
3. The appellant contested the show-cause notice and filed his written reply on 10.04.2018. After hearing, the Additional Commissioner passed the final order on 1 1.04.2018.
4. Feeling dissatisfied the appellant filed appeal before Commissioner (Appeals) PRA Lahore. This appeal was decided on 13.08.2018 whereby the order dated 11.04.2018, of Additional Commissioner was modified by deleting the amount of penalty for lack of mens-rea.
5. Feeling aggrieved of the order dated 13.08.2018, the appellant preferred an appeal before this tribunal. The said appeal was decided on 03.01.2019 where by the case was remanded to the Commissioner (Appeals) PRA Lahore for rendering fresh decision on all the issues raised in the appeal as this tribunal observed that the order in question was not self-speaking on all the material issues/grounds and that the Commissioner (Appeals) had failed to consider the additional grounds as permissible under section 64(3) of the PSTSA, 2012.
6. After remand of the case the Commissioner (Appeals) heard the matter afresh and passed the final order on 06.03.2019. The said order granted no further relief to the appellant and the fate of the appeal was the same as was in the order dated 13.08.2018. Feeling aggrieved, the appellant has again approached this tribunal by way of filing this appeal.
7. Learned counsel for the appellant has questioned the legality of both the orders by contending that the appellant does not provide any taxable service; that in the whole PSTSA, 2012 and Rules made there-under , there is no definition of developer , builder and promoter;- that in both the orders passed by the Commissioner (Appeals), the appellant was stated to be a property dealer whereas in the order dated 11.04.2018 of Additional Commissioner , the appellant was shown as a builder and that this is not only an anomaly but also shows the confusion in the mind of the department;- that the department itself is not sure about the nature of business of the appellant and has wrongly treated him as builder;- that the appellant falls in the category of entry/serial No. 32 of the 2nd Schedule of PSTSA, 2012. (it is notable here that in the same breathe the learned counsel has also argued that the appellant is not even a property dealer);- that the appellant was compulsorily registered by the department as property dealer;- that the appellant is not required to prove the nature of his business and that it is the duty, of department to ascertain the nature of the business of appellant;- that the appellant is engaged in construction work through his own employees i.e., laborers, masons, painters, architects, engineers, hence, rendering no service to anyone;- that the appellant is constructing a multi storied plaza for the purpose to sell the apartments, residential flats and officers etc;- that the business activities of the appellant do not fall within the mean ing of taxable activities;- that the appellant was registered as property dealers but has been taxed under the garb of builders which proves nothing but confusion. Lastly learned counsel has argued that the show-cause notice dated 14.12.2017, assessment order dated 1 1.04.2018 and the order dated 06.03.2019 may be set-aside and that this appeal may be accepted.
8. On the other hand, learned DR has argued that although the appellant is regis tered as property dealer but his activities as builder were assessed/taxed because it is the nature of activities which is to be taxed;- that before the Additional Commissioner , the appellant himself took the plea that his activities were taxable but in a different manner;- that the appellant is habitual of blowing hot and cold in the same breath ;-that the appeal may kindly be dismissed as having no merits.
9. Arguments heard. Record perused.
10. Perusal of the record and the arguments of the appellant counsel prove that the appellant is in the habit of taking different and contradictory stance before different forums. Before the Additional Commissioner , the appellant himself stated in his reply that certain area of the plaza was not saleable therefore it may be exempted from the tax. The appellant further stated in the said reply that total taxable area of "Minara Residence", is 170852000 Sq.Ft.
Except this, appellant raised no other dispute. Before the Commissioner (Appea ls) the appellant again took the same plea i.e., of saleable and non-saleable area. In the second round, after remand of the case, the appellant, before the Commissioner (Appeals) pressed no other ground except the additional ground filed subsequently , that he is a property dealer (paragraph 2 of order dated 06.03.2019). Before this tribunal while arguing the case, the learned counsel for the appellant argued in the same breath that the business category of the appellant falls under entry/serial No. 32 of the 2nd Schedule of the PSTSA, 2012 and also argued that he is not a property dealer and that he was registered compulsorily and forcibly by the department as property dealer whereas he is not. It is rightly observed by the Commissioner (Appeals) that the argument/contention that he was forcibly registered as property dealer has no weight because the appellant could have easily got himself de-registered from the said category or could have agitate the said issue before any competent forum but he did not do so. This in-action of the appellant proves that his stance is against the record.
11. Perusal of the original record reveals that previously the office of the appellant was sealed by the department and documents were also impounded. One such document is a leaflet having a picture of the plaza i.e., "Minara Residence" and the "Khayal and Sons Group" is stated as developers. Even otherwise there is no doubt in the mind of this tribunal as is also rightly observed by the forums below that appella nt is involved in the activities of builder and developer . It is rightly argued by the learned DR that taxable service is, the actual activity of the taxpayer and not the nature of business for which he got himself registered. The construction of plaza/building and its development as residences/of fices etc., with the intention of selling it out and then selling the same (these are undeniable facts) is enough proof of the activities of the appellant as falling under entry/serial No. 15 of the 2nd Schedule of PSTSA, 2012. The Commissioner (Appeals) has sufficiently attended this aspect in Paragraph No. 3 of his order dated 06.03.2019.
It is also rightly held by the Commissioner (Appeals) that there is no concept in the law/Act regarding the bifurcation of saleable and non- saleable areas.
12. In view of the above discussion we find no merits in this appeal hence the order of the Commissioner (Appeals) dated 06.03.2019 is upheld and the appeal in hand is dismissed.
The Registrar of the Tribunal is directed to communicate this order to all concerned immediately . File of appeal be consigned to record room.