This appeal under section 66 of PSTSA, 2012 (The Act) was filed by the appellant whereby the order dated 12.09.2019 passed by the Commissioner , PRA Faisalabad was challenged. The summary of the facts involved in this appeal is that on 07.03.2018 a show-cause notice was issued to the appellant wherein the appellant was charged with violation of the provisions of sections 3, 4, 11 and 14, of The Act read with PSTS (Withholding) Rules, 2015 and was called upon to show-cause as to why the amount of sales tax to the tune of Rs.22,000,403/- may not be assessed under section 52 (1) of The Act and that why it may not be recovered and section 70 along with default surcharge under section 49 and the penalty under section 48 of The Act. The SCN was contested by the appellant however the assessing officer passed the order dated 04.04.2018 whereby the assessment, as stated above, was made against the appellant. Feeling aggrieved the appellant filed an appeal before the Commissioner (Appeals). The said appeal was accepte d vide order dated 15.05.2018 whereby the assessment order was set aside. The relevant portion of the said order is reproduced hereunder , for convenience:-
7. In the above terms and without going into the facts and merits of the case, the impugned order is set-aside. The assessing officer is at liberty to issue a fresh show-cause notice and ensure proper service to confront the appellant with the tax liability and pass the assessment order in accordance with the law ."
Thereafter , on 23.05.2018 the Additional Commissioner issued fresh SCN. The appellant again contested the SCN but only by appearing before the Commissioner . Despite availing hearing opportunity on 30.05.2018 and 12.09.2019 the appellant failed to submit written reply or any document(s) in defense. Resultantly the impugned order was passed against the appellant on 12.09.2019. Being dissatisfied, this appeal was filed.
2. Learned counsel for the appellant has argued that the order impugned was passed at the back of appellant, without affording an opportunity of being heard;- That after vacation of the stay order by the Hon'ble High Court, only one opportunity of audience was granted to the appellant where after the order was passed in haste;- That the adjudicating officer was bound under the law to issue another notice when the appellant failed to appear before him;- That the impugned order is based on a proceeding in which the appellant made no contribution and that the whole proceedings were carried out and the order was passed in absence of the appellant;- That the impugned order is a non- speaking and ditto copy of the assessment order (Order-in-Original);- That the impugned order is a violation of the mandatory rules of adjudication;-That the Commissioner had no jurisdiction to pass the assessment order in second round of litigation;- That the information on the basis of which the SCN was issued was illegally obtained from the FBR record of the appellant;- That the appellant should have been given a fair opportunity of presenting the evidence and to argue the case but the appellant was deprived of these legal rights;- That if the impugned order is set aside and the case is remanded back for fresh decision, it would serve the lawful purpose in this case. Lastly learned counsel has argued that appeal may kindly be accepted and the case may kindly be remanded back to the competent officer with a direction to provide full and fair opportunity of being heard to the appellant. Learned counsel has relied upon;- I. 1999 PTD 1358 = 79 T ax 605 II. 2012 PTD 964 On the other hand, learned DR has opposed this appeal on the ground that the order impugned was passed in accordance with law and that the appellant failed to produce any evidence despite availing three opportunities, before the adjudicating officers. He further averred that the instant proceedings firstly were initiated through issuance of show-cause on 07-03-2018 and finalized on 12-09-2019 and involved appellant's explanation only on the issue of non-deduction of tax on Commission. The appellant despite consumi ng more than one and half year and despite appearing before many forums failed to file any relevant justification/evidence. Lastly argued that the appeal has no merits therefore it may be dismissed.
3. Arguments heard. Record perused.
4. The original SCN dated 07.03.2018 was issued by the Additional Comm issioner PRA Faisalabad. The proceedings in the said SCN were carried out and the matter was finally decided by the same officer vide assessment order dated 04.04.2018. The order was challenged before the Commissioner (Appeals) PRA Faisalabad. The said officer came to the conclusion that the SCN was not served upon the appellant as there was no sufficient evidence to prove the service of the SCN. Considering this sole ground, the assessment order was set aside. It is surprising that while remanding the case back to the assessment officer, the Commissioner (Appeals)
PRA. Faisalabad stated that the assessing officer would be at liberty to issue fresh SCN. In presence of the SCN dated 07.03.2018 there was no lawful requirement to issue fresh SCN to the appellant. However , the fresh SCN was issued, containing the same contents as were present in the previous SCN. The second SCN was again issued by the Additional Commissioner/Assessing officer. The date of hearing in the matter was fixed on 30.05.2018, before the Additional Commissioner . On this date a request for adjournment was made by the appellant and the case was adjourned to 07.06.2019. On this date the officer received the intimation of stay order granted by the Hon'ble High Court in Writ Petition No.217004/18 dated 04.06.2019. The stay order continued up till 19.07.2019. Thereafter the case was fixed for hearing on 12.09.2019. On this date none appeared on behalf of the appellant and the impugned order was passed by the Commissioner , PRA Faisalabad. In the impugned order there is no mention of the reason that why the matter was taken up and decided by the Commissioner instead of the Additional Commissioner . Learned DR has produced no document(s) to show the presence of any reason for the change of the officer/forum. If the order dated 15.05.2018 (passed by the Commissioner (Appeals) in the first round of litigation ) is read carefully , it would become crystal clear that the matter was remanded back to the "Assessing Officer", the one who passed the order dated 04.04.2018. If there was no Additional Commissioner available at the relevant time, the Commissioner could have easily mentioned this fact in the impugned order or before passing the impugned order while issuing notice to the appellant. A similar question was dealt with by this tribunal in another case i.e., tilled M/s. Citi Bank N.A. v. Commissioner HQ's Enforcement-IV PRA, Lahore, 2020 PTD (T rib.) 191 1. For convenience, the relevant portion of the said judgment is reproduced as under;- "10. It is also observed by this tribunal, in this case as also in many other cases, the initial show-cause notice is issued by the Additional Commissioner but thereafter the proceedings are carried out by the Commissioner without mentioning any reason for the change of forum. Section 60 of PSTSA, 2012 explains the hierarchy of the adjudicating officers. Subsection (2) of the said section empowers the Commission er to adjudicate any case falling in the jurisdiction and powers of any officer subordinate to him. But this power is to be understood in the manner that if the Commissioner feels it appropriate he can initiate the proceedings himself which otherwise falls with the pecuniary jurisdiction of the subordinate officer but that does not mean that a case initiated by the subordinate officer is to be taken up by the Commissioner without mentioning the reason for the same because this act amounts to curtailment of a forum for the taxpayer . There is no cavil that Commissioner is empowered to take up any case falling in the jurisdiction of his subordinates however , this should be done by mentioning the reasons, for intimation of the taxpayer , but usually this is not done by the Commissioner which practice is against the spirit of law and it can also vitiate the proceedings . The learned DR usually intimates this tribunal about the non-availability of certain officer(s). Be that as it may, the Commissioner , while taking up the proceedings can easily mention this fact in the record which is not done in majority of cases".
5. In addition to this there is another aspect of the case which persuades the mind of this tribunal to a conclusion that no fair and full opportunity of hearing was provided to the appellant. The second date of hearing was 07.06.2019 but prior to that the Hon'ble High Court had already granted stay order on 04.06.2019 therefore, no proceedings took place on 07.06.2019. The last date of hearing, was on 12.09.2019, on which date the appellant did not appear before the officer. Meaning thereby that only two opportunities were provided to the appellant which cannot be termed as sufficient and reasonable opportunities provided to the appellant to defend the cause. It is provided in Rule 06 of the (adjudication and appeals) Rules, 2012, that principles of natural justice, fairness, reasonableness and neutrality shall be strictly observed in the proceedings. Rule 13 of the said rules further provides;
13. Adjudication Orders.--- The adjudicating officer shall issue a self-speaking order covering, amongst-ot her things: i. Background details of the case; ii. Facts of contraventions quoting the relevant legal provisions; iii. Brief of the penal or other actions suggested in the show-cause notice; iv. Precise description of the defense relied upon by the taxpayer; v. Particulars of the data, information, records, documents and evidences examined; vi. Discussion and findings on departmental and defense arguments; vii. Principal inference drawn with reasons; and viii. Conclusive judgment.
Except for sub-rules (iv), (v) and (vi) (as there was no defense side/evidenc e etc present before the officer ) none of the sub-rules of this rule was adhered to by the officer in letter and spirit. The impugned order practically consists of hardly four lines. However we are also appreciative of the arguments of the learned DR that the appellant too behaved in a lackluster way in consuming more than sufficient time in answering only one issue confronted on the count of commission which ought to have been done at the very outset of the first round of hearing or afterwards. Hence this evasive approach of the appellant should have been avoided to reap the fruits of Rules 6 and 13 of the ( Adjudication and Appeals ) Rules, 2012.
6. In all the circumstances discussed above, this tribunal is of the considered view that case of the appellant needs a fresh decision therefore, the appeal in hand is accepted and resultantly the impugned order dated 12.09.2019 is set-aside. The case of the appellant is remanded to the competent authority with a direction to decide the case afresh after going through the available record. In view of the foregoing discussion, it is further directed that the officer/authority shall give at least one clear opportunity to the appellant to provide all the necessary documents/evidence required by the authority for a fair and proper decision of the case. If the appellant fails to submit/produce the documents/evidence, required by the authority or by the appellant himself to prove its case, the authority/of ficer will decide the case afresh in light of the observations made by this tribunal on the basis of available record.
The Registrar of the Tribunal is directed to communicate this order to all concerned immediately . File of appeal be consigned to record room.