NASIR MAHMUD, JUDICIAL MEMBER .----The appellant through instant appeal has impugned the Order dated 09-12-2013 passed by CIR(A-II), Lahore ill Appeal No. 620/Sales Tax/A-II dated 30-09-2013.
2. Brief facts significant for the decision of the instant appeal are that the appellant is registered under Sales Tax Act, 1990 as manufacturer-cum- exporter engaged in making of zero rated supplies of textile and textile articles.
Appellant bears STRN 1302520000182. Show-cause notice dated 01-06-2013 on the basis of discrepancies transmitted and reported through Computerized Risk Based Evaluation of Sales Tax (CREST) whereby the Appellant has shown supplies of Rs.85,540,71 1 during period July 2011 to February 2013 to various registered / unregistered persons and against which CREST raised objections to the effect that benefit of zero rating was not available to the supplies to non-active unregistered persons or which the buyer have not declared in their returns (non- verified supplies) in terms of SRO 283(I) /2011 dated 01-04-201 1 as superseded vide SRO 1012(I)/201 1 dated 04-11-201 1, SRO 1058(1)/201 1 dated 23-11-201 1 and SRO 1125(1)/201 1 dated 3-12-201 1. The appellant was required to show why it evaded sales tax along with default surcharge and penalty be recovered from it.
3. The appellant failed to appear and contest the show-cause notice before the Assessing officer and since there was no explanation regarding CREST discrepancies, assessment order was passed against the appellant on 26- 08-2013 along with default surcharge and penalty .
4. Feeling aggrieved, the appellant assailed the assessment order by instituting an appeal before the CIR(A) on grounds, so enumerated in the grounds of appeal. The appellant asserted that appellant was not afforded opportunity of hearing and the charges of show cause were never confronted to the appellant and proceedings of assessment are nullity; it was averred that during period July, 2011 to February , 2013 goods were supplied to various persons registered under Sales Tax Act and were included in the ATL and was available/verifiable on FBR website; It was also averred that supplies were made in consonance with section 73 of the Act; the allegations and charges are misconceived. It was also argued that as per SRO 1125(I)/201 1 dated 31-12-201 1 enumerates circumstances in which the supplier would charge zero rated or reduced rate and one of these circumstances is if the buyer is registered person, the supplier would charge zero rate and all buyers (as mentioned in show-cause notice) of the appellant are registered and active on ATL and verifiable from FBR.
5. After hearing the Appellant the learned CIR(A) placing reliance on a judgment passed by honourable High Court in W.Ps Nos. 30643 and 30645 of 2013 and ATIR judgment dated 03- 07-2013 passed in S.T.A. No. 284/LB/2012 remanded the case on 09-12-2013.
6. The appellant being aggrieved of the Order of the learned CIR(A) instituted appeal before this Tribunal and the appellant AR strongly argued on legal grounds that the show-cause notice and assessment Order dated 26-08- 2013 is null and void as law qua CREST was only introduced through insertion of Section 8(1)(caa) in June 2013 and cannot be applied retrospectively . The Learned AR also argued that the order has not been passed under relevant sections/Provisions of the Act including section 11 rather the order was passed under section 36 of the Act.
It was vehemently argued that the and Appellant that during period of exemption/relevant period registered person as a whole seller were covered under the relevant SRO No.1125(I)/201 1 dated 31-12-201 1 for availing exemption and no such condition was ascribed thereto except being a registered person.
7. The DR, opposed the appeal and argued that the impugned order passed by the CIR(A) is exceptional and assessment Order was passed in acco rdance with Law and correct provision s have been applied, nothing substantial justifying interference by the Tribunal has been made out either in the grounds of appeal or in arguments advanced by the A.R. The DR also argued that the Order passed by CIR(A) is well reasoned and liable to be sustained.
8. We have perused the record available on the Record and have taken into consideration the arguments so advance on behalf of the parties.
9. The Relevant portion of Provision/Sect ion defining Powers of the Commissione r in appeal is reproduced herein below; "S. 458. Appeals (1) Any person , othe r 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 clays of the receipt of such decision or order , prefer appeal to the Commissioner Inland Revenue (Appeals)
Provided.............................
Provided further that.............................
IA.............................
(2) The Commissioner Inland Revenue (Appeals may, after giving both partie s to the appeal an opportunity of being heard, pass such order as he thinks fit, confirming, varying, altering, setting aside or annulling the decision or order appealed against Provided.............................
Provided further.............................
Provided further.............................
(3) In deciding an appeal, the Commissioner Inland Revenue (Appeals) may make such further inquiry as may be necessary provided that he shall not remand the case for denovo consideration.
UNDERLINING IS FOR EMPHASIS ONL Y
10. The bare reading of section 45B (3) of the Act, It is manifestly apparent and establish that the CIR(A) in exercise of power so vested in him has no power to remand the case. The learne d CIR(A) has no such statutory backing clothing him with jurisdiction to pass order of Remand and go beyond the scope of powers vested in him under section 45B. The issue qua Power to remand by CIR(A) has been conclusively decided by the honourable Lahore High Court in Case No. S.T.R No. 12/2012 titled "Commissioner Inland Revenue v. Messrs Supreme Tech International" decided on 28-10-2013 and held as under; "1................................................................................
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6. It is axiomatic that avoiding, long drawn litigation under section 45-B(3) of the Act is equally beneficial for the tax payer and the Tax collector . Beneficial legislation needs to be liberally construe d to actualize the object of the statute. We, therefore, hold that Collector (Appeals) cannot remand a case for de novo consideration to the lower forum but instead use the power of further inquiry to conclude the matter before him.
7. Another dimension of the case is that the Collector (Appeals) is not vested with the choice or option to pick and choose for further inquiry . Any such direction is inherently discriminatory and of fends Article 25 of the Constitution.
8. In this view of the matter , the question of law raised in the reference is answered in negative. Disposed of.
9 There is no cavil to the settled propo sition that "Expres sum Facit Cess are Tacitm" what is expressed makes what is implied to cease and the August Supreme Court inter, alia in case reported as PLD 1993 SC 473 has held what cannot be achieved directly cannot be achieved indirectly .
11. In the vague of these authoritative pronouncement and statutory clog under section 45-B(3), the CIR(A) lacks jurisdiction to go beyond the scope of section 45B(3) and remand the matter and the same is without jurisdiction.
12. We have taken into consideration the arguments of the appellant, qua introduction/enactment of CREST under Section 8(1)(caa) as it was only enacted in June, 2013 and the same is reproduced hereunder for ready reference: "8. T ax credit rot allowed:- (1)
(a)
(b)
(c)
(ca)
(caa) purchases, in respect of which a discrepancies is indicated by CREST or input tax of which is not verifiable in the supply of chain."
13. It is as clear as daylight that CREST enacted with effect from June, 2013 and tax period for which the appellant was charged pertains to July 2011 to February 2013, when CREST forming part of show-cause notice as envisage under Section 8(1)(caa) was non-existent. Therefore, the appellant could not at all be subjected to CREST retrospectively , specifically when the provision is prospective.
14. The Honourable Supreme Court inter alia case reported as 1996 SCMR 84 has held as under;
(c) interpretation of statutes ....Retrospectivity of statute.. No statute/notification is to be construed as having retrospective operation unless such construction was clearly indicated by the terms of statute itself or unless such interpretation was suggested by necessary implication.
(d) Retrospectivity of statute--Where statute/ notification itself does not by its own terms, make its operation retrospective, it would be extravagant to claim that by necessary implication it has retrospective operation."
In another case reported as 2020 SCMR 1069 "Mohammad Mansha v . IDBP"
The August Supreme Court held as under "(b) Interpretation of Statutes ..Retrospective effect---Scope -- when the legislature through an enactment altered the rights of parties by taking away or conferring any right of action, such enactment did not effect pending actions, unless provided in express terms within the enactment General rule of common law was that the statute changing the law ought not (to affect past even ts) , unless the intention appeared with reasonable certainty to be understood as applying to facts or events that had already occurred in such a way so as applying to facts or events that had already occurred in such a way so as to confer or impose or otherwise effect rights or liabilities which the law had defined with reference to past events."
15. We in view of the Preliminary Legal objections of the Appellant/AR felt persuaded to decide the appeal only on legal plane and will not give findings on the merit of the case. The Assess ment Order based on CREST discrepancies is without jurisdiction as CREST discrepancies having been applied retrospective, which application renders the assessment order 26-08-2013 null and void. The CIR(A) in its Order dated 09-12-2013 was supplied with the relevant record sufficient for decision on merit and having power to made enquiry but yet opted to remand the case in negation to the section 45B(3 ). Based on above, we are persuaded to set aside the assessment order 26-08-2013 and the impugned Order dated 09-12-2013 passed by CIR(A).
16. This appeal is accepted in the above terms.