ZAHID SIKANDAR, JUDICIAL MEMBER.----This is the second appeal preferred by the appellant under section 46 of the Sales Tax Act, 1990 against sales tax Order-in-Appeal No.404 dated 13.03.2013 passed by Commissioner Inland Revenue (Appeals), Multan (Camp Office at Lahore).
2. Brief facts of the case are that it is the case of the department that Messrs Nadeem Caterers/appellant was involved in catering supplying food/eatable at different premises and was liable to pay sales tax @ 15% and 16% of the supplies under section 3 of STA, 1990 read with Sr.1(d) of schedule to the Punjab Sales Tax Ordinance, 2000. The appellant declared turn over/other revenue at Rs.31,059,765/-, Rs. 16,486,635/- and Rs. 12,844,912/- in Income Tax returns for tax years 2007-08, 2008-09 and 2009-10 respectively whereas being engaged in supply of food/eatable at the premises, sales tax to the tune of Rs.4,658,965/-, Rs.2,637,862/- and Rs.2,055.186/- was found liable to be paid under section 3 of the Act along with special excise duty of Rs.310,598/-, Rs.164,866/- and Rs.128,449/- under Federal Excise Act for the respective years. Besides, the appellant was also found involved in mis-declaration of sales. Further, the appellant also failed to file sales tax returns and evaded sales tax and federal excise duty. Accordingly, calculation was made and a show- cause notice was given to the appellant registered person for recovery. Proceedings were carried out and the appellant was held liable to pay sales tax amounting to Rs.9,352,013/- along with different penalties and default surcharge.
3. Felt aggrieved by the aforesaid treatment, the appellant filed appeal under section 45B of the Act before the Commissioner (Appeals). Besides the appeal before the CIR(A), the appellant also filed a complaint No.164/LHR/ST(41)/325/2012 before Federal Tax Ombudsman, Lahore. The CIR(A) vide order dated 13.02.2013 dismissed the appeal. Hence, the appellant has come up in this second appeal before the ATIR against the order passed by the CIR(A).
4. Arguments Heard, Orders perused.
5. The only reason given by the CIR(A) to dismiss the first appeal is that the appellant has already obtained relief from FTO therefore no grievance is pending that requires adjudication. We are afraid that the reasoning given by the CIR(A) is totally absurd, unlawful and is not in accordance with law by any means. Record suggests that the appellant filed complaint before the FTO and following directions / recommendations were made to the FBR in the said complaint: Recommendations:
(i) invoke revisionary jurisdiction under section 45A of Sales Tax Act, 1990 as per law within 21 days.
(ii) address the issue of limitation and pecuniary jurisdiction clearly and cogently, 'and
(iii) report compliance within 07 days thereafter
6. Without commenting on the legality of the order of the FTO, it is observed that the order of, the FTO cannot and should not have any bearing on the fate of the first appeal filed by the appellant before the CIR(A). FTO is not an appellate authority against the assessment orders passed by the officers rather the scope and jurisdiction of the worthy FTO confines to questions relating to maladministration which are defined under the relevant laws. Whereas all questions decided in the assessm ent order either factual or legal are appealable before the CIR(A) which is the competent authority to adjudicate. The FTO has passed an order in the complaint filed by the appellant on account of maladministration however the CIR(A) being an appellate authority was required to pass the impugned order against the assessment order on its own merits. The question as to wrong assumption of jurisdiction assumed by the officer tantamount to maladministration or not has already been assailed by the department in the review petition against order of the FTO.
Record further suggests that during the pendency of the first appeal, the appellant filed Writ Petition No.3404/2013 before the Hon'ble High Court and the Hon'ble court directed the CIR(A) to decide the appeal in accordance with law. Powers of an appellate authority has been duly given in the statute and unfortunately . the CIR(A) failed to apply his judicial mind while deciding the appeal by holding any proper inquiry of the matter as per law. The observation of the CIR(A) is not understandable that the appellant has already got relief from the learned FTO so no further grievance of the appellant is left. Further, when the Hon'ble High Court directed the CIR(A) to decide the appeal in accordance with law during the pendency of the review petition against the order of the FTO, it further affirms that the CIR(A) was required to pass order independently on its own merits through a speaking order and after application of judicial mind. The CIR(A) has dismissed the appeal in a cyclostyle manner which cannot be approved. The order of the CIR(A) is illegal, unlawful and void hence, set aside.
7. Without touching upon the merits of the case we deem it appropriate to remand back the matter to the CIR(A) for decision afresh after giving adequate opportunity of hearing to the parties through a speaking order. The CIR(A) shall decide all factual or legal objections c raised before him by the appellant during the proceedings. The CIR(A) is further directed to decide the appeal with a period of 60 days from the date of receipt of this order.
8. The titled appeal is disposed of. We order accordingly.