2015 P T D (Trib.) 2352
[Inland Revenue Appellate Tribunal]
Before Shahid Masood Manzar, Judicial Member and Faheemul Haq Khan, Accountant Member
Messrs WATEEN TELECOM (PVT.) LTD., ISLAMABAD
C.I.R., LARGE TAXPAYER UNIT, ISLAMABAD
F.E.As. Nos. 3/IB and 4/IB of 2013, decided on 23rd September, 2013.
2013 PTD (Trib.) 1322; 2006 PTD 336 and 2007 PTD (Trib.) 1775 rel.
Taqiuddin, FCA for Appellant.
Imran Shah, D.R. for Respondent.
Date of hearing: 3rd September, 2013.
This appeal has been filed by the taxpayer against the Order No.385/2013 dated 23-1-2013 of CIR (Appeals-II), Islamabad. The taxpayer has agitated the impugned order of CIR (Appeal) on the basis of following grounds:–
“(1) The Order-in-Appeal No. ST-385/2013 dated January 23, 2013 issued by the learned Commissioner Inland Revenue (Appeal-II), Regional Tax Office, Islamabad [CIR (Appeals)] is bad in law, on facts and in the circumstances of the case.
(2) The learned CIR (Appeals) has erred in upholding action of ACIR in holding that payment made by the Company are not covered under the amnesty scheme announced vide S.R.O. 548(1)/2012 dated May 22,2012.
(3) The learned CIR (Appeals) has erred in not appreciating that the provisions of section 11 of the Sales Tax Act, 1990 are not applicable for Federal Excise purposes.
(4) The learned CIR (Appeals) has grossly erred in holding that the payment made on the date of issuance of S.R.O. 548(1)/2012 dated May 22, 2012 are not covered under the said SRO.
(5) The learned CIR (Appeals) has further erred in holding that the payment made during the validity period of S.R.O. 548(1)/2012 dated May 22, 2012 are not covered under the said SRO.
(6) The learned CIR (Appeals) has erred in not appreciating that hearing in respect of show cause notice dated April 27, 2012 was fixed for October 8, 2012.
(7) The learned CIR (Appeals) has erred in not appreciating that element of mens rea is not involved in the instant case as the company lately filed sales tax and federal excise returns due to existence of abnormal circumstances.”
2. Brief facts of the case are that the taxpayer did not file the sales tax return for the period i.e. October 2011 to. February 2012 and March 2012 to June 2012, violating the provisions of sections 3, 6(2), 7 and 26(1) of the Sales Tax Act, 1990 along with provisions of sections 3A and 4 of the Federal Excise Act, 2005. The taxpayer was, called upon to show cause vide letter No. C. No.ST/LTU/Enf-IV/Non filing/2011-12/503 dated 27-4-2012. and C. No. ST/LTU/Enf-IV/Non filing/2011-12/130 dated 1-10-2012 under section 11(1) of the Sales Tax Act, 1990 and Sales Tax General Order No.03 of 2004, dated 12-6-2004 and section 14 of the Federal Excise Act, 2005. ‘In respect of levy of penalty and additional taxes under the relevant provisions of Sales Tax Act. The taxpayer through his AR, vide letter dated 5-10-2012 submitted that Sales Tax Federal Excise returns have been filed along with payment of taxes availing amnesty scheme announced by Federal Board of Revenue besides filing the returns of the following period i.e. March 2012 to June 2012 not otherwise covered in the show cause notice. Hence the reply of the taxpayer could not find favour with the Assistant Commissioner Inland Revenue, who consequently passed the order in original dated 24-10-2012 as worded below:–
“I have gone through the case record submitted and has observed that registered person has filed late returns for the period October, 2011 to June, 2012 and the stance of registered person that it had filed returns under amnesty for the tax period December, 2011 to February, 2012 on, 22 May, 2012 is not tenable as per law because the records of the CPRS (computerized payment receipts) indicated that it has already submitted the cheques for clearing before the announcement of the amnesty under S.R.O. 548(1)/2012 dated 22 May, 2012. Now, in exercise of power conferred upon me under section 11(1), of Sales Tax Act, 1990 and section 14(1) of the Federal Excise Act, 2005, 1 hereby order respondent to deposit Penalty of Rs.8,541,285 under sections 33(1) and 33(1)(5) and under section 9(1) of the Federal Excise Act, 2005 and default surcharge amounting to Rs.3,917,907 under section 34 of the Sales Tax Act, 1990 and section 8 of the Federal Excise Act, 2005 for the month of October, 2011 to June, 2012.
Bifurcating of month-wise Government dues is as under.