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S.T.A. No.298/LB of 2006, decided on 5th June, 2006.

----Ss. 33(9)(c) & 25---Offences and penalties---Access to record, documents, etc. ---Levy of penalty of Rs.50,000 for failure to produce tax record for audit---Appellant contended that he had not received any notice for production of record for audit proposes---Audit of appellant unit had already been completed and produced "Audit Completion Certificate"---Department accepted the genuineness of the certificate and did not raise any objection regarding its issuance and validity---On the basis of such Audit Completion Certificate" appellant contended that no audit was required to be conducted prior to such audit---Department also failed to produce any record showing proper service of notice upon the appellant for production of record or for hearing of the appellant---No justification, existed for imposing any penalty on the appellant---Appeal was accepted by the Appellate Tribunal and order in original and order in appeal were set aside. Muhammad Farooq Sheikh for Appellant. Ashiq Hussain Duggal, Superintendent, for Respondent. Date of hearing: 16th May, 2006.

Brief facts of the case are that the staff of Sales Tax, External Audit, Lahore requested the appellant unit to produce tax record for the year 1999-2000 for audit purposes which the appellant failed to produce and as such he was charged for violation of section 25 of the Sales Tax Act, 1990 punishable under section 99(6A)(C) ibid. Allegedly, a show-cause notice was issued to the appellant unit who did not appear and finally Order-in-Original No. 06/05, dated 13-5-2005 (dispatched on 21-6-2005) was passed imposing penalty of Rs.50,000 by the learned Adjudicating Officer. Feeling aggrieved, the appellant filed appeal before the learned Collector Customs, Sales Tax and Federal Excise (Appeals), Lahore who did not agree with the contention of the appellant, and consequently dismissed the appeal and upheld the impugned order vide Order-in-Appeal No.ST-02/2005, dated 11-8-2005. The appellant feeling dissatisfied has assailed the said order before this Forum. 2. I have heard both the parties and perused the record. The respondent has raised preliminary objection regarding late filing of the appeal. It is stated that the impugned order in appeal was passed on 29-8-2005 and the appellant was competent to file appeal within 60 days i.e. till 29-10-2005, whereas the appeal has been filed on 19-4-2006, which is clearly barred by time. However, on the other side the appellant has contended that the impugned order in appeal, dated 29-8-2005 was never sent to the appellant and unless he receives the decision, no limitation can run against the appellant. It is further slated that as the appellant did not receive any decision of the learned Collector (Appeals), he therefore, applied to the Collector for issuance of an attested copy of the impugned order in appeal vide letter, dated 7-2-2006. Copy of which has been placed on the file. It is further contended that in response to the said letter, the learned Collector had issued an attested copy vide his letter C. No.ST App 06/05/394, dated 20-2-2006 which was received by the appellant on 21-2-2006. In support of his contention, he has also placed on file copy of the postal envelope through which the impugned order was sent/supplied. The appellant has filed an application for condonation of delay under section 5 which is supported by an affidavit of the appellant. The respondent has not filed arty counter-affidavit or any proof that the appellant was provided copy of the impugned order prior to 21-2-2006. 3. In view of the above discussion, the appeal is held within time and the objection raised by the respondent is rejected. 4. On merits, the learned counsel for the appellant has contended that the appellant did not receive any notice for production of the record for audit purpose. It has been submitted that the audit of the appellant unit was completed for the period ending June, 2003. He has produced a letter under the Heading "Audit Completion Certificate" issued by the Superintendent vide No. 25/GST/COMP/NON-FIL/2003-4/1127, dated 7-11-2003. This Audit Completion Certificate was shown to Mr. Ashiq Hussain Duggal, Superintendent, representing the respondent/department who accepted, the genuineness of the certificate and did not raise any objection regarding its issuance and validity. On the basis of the said Audit Completion Certificate, the appellant has contended that no audit was required to be conducted prior to June, 2003. It has further been asserted by the appellant that actually no notice for production of record of hearing was ever served on the appellant. The respondent was asked to produce any proof/notice of hearing having been properly served on the appellant. The respondent failed to produce any such record showing proper service of the notice upon the appellant for production of record or for hearing of the appellant. 5. In view of the above discussion, I do not find any justification for imposing of any penalty on the appellant. The appeal is, therefore, accepted and the impugned order in original and order in appeal are hereby set aside. C.M.A./60/Tax (Trib.) Appeal accepted.

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