Law: Sales Tax Act, 1990

Section: 45,45A,45-B(2)

Law: Constitution of Pakistan, 1973

Section: 199

Law: Federal Excise Act, 2005

Section: 32

Sales Tax Act, 1990----- Section: 45A - Establishment of office of Federal Tax Ombudsman Ordinance, 2000, Section: 32 - Constitution of Pakistan 1973, Article 199 - Constitutional petition - Refund of sales tax sanctioned by competent authority through refund sanctioning orders - subsequently, petitioner received Show Cause Notice from Respondent No. 4 alleging therein that refund was not admissible and thus petitioner was directed to pay amount of refund together with penalty equal to 100% of tax involved - Show Cause Notice was issued on 16- 09-2004 and adjudication order was passed on 30-07-2005 by respondent No. 4 after lapse of more than 10 months, whereas he was required to decide same within 90 days in terms of proviso to section 36(3) of Sales Tax Act, 1990 - Appeal filed before Respondent No. 2 rejected - Petitioner filed complaint before F.T.O seeking cancellation of order-in-original, which was accepted and it was held that both orders were not legally sustainable and recommendations were thus made for cancellation of impugned orders - Department re-opened case and issued Show Cause Notice to petitioner - It is contended by petitioner that no representation was filed by Deptt. before the President therefore, order of F.T.O has attained finality - Counsel for department argued that recommendation of F.T.O is neither directive in nature nor binding on person who complies with such recommendation, therefore, he prayed for dismissal of petition - Validity - It is apparent from record that F.B.R neither issued notice nor heard petitioner before passing impugned order although section 45A clearly envisages such notice and contemplates opportunity of being heard. F.T.O never made any recommendation for re-opening of petitioner's case for de novo consideration, therefore, even on that score the order proceeds on erroneous premises. Ex-facie order does not meet basis requirements either of General Clauses Act, principle of audi alteram partem or section 45 A of Sales Tax Act, 1990 therefore, same is not sustainable and is accordingly set aside. THIS JUDGMENT DELIVERED BY: IJAZ UL AHSAN, JUSTICE:------------------- [The Judgment of the Court was delivered by…

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