SAJID NAZIR MALIK (MEMBER):- This appeal has been filed by the appellant/Registered Person against the order-in-appeal No.02 dated ()6e 12.2023 passed by the Commissioner Inland Revenue Officer (Appeals VI), Karachi for the tax period July, 2016 to June, 1027 on the grounds s set forth in the memo of appeal.

Bri f facts of the case are that on the basis of information received directorate of intelligence & investigation Inland Revenue, Multan vide lett r No DIR/1&1-1R/MN/1427 dated 30.06.2023 that the appellant suppliers/activity with Was not reported in taxpayer's

Federal Excise returns, consequently due to reporting sales tax charged thereon was not deposited into the governn ent exchequer which was otherwise required under section 3(1) oft] e Sales Tax act, 1990 (hereinafter referred to as "the Act"). The reply fu .nished by the registered person did not find favor of the assessing officer which resulted in culmination of proceedings by passing of order in original No.55/2002-23 dated 29.05.2023 by the assessing ; officer whereby total sales tax demand of was adjudge against the appellant taxpayer.

I 3. Being aggrieved with the order of the assessing officer the appellant filed appeal before the Commissioner (Appeals-VI) who vide order 02 dated 06.12.2023 disposed of the appeal. He appellant still

STA No. 

MA Hamrnad 

being dissatisfied with the impugned order filed this appeal on the grounds of appeals as set forth in memo of appeal.

4. The case was heard on 15.11.2024. Mr. Irshad Alam advocate appeared on behalf of the appellant registered person and re-iterated the grounds as per memo of appeal. The learned AR of the appellant assailed the impugned order on legal plane as well as merits of the case. The learned AR argued that the learned Commissioner ( Appeals) after pointing out legal and factual infirmities in the order passed by the assessing officer and categorically concluding that sales tax liability on the appellant concerning transactions with Mr. Bashir t sustainable based on presumption or assumptions and

the annexure- does not constitute a valid basis for determining the appellant'se«x ility, was not justified to remand back the matter to
Ӣcer. He contended that the Commissioner (Appeals) o remand a case for denovo consideration rather under of sub section (3) of section 45B of the Sales Tax Act, 1990 sioner (Appeals) has specifically bar from remanding the case back to th̩ assessing officer. He submitted that in the case under consideration the Commissioner (Appeals) had annulled the order of the assessing officer and his findings with regard to remand the case were without jurisdiction. The learned AR also raised the objection to

the order passed by the assessing officer contending that the assessing officer has charged tax on the basis of presumptions and assumptions without any legal and factual basis. He contended that the annexure-F is only designed for commercial importer and not for the appellant.The language of sales tax return serial number 27 is "credit carries forward on account of value addition tax" and Annexure-F titled state with "Annex-F, Carry forward summary", Annexure F is designed for commercial importer on account of value addition tax for commercial import deposited value added sales tax in advance at customs stage.

The AR further submitted that the FBR issued sales tax circular No.04 of

2019 dated 21.10.2019 wherein para-3 of the said circular states that "the entries in Annex-F have no bearing on refund claim except that carry forward of value addition tax is excluded from refund amount".

The learned AR finally prayed for vacation of findings of the learned Commissioner (Appeals) with regard to remand of the case, being in

excess of his jurisdiction. On the contrary, the learned DR vehemently supported the impugned order of the learned Commissioner (Appeals) and opposed the appeal filed by the registered person.

5. We have heard the arguments of the rival parties and carefully perused the orders of the authorities below. The perusal of order of impugned order of the learned Commissioner (Appeals) shows that after considering the arguments of the appellant, relevant record and the judgment reported as 2004 PTD 368 in the case of ai-Hila1 Motors Stores and others the assessing officer concluded that the sales tax liability imposed on the appellant concerning transactions with Mr.

Bashir Ahmed is not sustainable based on presumption or assumptions.

As regards liability created on the basis of annexure-F, the learned Commissioner (Appeal) relying upon the judgment reported as 2023 PTD 467 and examining the Board's circular No.04 of 2019 found that proceeding initiated by the assessing officer is purely on assumption basis as stock value declared in sales tax return has no relevance with stock declare4 in income tax return hence the imposition of tax on account of difference in opening stock and closing stock value lacks merit. We are of the opinion that after dilating upon merits of the case  and findings that the order of the assessing officer was based on presumptions and assumption, the learned Commissioner (Appeals) was not justified to remand back the case to the assessing officer.

Further the perusal of section 45B transpires that the learned Commissioner (Appeals) has acted beyond the scope of his jurisdiction.

The provisions of sub section (3) of section 45B of the Sales Tax Act, 1990 specifically bar the Commissioner (Appeals) from remanding the case for denovo consideration. Sub section (3) of section 45B is reproduced hereunder: -

"(3) In deciding an appeal, the Commissioner of Inland Revenue (Appeals) may make such further inquiry as may be necessary provided that he shall not remand the case for de novo consideration." (Emphasis provided)

6. Bare reading of sub section (3) of section 45B shows that the action of the Commissioner (Appeals) to remand back the case for denovo consideration is against the express provisions of law and cannot be endorsed. A question as to whether the CIR(A) has the power to remand the case to the Assessing Officer for de-novo consideration, came before the Hon'ble Division Bench of the Lahore High Court in the case bearing S.T.R. No. 12/2012 dated 28-10-2013 titled as STA No. 

M/S, commissioner Inland Revenue v. M/5 Supreme Tech

International, in which His lordship Mr. Justice Syed Mansoor Ali Shah has observed as under: -

"We have heard the learned Counsel for the parties and have reviewed Section 45-B of üle Sales Tax Act, 1990. It is trite

"law that the power of remand is inherent in any judicial or quasi-judicial forum; however, it must be sparingly used. is placed on Messrs Karass Paints and Allied

through Director v. Collector of Sales and o@lers 2006 PPD 2482, Messrs Äyenbee

Tax Appellate Tribunal Plead quarters), Karachi and others (2002 PTD 407), Chairman,     WAPDA

others v. Gulbat IQ-tan (1996 scrm 230), Rushpa devi Gupta and another (AIR 2004 SC 39)

K. Patel v. Upenda J. Patal and others (Am light of the üove case law, if we review it appears that the legislative policy is to curb protracted tax litigation the taxpayer from the extended

litigation process. It is for eris reason erat power has been vested in the appellate forurn i.e. Collector (Appeals) to make furüter inquiry as may be necessary to ascertain the fact rather than rernitting the case to a lower forum. Having empowered the Collector (Appeals) to hold a further inquiry at the appellate stage, the law has also prohibited the remand of such a case for de novo consideraåon. It is axiomatic elat avoiding long-drawn litigation under section 45- B (3) of the Act is equally beneficial for the taxpayer and the tæc collector. Beneficial legislation needs to be liberally construed to actualize the object of the statute. We therefore hold that Collector (APPEAL) cannot remand a case for the denovq consideration to the lower forum but instead using the power of further inquiry to conclude the matter before him

STA No. 

Hammad 

In this view of the natter, the question of law raised in the reference is answered in the negative. Disposed of.

7. In view of the above discussed legal position and the judgment of the Hon'ble High Court, it is crystal clear that the provisions of subsection (3) of section 45B of the Sales Tax Act, 1990 specifically bar the

Commissioner to remand the case back to the assessing officer for

Therefore, Commissioner (Appeals) by the assessing officer has acted beyond

upon him under the the order of the

to the extent of remand of the case is to annulment of the case

(TAUQEER Ä SLAM) CHAIRMAN