PLYFO INDUSTRIES (PVT.) LTD., GUJRANWALA VS ASSISTANT COLLECTOR (AUDIT-I), SALES TAX AND FEDERAL EXCISE, GUJJRANWALA
2011 P T D 2795
2011 P T D 2795
[Lahore High Court]
Before Muhammad Farrukh Irfan Khan, J
Messrs PLYFO INDUSTRIES (PVT.) LTD., GUJRANWALA through Director
Versus
ASSISTANT COLLECTOR (AUDIT-I), SALES TAX AND FEDERAL EXCISE, GUJJRANWALA and 2 others
Writ Petition No.5030 of 2007, decided on 30/08/2010.
Sales Tax Act (VII of 1990)---
----Ss. 30, 31, 32 & 45---Constitution of Pakistan, Art.199---Constitutional petition---Jurisdiction of Collector to adjudicate in the matter---Collector, Sales Tax and Federal Excise, in pursuance of show-cause notice, vide impugned order decided the case and held the petitioner liable to pay the Sales Tax---Contention of the petitioner was that assumption of jurisdiction by the Additional Collector under S.45 of Sales Tax, 1990 by the Collector and passing impugned order and directing the petitioner to file appeal against impugned order before Customs, Excise and Sales Tax and Appellate Tribunal, was void, illegal, without lawful authority and of no legal effect---Validity---Under provisions of S.45 of Sales Tax Act, 1990, adjudication had been assigned to the Officers of the Sales Tax Department upto the rank of Additional Collector---Appeal against the order of the Adjudication passed by the Additional Collector and other officers below in rank to him had been provided to the Collector of Sales Tax (Appeals) in terms of S.45-B(1) of Sales Tax Act, 1990---Powers of adjudication granted under S.45 of Sales Tax Act, 1990 to the Additional Collector had not been delegated to the Collectors of Sales Tax---Collector (Appeals) was functioning as appellate forum and reviewing authority against the order passed by the Additional Collector, Deputy Collector, or Assistant Collector under S.45-A of the Sales Tax Act, 1990---Remedy against the order of the Collector of Sales Tax (Appeals) had been provided to the Appellate Tribunal---Impugned order was coram non judice and being not sustainable under the law was set aside; and case was remanded to Additional Collector to adjudicate upon the matter afresh strictly in accordance with law.
Mian Abdul Ghaffar for Petitioner.
Izhar ul Haq Sheikh for Respondents.
ORDER
MUHAMMAD FARRUKH IRFAN KHAN, J.---This writ petition arises out of a show-cause notice dated 11-7-2003 to the petitioner which was issued on the basis of an audit report dated 21-4-2003 creating a liability against the petitioner amounting to Rs. 1,02,90,297. The show-cause notice was issued by the Collector of Customs Central Excise and Sales Tax (Adjudication), Lahore.
2. That the respondent No. 2 in pursuance of the show-cause notice dated 11-7-2003 fixed the hearing in the matter on 5-9-2006. Although, hearing was attended by the petitioner but respondent No.2 was informed that he has no jurisdiction to adjudicate in the matter as according to the amendment in the Sales Tax Act, 1990 during the year 2005, section 45 of the Sales Tax Act has vested the jurisdiction in the Additional Collector. No further hearing was fixed however, respondent No.2 vide order dated 30-12-2006 decided this case and held the petitioner liable to pay the sales tax through the impugned order dated 30-12-2006.
3. It is the case of the petitioner that assuming the jurisdiction of the Additional Collector under section 45 of the Sales Tax Act, 1990 andpassing the order dated 30-12-2006 by the respondent No.2 directing the petitioner to file appeal against the said order before the learned Customs, Excise and Sales Tax Appellate Tribunal on the part of the respondent No.2 is void, illegal and without lawful authority and of no legal effect.
4. On the other hand, learned counsel for respondents contends that the petitioner did not object to the jurisdiction of the Collector while responding to the show-cause notice as such this objection cannot be taken at the later stage; that section 31 of the Sales Tax Act provides that the officer of sales tax appointed under section 30 shall exercise such powers and discharge such duties as are conferred or imposed upon him under this Act; that he shall also be competent to exercise all powers and discharge all duties conferred upon any officer subordinate to him; that the respondent No.2 assumed the powers of Additional Collector and adjudicated upon the matter by stepping into the shoes of the Additional Collector respondent No.1 and appeal can be preferred against such order.
5. I have heard the argument? of the learned counsel for the parties and perused the record. Section 45 of the Sales Tax Act, 1990 prior to the amendments provided by the Finance Act, 2010 required as follows:--
"45. Power of Adjudication. --- In cases involving assessment of tax, charging of (default surcharge),, imposition of penalty and recovery of amount erroneously refunded (or any other contravention) under this Act or the rules made thereunder, the jurisdiction and powers of adjudication of the Sales Tax Officers shall be as follows:--'
| (i) Additional Collector | Cases falling under subsection (2) of section 11 and section 36 without any restriction as to the amount of tax involved or the amount erroneously refunded |
| (ii) Deputy Collector | (a) Cases falling under subsection (1) of section 11. |
| | (b) Cases falling under subsection (2) of section 11 and section 36 provided that the amount of tax involved or the amount erroneously refunded exceeds one million rupees, but does not exceed.two and a half million rupees. |
| (iii) Assistant Collector | Cases falling under subsection (2) of section 11 and section 36 provided that the amount of tax involved or the amount erroneously refunded exceeds ten thousand rupees, but does not exceed one million rupees. |
| (iv) Superintendent | Cases falling under subsection (2) of section 11 and section 36 provided that the amount of tax involved or the amount erroneously refunded does not exceeds ten thousand rupees. |
| (v) An officer of sales tax with any other designation. | Such cases as may be notified by the Board. |
6. A bare perusal of the said section shows that the work of adjudication has been assigned to the officers of the sales tax department upto the rank of the Additional Collector. Similarly, the appeal against the order of the Adjudication passed by the Additional Collector and other officer below in rank to him has been provided to the Collector of Sales Tax Appeal in terms of section 45-B(1) of the Sales Tax Act, 1990 which provides as follows:
"Any person, other than the Sales Tax Department, aggrieved by any decision or order passed under sections 10, 11, 25, 36 or 66 by an officer of Inland Revenue may, within thirty days of the date of receipt of such decision or order, prefer appeal to the Commissioner Inland Revenue (Appeals):
Provided that an appeal preferred after the expiry of thirty days may be admitted by the Commissioner Inland Revenue (Appeals) if he is satisfied that the appellant has sufficient cause for not preferring the appeal within the specified period:
Provided further that the appeal shall be accompanied by a fee of one thousand rupees to be paid in such manner as the Board may prescribe.
7. Similarly, appeal against the order of the Collector under section 45-A of Collector of Sales Tax (Appeals) under section 45-B and any order passed by the Board or Collector under section 435-A is to be preferred before the learned Customs, Central Excise and Sales Tax Appellate Tribunal under section 46(1) of the Sales Tax Act 1990 which reads as follows:--
"Any person including an officer of (Inland Revenue) not below the rank of an Additional Commissioner, aggrieved by any order passed by
(a)? the Commissioner Inland Revenue (Appeals) under section 45-B,
(b)? the Commissioner Inland Revenue through adjudication or under any of the provisions of this Act or rules made thereunder,
(c)? The Board under section 45-A,
May, within sixty days of the receipt of such decision or order, prefer appeal to the Appellate Tribunal.
8. Nowhere in the Sales Tax Act, 1990 prior to amendment by Finance Act, 2010 the powers of adjudication granted under section 45 of the Sales Tax Act to the Additional Collector have been delegated to the Collectorate of Sales Tax. A perusal of the impugned order dated 30-12-2006 shows that any person including the Sales Tax department aggrieved by this order may appeal against it within 60 days from the date of its receipt to the Customs, Federal Excise and Sales Tax, Appellate Tribunal, situated at 2nd floor, Custom House, Lahore as per provisions of section 46 of the Sales Tax Act, 1990. Any such appeal should be addressed to the Assistant Registrar of the Tribunal accompanied by a challan showing deposit of appeal fee of Rs.1,000 in fax head 0220000, in any designated branch of National Bank of Pakistan or Government treasury. The appeal should also be accompanied by this order-in-original bearing court fee of paisa 50 prescribed under Schedule 1, item 6 of the Court Fee Act, 1870. The appeal should be prepared in booklet form along with three additional copies for submission to the Tribunal and one copy should also be sent to this office for information and record.
9. Therefore, keeping in view the above provisions of law it is clear that the Collector has not been empowered to exercise powers of adjudication which have been vested in officers of the lower ranks uptil the rank of the Additional Collector. This has purposely been done by the legislature. Collector (Appeals) is functioning as appellate forum and reviewing authority against the order passed by the Additional Collector, Deputy Collector, or Assistant Collector under section 45-A of the Sales Tax Act. Remedy against the order of the Collector of Sales Tax (Appeals) has been provided to the Appellate Tribunal. In view of the above discussion the impugned order dated 30-12-2006 is corum non judice and is not sustainable under law as such, hence, the same is set aside. Case is remanded to the learned Additional Collector concerned to adjudicate upon it afresh strictly in accordance with law.
Disposed of.
H.B.T./P-10/L????????????????????????????????????????????????????????????????????????? Case remanded.