1971 PLP 134 (SCMR)

M. R. KHAN, J.‑The petitioners were assessed to sales tax by Mr. Aga Sultan Ahmad, Examining Officer, Circle `A' Dacca, Section III. They questioned the competence of the said Examin ing Officer to assess sales tax. A reference was, accordingly, made to the High Court under section 17 of the Sales Tax Act, 1951. The point referred for the opinion of the High Court was as follows :‑ "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that a person appointed to be an Examining Officer under the Income‑tax Act, 1922 is‑ also a Sales‑tax Officer under section 5 (1) of the Sales Tax Act, 1951." This question was answered by the High Court in the affirmative. The petitioners seek special leave to appeal against the decision of the High Court. The Sales Tax Act, 1951, which was enacted on the 20th April 1951, was brought into force on the 1st of July 1951. Sub section (1) of section 5 of the Act prescribes the authorities by whom sales tax may be levied. The said subsection runs thus : "

5. Tax Authorities.‑(1) Every Commissioner of Income tax, Appellate Assistant Commissioner of Income‑tax, Inspecting Assistant Commissioner of Income‑tax and Income‑tax Officer shall exercise the powers of a Commissioner of Sales Tax, Appellate Assistant Commissioner of Sales‑tax, Inspecting Assistant Commissioner of Sales Tax and Sales Tax Officer, respectively, under this Act and in relation to the same area and cases as he exercises under the Income‑tax Act, 1922." It will be noticed that Income‑tax Officer has been expressly mentioned in subsection (1) of section 5 as one of the tax authorities. At the time when the Sales Tax Act was brought into force, the definition of Income‑tax Officer under section 2 (7) of the Income‑tax Act, 1922 was as follows :‑ "2 (7) `Income‑tax Officer' means a person appointed under section 5." At the time, i.e. when the Sales Tax Act came into force on the 1st of July 1951, the Income‑tax Officer was expressly men tioned in section 5 of the Income‑tax Act as one of the authorities for assessing income‑tax. By then, the post of Examining Officer was not in existence. The "Examining Officer" was defined for the first time by the amending Income‑tax Act XXII of 1958. By the said amending Act, clause (6‑AAA) defining "Examining Officer" was inserted in section 2 of the Income‑tax Act and it reads thus : "(6‑AAA) `Examining Officer' means a person appointed to be an Examining Officer under, section 5." By the same amending Income‑tax Act, Examining Officers were included in section 5 of the Income‑tax Act. Up to that stage, the Examining Officers were quite separate from Income‑tax Officers, but in 1959, by the Ordinance No. II of 1959, the defini tion of "Income‑tax Officer" was further amended so as to include Examining Officer, besides Assistant Income‑tax Officer. The definition of Income‑tax Officer, as modified in 1959 runs thus : "2 (7) `Income‑tax Officer' means a person appointed to be an Income‑tax Officer under section 5 and includes a person appointed to be an Assistant Income‑tax Officer and an Examin ing Officer." Mr. Rafique‑ul‑Huq, learned counsel for the petitioners submits that the Sales Tax Act contemplates only those persons as Income‑tax Officers who come within the definition of "Income‑tax Officer" as it stood at the time of the coming into force of the Sales Tax Act and that the definition of "Income‑tax Officer", as modified by the Ordinance No. II of 1959, cannot be resorted to for the purposes of the Sales Tax Act. In other words, the conten tion of the learned counsel is that when the Examining Officer was not an Income‑tax Officer at the time of the coming into force of the Sales Tax Act on the 1st of July 1951, the enlargement of the definition of "Income tax Officer" in section 2 (7) of the Income‑tax Act by including therein "Examining Officer" cannot be resorted to for the purpose of enabling the Examining Officer as well to exercise the powers of a taxing authority under the Sales Tax Act. This contention was raised before the High Court, but this was rightly rejected by the learned Judges of that Court. The word "Income‑tax Officer" as mentioned in section 5 of the Sales Tax Act means the Income‑tax Officer for the time being under the Income‑tax Act, 1922. Section 5 of the Sales Tax Act cannot be construed as implying only the Income‑tax Officer as stood defined in the Income‑tax Act in 1951. The learned counsel has referred to subsection (5‑A) of section 5 of the Income‑tax Act and contended that Examining Officers are to perform such functions in the execution of the Income‑tax Act as may be assigned to them by the Income‑tax Authority under whom they are appointed to work. He wants to conclude from this that the Examining Officers can only perform functions that are assigned to them only under the Income‑tax Act, but they have not the competence, like the Income‑tax Officer, to impose sales tax also. This argument also is of no avail. It will appear from subsection (5) of section 5 of the Income‑tax Act that the Commissioner of Income‑tax can assign areas or cases to different Income‑tax Officers. As Income‑tax Officers do include Examining Officers, the Examining Officers as well can be assigned by the Commissioner areas or cases just as he can do in the case of Income‑tax Officers. In fact, the Commissioner, in the instant case, issued Sales Tax Order No. 2/2‑P‑13/62‑63, dated the 26th September 1952, authorising Mr. Aga Sultan Ahmad, Examining Officer, Circle `A', Dacca, Section III, to perform the function of an Income‑tax Officer and to exercise the powers as such in respect of the said Income‑tax circle. Thus, there is no substance in the contention of the learned counsel as regards the alleged incompetency of the Examining Officer to assess sales tax. The petition is dismissed. Leave refused.