2023 PLP (Trib (PTD)

ZAHID SIKANDAR, JUDICIAL MEMBER.

The titled appeal preferred at the behest of the registered person is directed against intimation letter dated 7-11-2018 whereby the Commissioner Inland Revenue posted/nominated certain officers/staff of Inland Revenue department at the premises of M/s. Punjab Beverages (Pvt.) Ltd. under section 408 of Sales Tax Act, 1990 for monitoring of production, supplies and stocks.

2. Facts in brief are that due to identification of certain discrepancies/observations in the tax profile of the appellant, the Chief Commissioner Regional Tax Office, Faisalabad vide letter dated 16.10.2018 proposed the Federal Board of Revenue to post officers/staff at the premises of M/s. Punjab Beverages (Pvt.) Ltd. under section 40B of the Act. The Board vide C.No.1(77)STM/2018/129980-R dated 29.10.2018 acceded to the proposal of the RTO for posting of officers/staff. Accordingly, the Commissioner Inland Revenue posted/nominated certain officers/staff at the premises of the appellant company for period of 30 days against which the appellant has come up in this appeal before the ATIR.

3. It is the case of the appellant that there are certain pm-requisites for resorting to the provision of Section 40B of STA, 1990 which have not been fulfilled before passing the impugned order. The learned counsel maintained that it is the authority of the Board to appoint and nominate persons and the Commissioner Inland Revenue has travelled beyond his jurisdiction by nominating the officers/staff. Further, no restrictions or conditions were envisaged in the impugned order as provided in section 40B. Conversely, the learned DR supported the impugned order having been passed in accordance with law and submits that there is no legal infirmity in the impugned order.

4. We have heard the contentions of the learned representatives of the rival parties and have also perused the impugned order with their able assistance.

5. Before we touch upon the merits of the case it is expedient to find out as to whether appeal lies in the present case before the ATIR under section 46 of STA, 1990 which reads as under:

46. Appeals to Appellate Tribunal.- [(1) Any person including an officer of 602 [Inland Revenue] (not below the rank of an [Additional Commissioner], aggrieved by any order passed by- (a) the [Commissioner Inland Revenue] (Appeals) under section 45B, (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 45A, may, within sixty days of the receipt of such decision or order, prefer appeal to the Appellate Tribunal.]

6. The provisions of section 46 STA, 1990 are clear that any person aggrieved by the order passed by the CIR(A) under section 45B, CIR through adjudication or under any of the provisions of the Act can file appeal before the ATIR. Section 40B only authorizes the Board to initiate action against any registered person. In the present case the Board on the recommendation of Chief Commissioner Faisalabad allowed initiation of action under section 40B against the appellant company and the CIR merely intimated the appellant about the posting of the officers to implement the order/authorization of the Board for initiation of action under section 40B at the premises of the appellant for the purpose of monitoring. The titled appeal has been preferred against the intimation/posting of the officers (IR) which is a subsequent action/consequence in compliance of the authorization of the Board for initiation of action under section 40B. Section 46 nowhere provides appeal against an order or action initiated by the Board under section 40B. It is important to state that subsections (a) and (b) of section 46 deals with the appeal against the order passed by the CIR(A) and CIR whereas subsection (c) of section 46 provides appeal against order passed by the Board under section 45A. The legislature has separately provided appeal against order passed by the CIR(A), CIR and the order passed by the Board in same section and no such appeal has been provided against action/order by the Board under section 40B. The case of the appellant does not fall under section 46(1)(b) as the impugned intimation letter cannot be considered as order passed by the CIR for the purpose of filing appeal under section 46 rather it is mere implementation of the original authorization of posting of officers by the Board at the premises of the appellant under section 40B.

7. It is reiterated at the cost of repetition that it is only the Board which may post officers under section 40B for the purpose of monitoring of sales, stock. The record evidenced that the Board rightly or wrongly allowed posting of officers at the premises of the appellant company and the impugned nomination of the officers by the Commissioner Inland Revenue is just a consequence of the authorization/order by the Board and is not an order by the CIR for the purpose of filing appeal under section 46 of STA, 1990. Original order/authorization/action under section 40B is to be considered to have been passed by the Board which has not been challenged by the appellant under the relevant provisions of law before any competent court of law rather the appellant has assailed the intimation of nomination of the officers by the CIR. The Commissioner Inland Revenue possesses no power with regards to any action to be taken against a registered person under section 40B and all the powers vest with the Board and the CIR being a subordinate functionary is bound to obey the orders of the Board and in the instant case the impugned intimation letter is nothing more than an implementation of the authorization/order by the Board and not an order passed by the CIR himself. Under the provisions of section 46, no appeal lies against any such intimation/nomination of the officers by the CIR.

8. Hence, the titled appeal is not maintainable before the ATIR and is hereby dismissed. Since the appeal has been decided/dismissed by us on legal ground therefore the merits of the case need not be adjudicated. SA/28/Tax (Trib.) Appeal dismissed.