2021 PLP 130 (PTD)

SYED ARSHAD ALI, J.

This is a Sale Tax Reference filed under Section 47 of Sales Tax Act, 1990 ( hereinafter referred to as the Act of 1990 ) against the judgment and order of learned Custom Central Excise and Sales Tax Appellate Tribunal, Islamabad Bench-II, wherein, certain specific questions of law have been framed for the advice/adjudication of this Court.

2. The learned counsel appearing on behalf of the respondents has raised a preliminary objection to the maintainability of this petition on the ground that under Section 47 of the Act of 1990, as it was in vogue in the year 2007, only the Collectors Sales Tax is/was competent to file a reference under the said Section and any such reference filed by any officer not being the Collector Sales Tax, is incompetent and, thus, this reference is liable to be dismissed. In support of his arguments he has placed reliance on: "Collector of Sales Tax v. Fazal Vegetable Ghee Mills and others" (2009 PTD 1112)"

3. On the other hand, the learned counsel appearing on behalf of the Revenue Department, while relying on the unreported judgment of the august Supreme Court of Pakistan in Civil Appeals Nos.1172 and 1173 of 2012, has argued that since this reference was signed by the learned counsel who was authorized by the competent authority to file the reference, therefore, non-signing of the reference by the Collector himself, is only an irregularity and, thus, is not fatal to the filing of the reference.

4. Heard. Brief facts of the case, relevant to the present controversy, are that the respondent is a limited company registered under the Companies laws of Pakistan, which owns and operatesa cement manufacturing plant at Nizampur, Khyber Pakhtunkhwa. For the relevant period, the respondent company was enjoying exemption from Sales Tax in terms of SRO 561(I)/94 dated 09.06.1994.

5. On 17.04.2003, the petitioner department had served upon the respondents a show-cause notice, whereby, the respondent was called upon to show-cause, within ten days of the date of dispatch of the said notice, as to why it should not pay the Sales Tax alleged evaded by the respondent, which was indicated in the show-cause notice along with additional tax under Section 34 of the Sales Tax Act, besides, imposition of penalty Section 33(2)(CC) of the Sales Tax Act.

6. The Adjudicating Authority, through Order-in-Original # 41/2004 dated 09.06.2004 had adjudged the liabilities of the respondent/company relating to payment of Sales Tax, Additional Tax and penalty.

7. The said order of Adjudicating Authority was challenged before the Customs Central Excise and Sales Tax Tribunal Islamabad, through Appeal No.43/ST/IB/2006. The learned Appellate Tribunal vide impugned judgment dated 13.01.2007 has set aside the order of the Adjudicating Authority.

8. Since, the respondent has raised a preliminary objection to the maintainability of this Appeal on the ground mentioned above, therefore, we would proceed to decide the maintainability of the petition.

9. In order to, effectively comprehend the issue, it is apt, at this juncture to refer to, and reproduce Section 47 and its legislative history. Finance Act, 1990: .. ..

47. Reference to High Court. (1) Within sixty days of the date on which an order of the Appellate Tribunal is communicated to him under subsection (5) of Section 46, the aggrieved person or the Collector may present an application in the prescribed form and where the application is by the aggrieved person, it should be accompanied by a fees of one hundred rupees to the Appellate Tribunal requiring it to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall draw up a statement of the case and refer it to the High Court. (2) The statement to the High Court shall set out the facts, the determination of the Appellate Tribunal and the question of law which arises out of the case. (3) (4) (5) (6) (7) (8) Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to an application made to the High Court under subsection (1). Finance Act, 1997: "

47. Appeal to the High Court. (1) An appeal shall lie to the High Court in respect of any question of law arising out of an order under section 46. (2) The appeal under this Section shall be filed within sixty days of the date upon which the aggrieved person or the Collector is served with notice of an order under Section

46. Finance Act, 2005:

47. Reference to High Court.

(1) Within ninety days of the communication of the order of the Appellate Tribunal under subsection (5) of Section 46, the aggrieved person or any officer of Sales Tax not below the rank of a Deputy Collector may prefer an application in the prescribed form along with a statement of the case to the High Court, stating any question of law arising out of such order. Finance Act, 2006: (a) In subsection (1), for the words "Deputy Collector", the words and commas "an Additional Collector, authorized by the Collector," shall be inserted; (b) In subsection (7), in the proviso, after the word "application" the words "by an Additional Collector authorized" shall be inserted; (c) In subsection (10), after the word "the" the words "Additional Collector authorized by the" shall be inserted; and (d) after subsection (10), the following new subsection shall be added, namely:- "(11) Notwithstanding anything contained in any provision of this Act, where any reference or appeal was filed with the approval of Collector by the officer of lower rank than the Collector, and the reference or appeal is pending before an appellate forum or the Court, such reference or appeal shall always be deemed to have been so filed by the Collector."

10. This reference was filed on 17.04.2007 and signed by the Deputy Collector Head Quarter, Regional Taxation Office Peshawar, through Ms. Farhat Zafar, learned advocate Supreme Court of Pakistan. The Wakalatnama available on the file in favour of the learned advocate is also signed by the same Deputy Collector. Hence, Section 47 of the Sales Tax Act, 1990, as in vogue in the year 2007, would be relevant for resolution of the present dispute. The said provision, as it was applicable after the promulgation of the Finance Act, 2006, is reproduced as under: "Within ninety days of the communication of the order of the Appellate Tribunal under subsection (5) of Section 46, the aggrieved person, or any officer of the Sales Tax not below the rank of Additional Collector, authorized by the Collector may prefer a application in the prescribed form along with the statement of the case to the High Court, stating any question of law arising out of such order". Subsection (11) "Notwithstanding anything contained in any provision of this Act, where any reference or appeal was filed with the approval of Collector by the officer of lower rank than the Collector, and the reference or appeal is pending before an appellate forum or the Court, such reference or appeal shall always be deemed to have been so filed by the Collector." Underline is for emphasis

11. The close perusal of the aforesaid provision of law being couched in negative language only authorized the Additional Collector, who was supposed to be further authorized by the Collector, could file a reference under Section 47 of the Act of 1990. Thus, the question arises as to whether the Deputy Collector at the relevant time could file a reference under Section 47 of the Act, against the judgment of the Tribunal and if not, what are the consequences?

12. Relevant to the adjudication and collection of sales tax for a particular area, the Act of 1990 has classified various ranks of officials for performance of duties/act. Section 30 of the Act provides the following classes/rank of the officer of the sales tax. Appointment of Officers.

For the purposes of this Act, the Board may, by notification in the official Gazette, appoint in relation to any area, any case or class of cases specified in the notification, any person to be- (a) A Collector of Sales Tax; (b) A Collector of Sales Tax [(Appeals)]; (c) An Additional Collector of Sales Tax; (d) A Deputy Collector of Sales Tax; (e) An Assistant Collector of Sales Tax; (f) A Superintendant of Sales Tax; (ff) A Senior Auditor of Sales Tax; (g) An officer of sales tax with any other designation. The aforesaid legislative history relating to the authority of the officer of the sales tax to file a reference and different classes of the officers of the Petitioner/department manifests the intention of the law maker regarding the rank of the officer to file a reference in terms of Section 47 of the Act. The words occurring in section 47 of the Act of 1990 "not below the rank of Additional Collector" being couched in the negative language further manifests the intention of the legislature being mandatory and not mere directory. In this regard we can borrow wisdom from the law laid down by the Apex Court in the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599 wherein it is held, "If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings."

13. In reference to filing of the appeal under section 196 of the Customs Act (IV of 1969) which at the relevant period has envisaged the filing of appeal by Collector to the High Court, the apex Court in the case of Al-Faiz Industries (Pvt.) Limited [2006 SCMR 129] where the appeal before the High Court was filed by a Director of Customs instead of Collector of Customs, has held the same incompetent in the following words: "Another argument raised on behalf of the petitioner was that the Collector of Customs (Appraisement) or the Collector of Customs (Adjudication) or the Director performed more or less the same functions and duties in coordination and harmony with each other as they represented different sections or organs of the entire Customs Department and duties and functions to be performed by the Officers of one section or organ could legally be performed by the officers of other section or organ. It was further submitted that the Director performed various functions and duties of Collector and referred to notification whereby the Director as well as an officer of the Director was vested with the power to perform functions and discharge duties of Collector of Customs and as Officer of Customs, respectively. This Argument is also without any substance for the purpose of deciding the issue involved in these petitions. Irrespective of the fact whether the Director performs some functions and discharges duties of the Collector, the fact remains that he would not become or would not be deemed to be Collector even if he exercised certain powers of Collector of Customs. Even otherwise the above grounds are not relevant to the issue or dispute arising in these petitions. It is pertinent to note that section 196 has specifically authorized the Collector to file appeals in the High Court on behalf of the customs Department. It is well settled and established principle of law that when the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred".

14. Indeed, it has remained the consistent view of the apex Court that when an appeal under any statute could be filed only by the authority or the officer designated or prescribed for the purpose by the said Statute and such filing of an appeal could not be undertaken by other officer or authority. In the case of Fazal Ahmad Jut [2018 SCMR 1005], the apex Court while hearing a matter relating to filing of appeal under Section 32 of the National Accountability Ordinance (XVIII of 1999) by an officer other than the one prescribed by the Statute in para 3 of the said judgment had held; "It is quite evident from a bare reading of Section 32(a) of the National Accountability Ordinance, 1999 as well as from the provisions of Section 8(d) of the National Accountability Ordinance, 1999 that at a time when there is not permanent Chairman of the National Accountability Bureau, no other officer of the Bureau can perform the functions or excise the powers of the Chairman and at a time when there is no permanent Prosecutor-General Accountability holding the said office no other officer of the Bureau can be required by the Chairman to perform the functions or exercise the powers of the Prosecutor-General Accountability and this was so held by this Court in the cases of Bank of Punjab and another v. Hair Steel Industries (Pvt.) Limited and others [PLD 2010 SC 1109] and Al-Jehad Trust and another v. Federation of Pakistan and others [PLD 2011 SC 811]. It had clearly been laid down by this Court in the case of Director Directorate-General of Intelligence and Investigation and others v. Messrs Al-Fait Industries (Pvt.) Limited and others [2006 SCMR 129] that an appeal can be filed only by the authority or the officer designated or prescribed for the purpose by a statute and such filing of an appeal cannot be undertaken by any other officer or authority. It is trite that when the law requires a thing to be done in a particular manner then that thing must be done in that manner alone or not at all. In this view of the matter we have found the High Court of Sindh, Karachi to be entirely justified in holding that the appeals filed by the National Accountability Bureau before it in the present cases had not been competently filed."

15. The judgment referred by the learned counsel for the petitioner, passed by the apex Court in C.As. Nos.1172 and 1173 of 2012 dated 05.10.2016, is distinguishable from the present case. In this regard, we deem it apt to reproduce para 4 of the said judgment herein below:- "With the assistance of learned counsel for the parties, we have scanned the entire record. From the perusal of record, it appears that the reference petitions were filed by the competent authority i.e. the Collector of Customs/Collector Sales Tax/Commissioner Inland Revenue though these were not signed by it but the same were signed by the learned counsel appearing for the appellants who were authorized by the competent authority in this behalf. We are of the view that the said defect is curable and instead of non-suiting the appellants, the learned High Court should have decided the matters on merit and/or asked to cure the defect by signing the Reference Petitions. In the case of Shafiq Metal Works v. Bank of Bahawalpur Ltd. [PLD 1973 Note 33 (Lahore)], it was held that "there is no specific provision in the C.P.C. under which a plaint, as such, must be signed by a person holding a power of Attorney and it cannot be said by any stretch of imagination that such a plaint which is not so signed can be deemed to be an absolutely void plaint or a nullity. It is simply an irregularity". In the case of Fazal-ur-Rehman v. Begum Sughra Haq [2000 MLD 562], it was held that "the provisions contained in O.VI, Rules 14 and 15, C.P.C. with regard to signing and verification of plaint were mere matter of procedure and if a plaint was not properly signed or verified, but was admitted and entered in the register of suits, it would not cease to be a plaint and the suit could not be said not to have been instituted merely because of existence of mere defects or irregularities in the matter of signing and verification of the plaint". It appears from the facts of the case that said appeal was filed on the direction of the Collector Customs (Competent Authority) but was only signed by the learned Advocate representing the Department, whereas, in the present case there is no document available on the record that this reference was filed either by Additional Collector or on the direction of the Collector Sales Tax.

16. In view of the above, after perusing the tenor of Section 47 of the Act and keeping in view the law laid down by the apex Court in the cases of "Al-Faiz Industries (Pvt.) Limited [2006 SCMR 129] and Fazal Ahmad Jut [2018 SCMR 1005], we have reached at the inescapable conclusion that the Deputy Collector of Customs at the time of filing this appeal had no authority to file the same. Hence, this reference being incompetently filed is accordingly dismissed. Copy of this judgment be sent to the Learned Tribunal for information. KMZ/371/P Order accordingly.