2010 PLP 352 (PTD)

MUHAMMAD FARRUKH MAHMUD, J.

This petition seeking leave to appeal is directed against judgment, dated 14-3-2007 handed down by learned Judge in Chambers of Lahore High Court, Lahore whereby Writ Petition No. 6846 of 2006 filed by the respondent was allowed and order, dated 10-6-2006 recorded by Collector, Collectorate of Sales Tax and Federal Excise Sales Tax, Lahore was set aside.

2. Respondent is registered firm with Collectorate of Sales Tax and Federal Excise, Lahore as a wholesaler. The respondent's name was put on negative list, by the Collector which was followed by audit for the period from February, 2001 to August, 2001. After the audit report, liability of Rs.601,811 was created against the respondent which was paid. Resultantly, the name of the respondent was excluded from the negative list. The name of respondent's firm was put on negative list, for the second time and again an audit was conducted, which resulted in creation of liability of Rs.3,912,041 for the period from February, 2001 to June, 2002, which included the period of the first audit. After the audit report, show-cause notice was issued and finally an Order-in-Original was passed on 20-5-2005 by the Adjudicating Officer i.e. Deputy Collector (Adjudication), which resulted into creation of another demand of Rs.1,033,929, which was allegedly paid by the respondent, and its name was removed from the negative list.

3. The bone of contention is order, dated 10-6-2006 purported to have been issued under section 45-A of Sales Tax Act, 1990, by the Collector, whereby the Order-in-Original was reopened and Deputy Collector was directed to pass fresh order after completion of necessary legal formalities, and providing opportunity of hearing to both the parties

4. The reopening order was challenged by the respondent through Writ Petition which was allowed, hence this petition.

5. The learned counsel for the petitioners has argued that the Collector exercised his jurisdiction under section 45-A of the Sales Tax Act and it could not be said that the order whereby the reopening was directed, was without lawful authority; that the Collector under section 45-A of the Act could call for and examine the record; that the findings recorded in the impugned judgment were not in accordance with law; and that the learned Judge has wrongly assumed the jurisdiction. Conversely it has been argued that at the relevant time the power to call for record lay with the Collector or Collector (Adjudication); that according to subsection (4) of section 45-A of the Act the Collector or Collector (Adjudication) could exercise its power to re-open the case in respect to any case decided by an officer subordinate to them, in exercise of any of the powers of the Board specified in subsection (1) of section 45-A of the Act; that the order-in-original was passed by Deputy Collector (Adjudication) who was not subordinate to the Collector, therefore, the Collector had no jurisdiction to re-open the case; that the order, dated 10-6-2006 was passed by the Collector without hearing the respondent; and that the impugned judgment was perfectly in accordance with the law.

6. We have heard the learned counsel for the parties and perused the record of the case. At the time of the passage of the impugned order, dated 10-6-2006 the powers of the Board under section 45-A to call for record could be exercised by Collector or Collector (Adjudication). Subsection (4) of section 45-A authorized the Collector or Collector (Adjudication) to exercise powers in subsection (1) of section 45-A against the decisions by an officer subordinate to them respectively. The subsection (4) of the section 45-A which is being reproduced is as under:-- "(4) The Collector or Collector (Adjudication), may, in respect of any case decided by an officer subordinate to him, exercise all or any of the powers of the Board specified in subsection (1)." Undeniably the Order-in-Original, dated 20-5-2005 was passed by Deputy Collector (Adjudication), who was not subordinate to the Collector. Furthermore the order-in-original was not challenged in appeal by an officer of the department. Under section 45-A powers of the Board (Collector or Collector Adjudication) to call for record and subsection 4 remained in force till 29th June, 2005, whereafter these were amended by the Finance Act, 2005, (VII of the 2005). It was after the above noted amendment under subsection (4) that the powers were given to the Collector to call for and examine record of any proceedings under the Act, suo motu. However the amendments incorporated through Act, 7 of the 2005 are prospective in nature and do not apply to the instant case.

7. In the above noted circumstances we do not find any irregularity or any infirmity in the impugned judgment. This petition is dismissed. Leave is refused. M.H./F-21/SC Petition dismissed.