P L D 1971 Dacca 179 (PLP)

A. S. CHOWDHURY, J.‑In this case the Income‑tax Appellate Tribunal, Dacca Bench, Dacca, has referred the following question for our opinion :‑ "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 ?" In this case six applications were filed by the assessee concerned challenging the order passed by the Tribunal in Sales Tax Appeal No. 140 of 1964‑65 on 25‑1‑

68. The decision in this appeal was followed by 5 other cases and the point of law involved being the same, they all applied for a reference to this Court. The Tribunal having been satisfied that a question of law arises out of the said orders, referred the question quoted at the outset for our opinion. The question raised by the assessee is that the Sales Tax Act, 1951 visualised an Income‑tax Officer under the Income‑tax Act as it was then in force to be a Sales Tax Officer. By a subsequent amendment of the Income‑tax Act, Examining Officers were also included in the definition of the Income‑tax Officer as given in the Income‑tax Act. It is therefore, argued that Examining Officers were not entitled to make the assessments under reference. Section 5(l) of the Sales Tax Act reads as follows :‑‑ "5(2). 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, therefore, be seen that an Income‑tax Officer and others named in subsection (1) of section 5 just quoted above is entitled to exercise the powers of a Sales Tax Officer. By an amendment as effected in 1963 in the Income‑tax Act an Examining Officer was also made an Income‑tax Officer. Section 2(7) of the Income -tax Act as amended reads as follows :‑ "(7) "Income‑tax Officer" means a person appointed to be an Income‑tax Officer under section 5 and includes a person appointed to be a Special Officer, an Assistant Income‑tax Officer and an Examining Officer." On behalf of the Revenue, it is submitted that since an Examining Officer is now included in the expression "Income‑tax Officer" an Examining Officer was also entitled to make the assessment. Learned Advocate for the assessee on the other hand asserts that such a view is not correct and claims that the Legislature gave powers of a Sales Tax Officer to an Income‑tax Officer. It is further urged on behalf of the assessee that it cannot be held that the Legislature intended that the function assigned to an Income tax Officer by a separate Act, namely, Sales Tax Act, can yet be discharged by another officer called Examining Officer who has now been included in the definition of Income‑tax Officer. The learned Advocate for the assessee also mentions that this particular Examining Officer was given powers under section 5(5) of the Income‑tax Act. In all these cases the proceedings commenced after coming into force of the Finance Act, 1963 which enlarged the definition of Income‑tax Officer to include an Examining Officer within its ambit and the assessments were made thereafter. Now the question is if an Examining Officer can act as Income‑tax Officer in order to perform the duties of a Sales Tax Officer. We are clearly of the view that the assessment is to be made in accordance with the law in force during the period of assessment, and, in all the assessments under reference, an Examining Officer was, by law then prevailing, included in the definition of Income‑tax Officer, and, therefore, function assigned to an Income‑tax Officer could also be discharged by an Examining Officer. It has been argued on behalf of the assessee as already noticed, that at the time when the Sales Tax Act was passed the Examining Officer was not included within the expression "Income‑tax Officer" and subsequent inclusion was therefore of no avail to the Revenue. We are unable to accept this contention. The Legislature passed Finance Act, 1963 and with its passing, the amendment became a part of the Income‑tax Act. It was known to the Legislature that an Income‑tax Officer discharges the function of a Sales Tax Officer also under the Sales Tax Act. If the Legislature had a contrary intention at the time of effecting the amendment, it would have made it clear that despite enlarge ment of the definition, an Examining officer would be debarred from exercising the function of an Income‑tax Officer under the Sales Tax Act. In the absence of such an express declaration the intention of the Legislature the only course left is to read both the Income‑tax Act and the Sales Tax Act, and, on a perusal thereof, it is clear that an Examining Officer is also entitled to perform the duties of an Income‑tax Officer one of which is to act as a Sales Tax Officer. The question referred to us is therefore answered in the affirmative. The parties are left to bear their own costs. NRUL ISLAM, J.‑I agree. Question answered in the affirmative.