2009 PLP 164 (PTD)

TARIQ PERVEZ KHAN, C.J.

The only question that has been raised, framed and argued before -us is that the appellant has been assessed for payment of Wealth Tax for years, 1997-98 to 2000-2001. Amongst other grounds on merits and facts before the lower forum a legal point was agitated i.e. that the assessment under the Wealth Tax Act could only be made by a Deputy Commissioner appointed as Deputy Commissioner Wealth Tax under section 9 of the Wealth Tax Act and that assessment made by a Taxation Officer who was appointed under section 208 of the Income Tax Ordinance which includes Deputy Commissioner shall not automatically be construed or taken to be Deputy Commissioner under the Wealth Tax Act.

2. We have studied the two different provisions of law i.e. Wealth Tax Act and the Income Tax Ordinance, 2001.

3. Deputy Commissioner under the Wealth Tax Act is defined "a Deputy Commissioner appointed under the Wealth Tax Act." Section 9 of the Act ibid empowers the Central Board of Revenue to appoint Deputy Commissioner for the assessment of Wealth Tax.

4. Taxation Officers are defined in section 2 clause (65) of the Income Tax Ordinance, 2001 and they are appointed as Taxation Officers which also include a Deputy Commissioner Income Tax but under section 208 of the Income Tax Ordinance.

5. Contention before us is that the Taxation Officer, as in the instant case, would be a Deputy Commissioner but for the purpose of Income Tax and not for making assessment of the Wealth Tax because he is to be specifically appointed under section 9 of the Wealth Tax Act.

6. Learned counsel for the respondents on pre-admission notice has relied on section 45A of the Wealth Tax Act and in support he has relied on an unreported judgment of the Lahore High Court in Wealth Tax Appeal No.175 of 2005 decided somewhere in the year, 2008 but actual date is not given. Learned counsel for the respondents has also referred to subsection (2) of section 2 of the Wealth Tax Act and states that under this provision of law if any term is not defined under the Wealth Tax Act it should be taken or borrowed from the Income Tax Ordinance.

7. We cannot agree with the contentions of learned counsel for the respondents on the short ground that subsection (2) of section 2 of the Wealth Tax Act will only be applicable if there is no express definition but where the Deputy Commissioner has been defined in both the Statutes, this subsection would not help him.

8. We have gone through section 45A of the Wealth Tax Act. It caters for a situation where there is defect, omission or mistake but in the form of assessment and it does not validate or confer jurisdiction.

9. The judgment cited and relied upon is also not helpful to the respondents because in that case assessments of the Wealth Tax were made though in some cases by the Taxation Officer appointed under the Income Tax Ordinance but as the Wealth Tax Act was repealed, therefore, instead of appointing Deputy Commissioner Wealth Tax, an additional authority was given to the Taxation Officers for making assessment of the Wealth Tax.

10. In the present case we repeatedly asked learned counsel for the respondents about any document, showing that Taxation Officers of the Income Tax were given additional authority to act as Deputy Commissioner under the Wealth Tax Act which he could not.

11. Where under the two laws, mentioned above, the legislature has expressly defined the term "Deputy Commissioner" differently i.e. under the Wealth Tax Act it is the Deputy Commissioner as defined in section 2(10) and appointment is made under section 9 of the Wealth Tax Act whereas Deputy Commissioner Income Tax as Taxation Officer is defined under section 2 Clause (65) of the Income Tax Ordinance and appointment is made under section 208 of the Ordinance ibid.

12. In absence of any express authorization the Taxation Officer also to act as Deputy Commissioner Wealth Tax, the order would be without jurisdiction. We, therefore, allow this appeal and answer the question by holding affirmatively that Taxation Officer shall not have assessed the appellant for the Wealth Tax but it should have been a Deputy Commissioner appointed under the Wealth Tax Act. The result would be that matter shall go back before the appropriate authority as held above for proceedings in accordance with law. H.B.T./206/P Appeal allowed.