2004 PLP (Trib (PTD)

Date of hearing: 21st August, 2003. MS. YASMIN ABBASEY, MEMBER (JUDICIAL‑II).‑‑This appeal has been preferred by appellant against order, dated 22‑10‑2001 whereby the order for recovery of evaded amount of sales tax alongwith additional tax and 30% penalty equal to the amount of tax evaded by him has been passed; on the charge that he has, suppressed their sales amounting to Rs.6,12,19,416 and accordingly evaded sales tax of Rs.1,01,01,204.

2. In against to the observation this appeal has been preferred mainly on one ground that the very search and seizure of record of appellant was illegal by virtue of sections 40 and 40(A) of Sales Tax Act read with section 38.

3. Learned Representative from both sides expressed their point of view. According to the appellant on 6‑6‑2001 Superintendent Syed Feroze Alam alongwith this team visited the office of appellant at 7 p.m. At that time due to closing hours the office computer room and record room were locked. Chowkidar had informed accordingly but the said team under the supervision of Superintendent broke open the lock of computer section and record room and had taken the entire record so also the irrelevant paper not related to sales tax and Central Excise in their custody. This act of Superintendent of Sales Tax has been condemned as violation of section 40(A) of Sales Tax Act as by virtue of this provision, search without warrant can only be made by an officer of Sales Tax who is not below the rank of Assistant Collector whereas Mr. Feroze Alam was a Superintendent. Even if for the sake of arguments letter placed on record of 1‑6‑2001 issued by Deputy Collector authorizing Superintendent Mr. Feroze Alam to make an enquiry for the purpose of sales tax is taken as an authority letter then also section 38 negates this authorization letter issued by Deputy Collector as the term authorized officer defined under this section is with reference to the person to whom Board or the Collector delegates such power, but in the present case we have observed that no such authority letter either by the Board or by the Collector has been issued or placed on record by the department. Here we would also like to refer section 32 of Sales Tax Act which relates to the delegation of power by the Board and by virtue of sub‑clauses (2) and (3) of section 32 of Sales Tax Act which reads as under, no subsequent delegation of power is allowed by the person, to whom such powers are entrusted by Collector. (2) "Unless the Board in any case otherwise directs, the Collector may authorize any officer subordinate to him to exercise within any specified area, any of the powers of the Collector or of any other officer of sales tax under this Act." (3) "The officer to why powers are delegated under this section shall not further delegate such powers."

4. So in the light of subs‑clause (3) even if it assumed that Deputy Collector has been empowered by the Collector to make such search or enquiry in the subject‑matter then the next delegation by him to Superintendent in the light of sub‑clauses (3) and (2) was beyond his powers as the intention of legislature of making such limits for further, delegation of power cannot be ignored.

5. Learned counsel for appellant has also referred unreported judgment of Hon'ble High Court of Sindh in C.P. 1926 of 2000 wherein it has been observed that: "We are of the considered opinions that resumptions of document by the departmental officer is not in accordance with the procedure prescribed by the legislature in sections 40 and 40(A) of Sales Tax Act 1990. It is an established principle of law that acts, deeds and things to be done as they are required or not at all". It is therefore, held that resumption of documents by the departmental officer on 19‑12‑2000 was not in accordance with law as such the respondent Nos.2 to 5 cannot place any reliance on the documents which they have acquired otherwise than in due course of law".

6. In the light of this state of affairs the act of Superintendent of Sales Tax of visiting the site land taking the documents in his custody was contrary to law and that too has not been explained by the departmental representative. Hence under these circumstances we hereby set aside impugned judgment as the provision of section 103 of Criminal Procedure Code, 1898 as required under section 40 of Sales Tax Act too has not been followed in the present case. With these observations appeal of the appellant is allowed and department is directed to return back the documents seized by them to the party within seven days from the date o Appeal of this order. S.A.K./44/Tax(Trib.) Appeal allowed.