' IMTIAZ RASHID SIDDIQUE, J.---This judgment will dispose of S.T.A. No.106 of 2002 and 93 of 2002, filed by the Collector of Sales Tax, as common issues of law are involved and are being decided herein.
2. In Sales Tax Appeal No.93 of 2002, show-cause notices were issued; an adjudication thereof resulted in respective orders-in-originals. Therein the respondent tax payer was directed to pay, with respect to certain tax periods of 1994-96, the mentioned amount of sales tax along with additional tax and imposed penalty under the provisions of Sales Tax Act, 1990.
3. Appeal before the Collector (Appeal), though resulted in reconciliation of the demanded sales tax which was found to have been paid; however the said forum, in the decision, maintained the demand of additional tax and penalty.
4. The aforesaid orders were then challenged, in appeal, before the Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad Bench-II.
The same was heard and decided vide order, dated 8-5-2002; issued on 14-5-2002. In the referred order it was noted that sales tax has been paid and that there did not exist any wilful or deliberate act in delayed payment of sales tax; thus the appeal was accepted and the impugned orders-in- original as well as the order-in-appeal of lower adjudication forums, were set aside by the learned Tribunal.
5. The referred order has been impugned, in this appeal, before this Court. The three questions of law, as framed herein, collectively raise grievance viz. Setting aside of additional tax and penalty, by the learned Tribunal.
6. In Sales Tax Appeal No.106 of 2002, under a show-cause notice, an adjudication was conducted and resulted in order-in-original. Therein a demand for payment of sales tax along with additional tax/surcharge as well as penalty under the Sales Tax Act, 1990, was raised against the respondent tax payer with respect to tax period 1989-90.
7. The matter then stood litigated inter se the parties; the same ultimately rested with the Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad Bench-I.
8. The learned Tribunal, after detailed analysis of the entire case, came to the conclusion that the demand pertained to a tax period prior to 1990; it was noted that the same fell within the purview of repealed Sales Tax Act, 1951 read with Central Excises Act, 1944. Accordingly the appeal was accepted and the demand against the respondent was set aside. It was held by the learned Tribunal, in its order, dated 17-7-2002 issued on 20-7-2002, that the provision of Sales Tax Act, 1990 did not apply to the period 1989-90 and the officers under the mentioned Act did not have any jurisdiction in relation to the mentioned period.
9. The referred order has been impugned, in the appeal, before this Court. The three questions of law, as framed herein, collectively raise the issue whether the provisions of Sales Tax Act, 1990 are applicable to a period prior to years, 1990.
10. Before us, at the very outset, an objection has been taken by the learned counsel for the respondent tax payers that both the sales tax appeals are not maintainable, since the same have been incompletely instituted and filed. According to the learned counsel, under section 47 of the Sales Tax Act, 1990 (hereinafter the Act), as it stood in 2002, an appeal could only be filed either by the person of tax payer or the Collector, who were aggrieved of an order of the Tribunal passed under section 46 of the Act.
11. In the same sequence, the said counsel pointed out that contrary to the aforesaid mandate of law, these appeals have been filed in the name of Collector of Sales Tax, not by the Collector himself but under the signature of one Amir Sultan, a Law Officer of the Collectorrate of Sales Tax, Rawalpindi. Indeed perusal of record of these appeals, show that the said Law Officer has signed the memo. Of appeal as well as the annexed affidavit. Thus, on the basis of aforesaid, learned counsel for the respondent has stated that the Act does not permit any one else except the Collector to sign the requisite pleading so as to institute and file an appeal against the order of the Tribunal, before this Court. According to him as the aforementioned has not been done, thus these appeals have been filed in violation to section 47 of the Act, as it then stood in 2002.
12. The aforesaid stance has been controverted by the counsel for appellant i.e. Collector of Sales Tax. The said counsel although does not dispute the factual basis of the assertion i.e. The fact that these appeals have been filed under the signatures of the mentioned Law Officer, however, it has been urged that even if this be a violation of law, at that point in time, the said violation has now been remedied in terms of section 47(11) of the Act. Under the referred provisions, according to the learned counsel, any such defect has been cured, by the federal legislature. According to the counsel, under the referred provision, it is now to be deemed that these appeals have been competently instituted.
13. In order to appreciate the respective position of the parties, it is in the fitness of things that a brief analysis of relevant provisions of the statute be analyzed with reference of the authorization to institute and file appeal before the High Court.
14. The officers of sales tax are appointed in terms of a notification, published in the official Gazette, issued under section 30 of the Act. As per mandate of section 31, the said officers are to exercise such powers and discharge such duties as are conferred or imposed upon them under the Act.
' Besides the aforesaid, under a notification issued by the Board in the official Gazette under section 32 of the Act, the referred powers can be delegated to subordinate officers subject to limitations or conditions given therein.
15. Indeed there does not exist any provision under the Act nor any notification has been issued by the Board till date, whereby a Law Officer is entitled to institute or file an appeal before the High Court, under section 47 of the Act.
16. Section 47 aforesaid, as originally framed under the Act of 1990, was substituted in its entirety vide the Federal Finance Act 1997; the relevant portion thereof, for the purposes of analysis of the issue raised herein, as it existed in 2002, is as follows:-- "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.
(3) >,
17. Section 47 aforesaid, was again substituted in its entirety vide the Federal Finance Act, 2005; the corresponding relevant portion thereof, as it exist after 2006, is as follows:-- "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 (an Additional Collector, authorized by the 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."
18. It is also relevant to state, here, that vide the Federal Finance Act, 2006, subsection (11) was incorporated in section 47 of the Act. The said subsection is as follows:-- "[(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.]"
19. Indeed perusal of the aforesaid provisions, in comparison to each other, clearly manifest that in the year, 2002, an appeal before the High Court against the order of the Tribunal, could only be instituted and filed, on behalf of the revenue, by the "Collector" himself and no one else. However after 2006, the Collector of any of his authorized officer not below the rank of Additional Collector, can accomplish the aforesaid institution and filing of appeal.
20. Admittedly a Law Officer as per terms of section 47 of Act, as it existed in 2002, could not exercise any such power of Collector as referred above. Thus it is apparent that the present appeals before the High Court, filed by a Law Officer, were incompetently instituted and filed; the same are not at all maintainable.
21. The learned counsel for the appellant has then stated that on the incorporation of subsection
(11) in section 47 of the Act, as detailed above, the stated defect stands cured. According to the counsel, the referred provision is retrospective in nature and being applicable on all pending causes before the High Court, it is to be deemed that these appeals have been properly instituted notwithstanding the fact that the same have been signed and filed by the Law Officer in absence of any power or authority under the Act, at the referred point of time.
22. This argument as well is not tenable in law. All statutory provisions, especially fiscal one, are assumed to be prospective unless E the phraseology thereof manifests that the same are retrospective. A reference to the language of subsection (11) of section 47 of the Act, does not show that the same is retrospective, directly or impliedly.
23. Admittedly any defect in the institution and filing of these appeal, after expiry of limitation in 2002, has created a vested right in favour of the respondent-tax payer. This vested right has remained intact despite the incorporation of subsection (11) in section 47 of the Act; this position remains, irrespective of the issue whether the aforementioned provisions are retrospective or not. It is well settled law that merely if a statutory provision is found to be retrospective, the same by itself does not destroy vested rights; reference is made to 1991 SCMR 1095.
24. The only objective achieved under subsection (11) of section 47, is that if any appeal has been instituted by an officer of lower rank but with authority of the Collector and that its limitation has not expired, on the date when the aforesaid provision was incorporated, it is to be deemed to have been filed by the Collector, Beyond the same, the deeming fiction of the referred provision cannot be stretched on any principle of statutory interpretation.
25. Notwithstanding the apparent defect in institution, we have also looked at the merits of respective appeals as well. In Sales Tax Appeal No.93 of 2002, it is an admitted position that the sales tax had been paid, as per tax regime then holding field in the year, 1995-1996. There was only an element of delay in payment of the due tax by the respondent-tax payer. The learned Tribunal had come to the conclusion that the same was not wilful or deliberate; thus the imposed additional tax and penalty was set aside, by it. This decision is in accordance with the principle laid down in 2004 SCM R 456. Therein the august Supreme Court has held that in the absence of any mala fide or wilful evasion of tax, additional tax or penalty cannot be imposed under the provisions of Sales Tax Act, 1990.
26. Similarly with reference to Sales Tax Appeal No.106 of 2002, it is an admitted position that Sales.
Tax Act, 1990 was enforced with effect from November 1, in 1990. It is prospective in nature and does not cover the period prior thereto as the Sales Tax Act, 1951 was then holding field. However, all pending proceedings at the time of its enforcement were covered and protected under section 6 of the General Clauses Act, 1897.
27. In the present appeal, in 1996, the proceedings were initiated with respect to 1989-1990 period against the respondent-tax payer. The learned Tribunal rightly held that the assumption and exercise of power with reference to a period prior to the enforcement of Act, was without jurisdiction.
28. In view of what has been stated above, these Sales Tax Appeals are held to have been incompletely instituted and filed under section 47 of the Sales Tax Act, 1990, as it stood in 2002.
29. Even on merits, there is no question of law which arises for our consideration. Accordingly these appeals are dismissed.