' SHAHID KARIM, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) has the following prayer:- I. "To declare that the notice C. No,2290 dated 15/03/2016 issued under section 38 of the Sales Tax Act, 1990 by the respondent No,3 is illegal, without lawful authority against the due process of law and of no legal effect. II. To declare that the subsequent notice C. No, CIR/Zone-X/ ST/2516 dated 07/04/2016 issued under sections 21 and 38 of the Sales Tax Act, 1990 by the respondent No,3 is illegal, without lawful authority against the due process of law and of no legal effect. III. To declare that the whole proceedings are illegal and void ab initio because no inquiry or investigation regarding tax fraud or tax evasion is pending before the issuance of notice under section 38 of the Sales Tax Act, 1990 to visit the business premises of the petitioner. IV. To declare that the acts of respondents Nos. 3 and 4 are violation of the provisions of sections 25 and 38 of the Act and Rule 12(b)(iii) of the Sales Tax Rules, 2006.
V. To direct the respondents not to proceed further in the matter, and the impugned notice C. No, 2290 dated 15/03/2016 under section 38 and subsequent notice C.No,CIR/Zone-Xl/ST/2516 dated 7/04/2016 under section 21 of the Sales Tax Act, 1990 for suspension of the sales tax registration of the petitioner may also be suspended till the decision of this petition by this Honourable Court."
2. This judgment shall also decide connected petitions W.P. No,20263 of 2016, W.P. 19553 of 2016 and W.P. No,23835 of 2016, which raise a common question of law and are thus being decided by a common judgment.
3. A common thread which runs through these petitions as regards the challenge by the learned counsel for the petitioners is the following question:-- Whether notices under section 38 of the Sales Tax Act, 1990 ("the Act, 1990") can be issued to registered persons (petitioners) without recourse to the provisions of section 25 of the Act, 1990?
4. It is not necessary to refer to the facts in detail of each constitutional petition separately. Suffice to say that the notices under section 38 of the Act, 1990 were served upon the petitioners seeking the provision of record maintained by the petitioners as registered persons. The learned counsel for the petitioners submit that section 38' cannot be invoked independently and can only be triggered after the procedural formalities of the provisions of section 25 of the Act, 1990 have taken place.
5. The learned counsel for the respondents, on the other hand, have controverted the position taken by the learned counsel for the petitioners and have retorted that the submissions so made by the learned counsel for the petitioners run counter to the mandate of section 38 of the Act, 1990 and the interpretation sought to be put on section 38 by the learned and for the petitioners will render the provisions of section 38 as superfluous and without a purpose.
Determination:
6. Section 38 and its contours has been the subject of judicial deliberation over the years. The precise nature and sweep of section 38 is still a concept which is continuously broached before the superior courts. However, in my opinion, the proposition being put forth by the learned counsel for the petitioners is nuanced and is not culled out from a reading of the provisions of sections 25 and 38 of the Act, 1990. To begin with, it may be iterated that the petitioners do not lay a challenge to the constitutionality of the provisions of section 38. They simply want this Court by employing the interpretive tool of reading down to hold that section 38 is subject to the provisions of section 25 of the Act, 1990 and can be set into motion only after the discovery of fraud or evasion of tax by the process of audit as contemplated under 'section 25 of the Act, 1990. This view is too tendentious and fantastic to be upheld. Since the constitutionality and vires of section 38 is not under challenge, it must be a pre-conceived notion that the provisions of section 38 are intra vires and valid for all intents and purposes. For facility, section 25 is reproduced as under:-- "25. Access to record, documents, etc.---(1) A person who is required to maintain any record or documents under this Act or any other law shall, as and when required by Commissioner, produce record or documents which are in his possession or control or in the possession or control of his agent; and where such record or documents have been kept on electronic data, he shall allow access to the officer of Inland Revenue authorized by the Commissioner and use of any machine on which such data is kept.
(2) The officer of Inland ' Revenue authorized by the Commissioner, on the basis of the record, obtained under subsection (1), may, once in a year, conduct audit: {{BLUR PAGE}} ' Provided that in case the Commissioner has information or sufficient evidence showing that such registered person is involved in tax fraud or evasion of t yx, Ike Agy authorize an officer of Inland Revenue, not below ilk irtaalt ef Assistant Commissioner, to conduct an inquiry (or iwkitvopaken under section 38: ilfrevided further that nothing in this subsection shall bar 4fle efficerof Inland Revenue from conducting audit of the records of, the registered person if the same were earlier audited by the office off& .Auditor-General of Ralflgan.
(M) After completion of the audit under this section er da3,y Ate" 'provision of ,this Act, the officer of Inland Revenue max, diffqr caktaining the registered person's explanation on all the its Raised in the audit shall pass eaerder under section 11.
(t5) Notwithstanding the penalties prescribed is Ago* 33, if a registered person' wishes to deposit the amount of tax Alton paid or amount of tax evaded along with default surcharge voluntarily, whenever it comes to his notice, before receipt of notice ofaudit, no penalty shall be recovered from him: dirovidediV a registered person 4o,deposit the amount of tigx short Raid or amount of tax evaded akjag 410 (defaidt ,charge ,ring the audit, or at ow dime Ware issuance of seW cause notice, he may deposit the evaded amount ,f3f ,tax, difipplt surcharge under section 34, and,twenty five or sent,of alterpenalty payable under section 33: dfrovided further that if a register& person wishes to deposit the (amount of tax short paid or amount of tax *waded along diffripplt sspreharge,after issuance ef show qpigi e ,notice, he shall (deposit the evaded ,dmount of :Itax, default Apt-charge under wetion 34, and full amount of the penalty payable under ,,feetion 33 and thereafter, ,the show cause notice, olltall stand ,aliated."
' Explanation.---For the purpose of sections 25, 38, 38A, 38B and 4514dodlorrremoval of doubt, it is declared that the powers of Ike gioard, Commissioner or officer of inland Revenue under the.Ge,sections are independent of the powers of the Board under section 72B and nothing contained in section 72B restricts the powers of the Board, Commissioner or officer of Inland Reveme to have access to premises, stocks, accounts, records, etc. Under these sections or to conduct audit under these sections."
7. ofAs* k of the Act, 1990 is located in the Chapter rented to book keepittlgaint Mvoicing requirement. Section 25 simply says that al person who is required to maintain any record or documents undff the Act, shall produce such record or documents a* ant when required b the Commissioner. The Commissioner may then autiktAfio, the officer of &Lanni Revenue to conduct audit on the basis, of the kiltikr& obtained adeli sublection (1). However, in case the Centnintioner had inhiltilintnelf eV Sufficient evidence Showing that sutals, registered perse involved hi of tax fraud or evasion elt tax, he may authorile eh officer eft. Inland ReAnte to conduc# an inquiry or investigation under Sectiott Thwie &re akre 1 9 Strearnefenning parallel in section 25. One relatenf6 theilitrOteeedlin10 elfithe Wad dit an Oder conducted by an officer of the Inland *Yet%le and subsections (3)' WO (5) delineate the consequences which flow from the conclusion of the audit conducted by such officer of Inland Revenue. For instance, the officer of Inland Revenue may obtain the registered person's explanation on all the issues raised in the audit and shall proceed' tie pass= seta Order under section 11 or 36 imposing the correct amount of tax,, 61ileiging default surcharge, imposing penalty and recoVery of any amount efioneously refunded. These proceedings do not entail any element of tax fraud or evasion of tax. This matter relates to the other stream of section 25 and in case the Commissioner has sufficient evidence showing that a registered person is involved in tax fraud and evasion of tax, he may have recourse to the provisions of section 38 to authorize an officer of Inland Revenue to conduct an inquiry or investigation.
8. Section 38, on the other hand, is found in the Chapter relating to offences and penalties.
Therefore, section 38 has a penal connotation and prima facie is to be employed with regard to any apprehension of offence having been committed or with intent to impose a penalty. However, as will be seen from a perusal of section 33 of the Act, 1990, which prescribes the punishment to be visited upon a registered person for an alleged offence committed by him, it will be noticed that section 58 , per se, does not establish an offence and the only penalty that may be visited upon registered person is prescribed in Item No,12 of the table given in section 33 and that too only if a person denies or obstructs the access of an authorized officer to the business premises registered office or to any other place where records are. Kept or otherwise refuses access to the stock, accounts of feetiftis of fails to present the Mine when required under section 38. In other words, in case a Often complies with the notice undef Section 38, he is not liable for any offence as specified in section JJ at the Aet, 1990. This aspect, however, does not have a substantial bearing on the issue which arises in this case and which is required to be determined. {{BLUR PAGE}}
9. I shall now proceed to dissect and deconstruct the provision of section 38 in order to stunt and nullify the proposition sought to be canvassed by the learned counsel for the petitioners. Section 38 gives the authority to any officer authorized either by the board or by the Commissioner to have free access to business or manufacturing premises, registered office or any other place where any stocks, business records or documents required under the Act are kept or maintained. Subsection
(1) of section 38 then proceeds to specify the four different kinds of persons in respect of whom the powers of section 38 may be exercised. These are: 1) Any registered person; 2) A person liable for registration; 3) A person whose business activities are covered under this Act; or 4) A person who may be required in any inquiry or investigation or in tax fraud committed by him or his agent or any other person.
10. It will be seen that there are four categories of persons who may be made subject to the proceedings under section 38. Section 25 of the Act, 1990, however, only relates to a registered person and none else in whose respect an audit may be conducted and proceedings may be initiated for an inquiry and investigation under section 38 upon sufficient evidence. This distinction is sufficient to reject the proposition tried to be advanced by the learned counsel for the petitioners.
Therefore, the persons liable for registration or whose business activities are covered under this Act are at least two of the categories which are not covered by the provisions of section 25. It is, therefore, a fallacy to submit that in all cases the provisions of section 38 can only be triggered once the proceedings under section 25 have been completed and conducted. As stated above, this course will render the provisions of section 38 as completely redundant and without purpose. It is trite principle laid down by the superior courts that redundancy and superfluity cannot be attributed to the legislature and effect must be given to every provision. Also it is not the function of the Court to lay a challenge to the legislative policy as reflected in the various provisions of a statute and the function of the Court is in fact to give effect to those provisions.
11. Here I shall pause to refer to a saltitary rule of construction of a statute in order to bring home the point in issue. According to the surplusage canon, "Every word and every provision is to be given effect. Verba cum effectu sunt accipienda (words are to be taken as having an effect). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence". (Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner). In Reading Law, the concept was further elaborated upon as follows: "If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence."
"The surplusage canon holds that it is no more the courts' function to revise by subtraction than by addition. A provision' that seems to the court unjust or unfortunate (creating the so-called ca-sus male inclusus) must nonetheless be given effect. As. Chief Justice John Marshal explained: "It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation." Or in the words of Thomas M. Cooley: "The courts must.... Clean in favour of a construction which will render every word operative, rather than one which may make some idle and nugatory." This is true not just of legal texts but of all sensible writing: "Whenever a reading arbitrarily ignores linguistic components or inadequately accounts for them, the reading may be presumed improbable."
"Lawyers rarely argue that an entire provision should be ignored---but it does happen. For 'example, in Fortec Constructors v. United States, the quality-control paragraph of a construction contract with the Army read as follows: ' All work.... Shall be subject to inspection and test by the Government at all reasonable times and at all places prior to acceptance. Any such inspection and test is for the sole benefit of the Government and shall not relieve the Contractor of the responsibility of providing quality control measures to assure that the work strictly compiles with the contract requirements. No inspection or test by the Government shall be construed as constituting or implying acceptance.
' When the Army demanded that the contractor demolish and reconstruct noncompliant work, the contractor protested that the on-site Army inspector had failed to notify Fortec of the defects and that this silence constituted an acceptance of the original work. The court correctly rejected this argument. {{BLUR PAGE}} To agree with Fortec's contention would render clause 10 meaningless. This court must be guided by the *ell accepted and basic principle that an interpretation that gives a reasonable' ineaning to all parts of the contract will be preferred to one that &Ives portions of the contract meaningless.
Therefore, Fortec's 6thiViniti6W 11: rejected for being inconsistent with contract The Corps quality assuraiki iftsWeeikini did not titteptance of the work."
12. Rir =MT Met v. Butler, 297 US 1, 65, Rob its, J. Stated that "These Airdli 6-4746161t l Meaningless, else they woad not have been used."
13. The category ofgisViiiii,49 May be' felltrifedi flOt any itilliffi3Y 611 investigation in at tax fratnil eemmitted by hiiiii*trientiMied in seettkin taiegory Which is riot free from doubt. Ie case of this category of fiarma 'relatable to the provisions of section 25 of the Act, 1990. As gnintilittett tikW tditintssioner may direct an investigation or, inquiry t1/49 be had sViiiitiont evidence showing that a registered person is involved in tax fraud or evasion of tax. This is the only provision perhaps in the Act, 1990 which relates to the involvement of a registered person in a tiSx fraud or evasion of tax. Such an opinion can be formed by the Commissioner upon the coming in his hands of any record or dochmentli maintained by a registered person. Upon the formation of such an opinion the Commissioner may direct an inquiry or investigation under section 38 to be held. This is precisely the inquiry and investigation contemplated by section 38 while referring to it as one of the categories of persons in respect of whom a notice under section 38 may be served. Therefore, this is the only instance where the provisions of section 38 have a close nexus with the provisions of section 25 and both these provisions are to be read inextricably. In all other cases of categories of persons, section 38 is an independent self-executing provision and can be set in motion without recourse to section 25 of the Act, 1990. By way of elaboration, it may be stated that in case there are C allegations of tax fraud or evasion of tax, the provisions of section 38 eittittit be invoked unless an opinion has been formed under section 25 by thi teirrnnissiMitr etincerned.
1 the po ers of A-- tiuthori zed officer under section 38 are simply to insped the goods, stocks, records, data, documents, correspondence and any other record or documents kept by a person in the course of his business and for is purpose, the authorized officer shall have free sletess to business or manufacturing premises, registered office or any other place where any stocks, business records or documents are kept or niiiiiitained. Therefore; the power is only united to inspection of such Meld as also takiiii fIfttt 'record into custody in original or ift the form No other j tW F is ehiiiefriblated by section 38 to fest in the authorized officer. The person whose premises are 'sop* 4o Ate inspected, is in turn, required to provide free access to :the:40447# officer and in case he fails to do so, that person shall be Hai* tt9 penalized and punished tterms of section -4 4 tgle ARt.,, iye.. Fp reiterate, the powers of the aukrizedl officer (do not ttrAitel4Nond inspction of the record maintained to a person and cannot4essiretched to he employed as a tool to harass that person or to use it as alt element of intimidation for a collateral purpose.
15. The Yearned counsel for the petitioners have relied Lupon a plethora of judgments of the superior courts which in the estimation of the learned counsel is relevant to the controversy 'in hand. In the first instance, Mr. Hassan Kamran Bashir, Advocate relied upon Collector Sales Tax and Central Excise (Enforcement) and another v. Messrs Mega Tech vt.) Ltd. (2005 PTD 1933). In this judgment, the Supreme Court of Pakistan was dealing with the interplay of sections 40, 40-A and 38 of the Act, 1990. However, the issue in the said judgment turned on the precise scope of sections 40 and40-4fi,of the Act,
100. The scope of section 38 vis-a-vis, section 25 Ali r*Rt arise in the s.Said precedent.
16. The second judgment relied ,}upon by the learned comiel ids Federation of Pakistan through Secretary, Ministry of Finance, ,Firdgrill Secretariat, Islamabad and .,46;J140,v. Messrs Master Enterprises (Pvt.) Ltd thrQugh Managing Direqtpr (2003 PTD 1034). Once again, the crux of the jimiginent relates to the true scope, of sections 40 and 40-A of th,e Act, 1990 and the precise submission ,O the learned counsel for the petitioner before the Supreme Court was that notice under section 38 had been served on the registered person whereas a raid was conducted and the record was seized which was not the mandate of section 38R4, fact, in the garb of the powers under section 38 of,the Act, the powers of sections 40 and 40-A had been exercised. This precedent too does not advance the case of the petitioners.
17. The learned counsel next relied upon a judgment of this CeoluTt reported as Messrs Ihsan Yousaf Textile Mills t(Pvt.) Ltd. Faisalabad 1,), Federation of Pakistan through Ministry of Fiance, Islamabad and others (2003 PTD 2037). Once again, surfjee to say that the said judgment is not on all fours with the facts ,,,,and circumstances of the present petitions. In fact, in paragraph 11 of the sald judgment, the learned Judge spelt out the issue which required to be resolved and which was that "in the guise of proceeding under section 38, the departmental officers could act and proceed in a manner which was possible only either under the proceedings of section 40 or those of 40-A of the Sales Tax Act, 1990". {{BLUR PAGE}}
18. It was accordingly held that the general provisions of section 38 cannot be made to circumvent or override the Constitutional guarantees of an individual and the procedural formalities for a regular search or seizure given in sections 40 and 40-A had to be complied with.
19. Messrs Firdous Cloth Mills (Pvt.) Ltd. Through Company Secretary v. Federation of Pakistan through Ministry of Finance and others (2016 PTD 257) is a judgment relied upon both by the learned counsel for the petitioners as also by Mr. Sarfraz Ahmad Cheema, Advocate, learned counsel for the respondent-department in one of the petitions.' The relevant question that fell for determination in this precedent was whether in case section 40-B is invoked, can the Commissioner authorize the same officers to exercise powers under section 38 or not. The primary issue involved before this Court was whether separate notices should have been issued under section 38 and section 40-B of the Act, 1990. It was held by this Court that both the sections 38 and 40-B were independent provisions and could be used independent of each other as also simultaneously. It was further held that there was no bar on the powers of Commissioner to invoke section 40B on the basis of material evidence to authorize the officers as also under the provisions of section 38 to inspect the premises or record of the registered person. In fact, the ratio of this judgment supports the stance taken by the learned counsel for the respondents that the provisions of section 38 are independent in all respect and can be put in operation without recourse to any other provision of the Act, 1990.
20. The last judgment relied upon by the learned counsel for the petitioners is a Karachi High Court judgment reported as A.M.Z. Spinning and Weaving Mills (Pvt.) Ltd. Through Manager Finance v.
Federation of Pakistan through Secretary, Revenue Division/Ex-Officio Chairman, C.B.R., Islamabad and 2 others (2009 PTD 1083). The challenge in the said judgment was the violation of sections 40 and 40A of the Act, 1990 and it was submitted that the action of the respondents amounted to an illegal search and seizure of their records. The respondents before the Karachi High Court asserted that the action was taken pursuant to section 38 and was, therefore, valid. It was under these circumstances that the true import and extent of the provisions of section 38 were analyzed. The following observations are pertinent for our purposes:- "In the first instance, and this is essential to the proper conduct of the inspection, the department must have reasonable cause for arriving at a determination that a particular premises ought to be visited for the purpose of carrying out a section 38 inspection. The department cannot use section 38 to enter into a given premises without reasonable cause and then look for or create cause to take record and documents into custody. Secondly, the officer must have prior authorization to carry out the inspection by the Board or by the Collector and must show it to the person present at the premises where the record and documents to be inspected are kept. Without reasonable cause and proper authorization the visit and all subsequent actions taken by the officer will be entirely illegal."
21. These observations were culled out from almost the entire survey of case law obtained by that time of the superior courts with regard to the interpretation of section 38 of the Act, 1990. Drawing upon the case law discussed by the learned Judge, the following conclusions were drawn:-- "Before embarking on section 38 visit to any premises the department must have reasonable cause to believe that such a visit is warranted. This has to be more than a mere hunch or suspicion and must also be recorded in writing. Since the purpose of a section 38 visit is to see that proper records under the Act, Rules and Regulations are maintained, reasonable cause for a visit could, for example, arise in a situation where a registered person has filed documents in the normal course which indicate that a particular record is not being maintained or that it is not being maintained in the required manner. The basis for the visit need not be shared with the person whose premises are to be visited but must be on the department's files for production in proceedings that may be instituted by the said person. The officer designated to conduct the visit must be authorized in that regard by the Board or the Collector and must produce a copy of the authorization before commencing the inspection. The visit must be confined to inspecting the record and documents that are in plain sight or those that are voluntarily made available for inspection by the person(s) present at the premises on request. Consequently, custody within the meaning of section 38 can only be taken of such record and documents that are in plain sight or those that have voluntarily been made available for inspection on request. The record and documents taken into custody must be against a receipt signed by the officer. The officer has no power under section 38 to compel the production of any record or document that is not in plain sight or that has not been voluntarily made available as above. Any record or document taken into custody under compulsion cannot be used for any purpose whatsoever by the department against the person from whose custody the record or document has been taken by an officer into his possession.
' Any section 38 action that is in contravention of the foregoing will be an action that falls short of the requirement to act fairly, justly and reasonably and, therefore, wholly illegal and void.
Permitting the department to benefit from such actions would be equally illegal."
22. The conclusions drawn by the Karachi High Court, in my opinion, and respectfully is the correct view with regard to the construction to be put on the provisions of section 38. The only precondition, therefore, prescribed by the said judgment is that there must be a reasonable cause to believe that such an inspection is warranted and such a cause must be reduced in writing.
Moreover, the officer designated must be authorized in this regard by the board or the collector.
More importantly, the visit must be limited to carrying out inspection of the record and the authorized officer cannot travel beyond inspection of record and the provisions cannot be used for search and seizure purposes. This is plainly the purpose of enacting section 38 and nothing more can be read into the provisions of section 38 so as to arm the authorized officers to hound and intimidate a person whose records are being inspected.
23. Applying the criteria mentioned above to the facts and circumstances of the present case, it can be seen that the petitioners have been informed of the requisite cause for arriving at a determination that a particular premise ought to be visited for the purpose of inspection to be carried out under section 38 of the Act, 1990. It is also not the case of the petitioners that the officer who has been appointed is not a properly authorized officer. The only issue in this regard was raised by Mr. Mohsin Virk, Advocate who challenged the authority of the officer on the touchstone of section 25 of the Act, 1990. However, I have held that that provision is an independent provision and is relatable to the provisions of section 38 in limited circumstances and do not impinge upon or detract from the independent standing of section 38. The notices under section 38 served upon the petitioners are, therefore, held to be valid and proper and there is no cause for interference in these notices by this Court in its Constitutional jurisdiction.
24. In view of the above, these petitions are without merit and are, therefore, dismissed.