MASOOD AKHT AR SHAHEEDI (ACCO UNTANT MEMBER) .---- The instant appeal has been filed by the registered person against Order bearing No. 547/2014 dated 11-12-2014 passe d by the learned CIR (Zone-I), Faisalabad whereby he while exercising powers of revisional jurisdiction conferred upon him under section 45A(4) of the Act re-opened the Order-in-Original No.53/2013 dated 19-11-2013 passed by the DCIR (E&C Unit-2, Zone-I), Faisalabad which was decided in favour of appellant in earlier round of litigation.
2. Briefly facts of the case as succinctly ascribed on record are that during scrutiny of sales tax returns for the periods from July-201 1 to February-2013, the tax functionaries observed that appellant has shown zero-rated supplies of textile goods to different registered persons but cross matching of his sales tax returns with that of data of his buyers has revealed various discrepancies in zero rated supplies made during periods under reference.
Based on the said omission/irregularities, adjudication proceedings were initiated by the taxation officer by way of issuance of show-cause notice dated 10-06-2013 for recovery of purportedly evaded amount of output tax under section 11(3) of the Act against which explanation tendered by the registered person was found satisfactory and resultantly , adjudication proceedings were culminated in passing of an order dated 19-11-2013 in favour of the appellant.
3. All of sudden on 11-12-2014, the learned CIR(Zone-I) by way of impugned order issued under section 45A(4) of the Act proceeded to reopen the said adjudication order and directed the learned DCIR (E&C Unit-3, Zone-I) to pass a fresh Speaking order by incorporating all the aspects/facts of the case in accordance with the provisions of law after af fording the proper opportunity of being heard.
4. Learned counsel of appellant while opening his arguments, has vehemen tly contested that the learned Commissioner has erred in understanding the law and impugned re-opening order dated 11-12-2014 passed by him is not in accordance with the provisions contained in section 45A(4) of the Sales Tax Act, 1990 by simply stating therein that the adjudication order dated 10-11-2013 is found unsatisfactory . Learned counsel further forcefully contended that the learned Commissioner was legally required to pass a fresh order by himself under section 45A(4) of the Act and he cannot delegate his powers to any subordinate officer for the purpose of recording a fresh order after re-opening of an earlier order and there is no authority or provision for remanding the case to sub-ordinate officer as under the provisions of section 45A(4) of the Act, the Comm issioner can pass such order as he may deem fit. To strength his argume nts, learned counsel placed reliance on (2017 PTD (Trib.) 1010), (2019 PTD 594) and (1997 SCMR 641). On the other hand, when the learned DR was confronted with the situation cited supra, in counter arguments he has opposed the contentions of learned counsel for the appellant and supported the order of the learned CIR for the reasons recorded therein and simply re-endorsing the basis evolved therein that the Commissioner has ample powers to look into the matter and after examining the record, he may re-open any order under section 45A(4) of the Act, passed by his subordinate officer and nothing newel, has been put forth by him.
5. The arguments of the learned representatives of both the rival parties have been heard, the impugned order of the learned CIR and the case law cited by the learned AR of the registered person have also been perused carefully . There is no doubt that in the instant case, the appellant is aggrieved by the act of the learned CIR whereby the Order-in-Original No.53 of 2013 has been re-opened under section 45A of the Act and its remanded to a subordinate officer for adjudication afresh. It is crystal clear and obvious that the Commissioner Inland Revenue has no doubt ample powers to call for and examine the record but for that purpose, learned Commissioner was legally required to pass a fresh order by himself under section 45A(4) of the Act and he cannot delegate his powers to any sub-ordinate officer for the purpose of recording a fresh order after re-opening of an earlier order . It is the Commissioner who can pass a necessary order as deem fit by himself and not by his sub-ordinate officer because there is no authority or provision empowering him to delegate his powers to a sub-ordinate officer under subsection
(4) of section 45A the Act as also held by the Hon'ble Lahore High Court, Lahore in case of "Commissioner Inland RTO, Faisalabad v. Messrs Magna Textile Industries (Pvt.) Ltd., Faisalabad" (2019 PTD 594). This is a legal obligation imposed on the Commissioner by the law itself. If legislature imposes a personal obligation on an authority than the same authority is required to discharge that legal obligation. The obligation cannot be passed on to anybody else. The relevant except of the said judgment of Hon'ble High Court, Lahore is reproduced hereunder:- - "In the absence of any such power or authority to delegate, the direction by the Commissioner through order dated 11-12-2014 to officer subordinate to 'proceed to determine/adjudicate, suffers from jurisdictional defect, hence, of no legal effect. The expression 'satisfying himself' is crucial and reinforces the spirit of exclusivity of the jurisdiction conferred. It appears that where the legislature has intended to extend authority or power to delegate, it is allowed such delegation under section 32 of the Act of 1990.
The Tribunal has rightly observed that reference of matter to any subordinate officer for the purposes of passing any order or decision would upset and offend the hierarchy of adjudicatory process, provided under the Act of 1990.
In view of the above, our response to first question is in negative, declaring that the Commissioner cannot delegate the powers/authority conferre d, meant to be exclusively exercised by the Commissioner in terms of subsection (4) of section 45A of the Act of 1990. The order dated 11-12-201 4, whereby the Commissioner after re-opening of the matter directed the subordinate officer to adjudicate, has been rightly set aside by the T ribunal and call for no interference."
6. By respectfully following the judgment of the Hon'ble High Court, Lahore, referred supra, the instant appeal is accepted and the impugned order of the learned CIR being illegal and devoid of legal substance is hereby set aside.