ORDER: MR. DR. SHAH KHAN, MEMBER. (1). The above titled appeal has been filed by the appellant Tax Department against the appellate order dated 23.11.2022 passed by the Learned Commissioner Inland Revenue (Appeals), Peshawar, whereby appeal of the respondent company was accepted.
2. Briefly stated facts of the case are that the respondent company is engaged in the business of purchase, transmission and distribution of electrical energy in the Districts of Khyber Pakhtunkhwa.
In the instant case, Deputy Commissioner-IR (DCIR) re-decided the case vide Assessment Order No. 11/2020 dated 26.06.2020, wherein sales tax demand was created at Rs. 22,522,070/- u/s 11(2) of the Sales Tax Act, 1990 ("the Act") as principal Sales Tax along with imposition of default surcharge u/s 34(1) and penalty u/s 33(5) of the Act. Not satisfied with the above treatment, the respondent company filed appeal before the L/CIR(A), who vide impugned order, accepted the appeal of the respondent company and vacated the order of Assessing Officer. Feeling aggrieved, the appellant Tax Department has filed the instant appeal before this forum to contest the findings of L/CIR(A), on the strength of grounds in the memo of the appeal.
3. The appeal was fixed for hearing on 07.11.2024. On due date, Mr. Ishfaq Ahmed, DR appeared on behalf of the appellant Tax Department and argued his case, while Mr. Hussain Ahmad Sherazi, Mr. Mouzzam Ali Butt, Advocate/AR appeared to represent the respondent company and defended the order passed by learned CIR(A), Peshawar.
4. Arguing on the grounds of appeal, the L/DR contended that the impugned order passed by the L/CIR (Appeals) was against facts, law and settled principle because the law does not bar on the Commissioner IR to refer a case back to the Assessing Officer in terms of section 45A(4) of the Act.
It was further asserted that the respondent had claimed inadmissible input tax against exempt supplies/services and had committed short payment of sales tax due to mis-declaration of the electricity units in the returns. It was further averred that since the respondent had not filed any appeal against the order passed by the Commissioner IR u/s 45A(4) of the Act, hence the L/CIR (Appeals) was not justified to discuss the same and vacate the order of the Assessing Officer on the basis of the same. Based on the above, the L/DR pleaded for vacation of the impugned order passed by the L/CIR (Appeals).
5. The L/AR, on the other hand, defended the impugned order and contended that the L/CIR had no power to refer the case to the Assessing Officer because the provisions of section 45A(4) of the Act empower him to pass any order deemed fit, however, the said provision does not allow him to either refer any decision back to the Assessing Officer or to delegate his powers to the Assessing Officer. Based on the above, the L/DR pleaded for upholding the impugned order passed by the L/CIR (Appeals).
6. Arguments of the learned L/DR as well as learned L/AR have been heard. Relevant record has also been perused carefully besides consulting the relevant provisions of law. Persual of section 45A(4) of the Act transpires that the Commissioner IR has no doubt powers to call for record and examine the same and he was required to pass an order by himself under section 45A(4) but he could not delegate his powers to the Assessing Officer nor could he gave directions to the Assessing Officer to pass a fresh order. The obligation entrusted upon an authority cannot be passed on to the lower authority unless it is expressly provided so. This proposition has been upheld in a case reported as PTCL 2019 CL. 377 by the honorable Lahore High Court. The L/DR could not convince us as to how the impugned finding of the L/CIR (Appeals) is wrong in law. The departmental appeal is thus found to be devoid of any merits and the same is thus dismissed.
7. Departmental appeal dismissed as above.
8. This order consists of (03) pages and each page bears my signature.