JUDGMENT MALIK MUHAMMAD QAYYUM, J. - In this petition under Article 109 of the Constitution of Islamic Republic of Pakistan, 1973, notice issued by respondent No.2 for taking certain penal measures against the petitioner on account of its failure to pay sales tax has been assailed on the groined that such a notice could have been issued by an officer not below the rank of Assistant.
Collector while respondent No.2 is a Superintendent.
2. Learned counsel for respondents has, however, submitted that under section 48 of the Sales Tax Act,.1990 any officer of the Sales Tax Department, who may include Superintendent, can issue notice and take proceedings for recover) of Sales Tax. It is true that section 48 of the Sales Tax Act, 1990 authorises an officer of the Sales Tax Department to take proceedings mentioned therein for the purposes of recovering sales tax but the exercise of this power has been regulated by Central Board of Revenue by framing rules in exercise of power conferred upon it under section 50 of the Sales Tax Act, 1990. Section 31 of the Sales Tax Act, 1990 provides that officers appointed under the Act shall be empowered to exercise such powers and discharge such functions as may be conferred upon them under the Act but by virtue of proviso the Central Board of Revenue was empowered to put such limitations and conditions on the exercise of powers as it may deem fit. It is therefore clearly competent for the Board of Revenue to provide as to what powers can be exercised by an officer of a particular rank.
3. Under the Sales Tax Recovery Rules, 1992, the recovery can be effected by adopting any of the modes prescribed therein by the Recovery Officers. According to rule 2 (x), recovery officer means an officer of sales tax not below the rank of Assistant Collector. That being so, Superintendent who is an officer below the rank of Assistant Collector does not fall within the definition of Recovery Officer and could not have taken any proceedings to effect recovery under the Rules. Learned counsel for respondents has pointed out that the Superintendent has been delegated the powers of Assistant Collector of Sales Tax and as such he falls within the definition of Recovery Officers as given in rule 2 (x).
4. This argument has no force. Even though a person may have been conferred certain powers belonging to another officer or authority yet his status remains to be that which he enjoys by virtue of his appointment and holding office and does not undergo a change on account of delegation of powers. This question cair\e up for consideration before this Court in another context Chaudhry Khalil-ur-Rehman's Vs. The Registrar Co-operatives, Punjab, etc. (NLR 1004 Civil 714). After elaborate discussion it was held that there was a distinction between a person holding an office and a person exercising powers of that office and conferment of power does not by itself make the incumbent the holder of that office also. While coming to this conclusion, the earlier judgment of this Court in Hafiz-ud-Din Vs. Mian Khadim Hussain, Additional Deputy Commissioner. Lahore and another (PLD 1965 Lahore 439) was relied upon. This proposition was not seriously disputed by the learned counsel for respondents.
5. The vires of Sales Tax Recovery Rules, 1992 have not been challenged before me by the learned counsel for the respondents. Furthermore, as the respondents themselves are the authors of those rules, it is highly doubtful as to whether they could have done do at all Learned counsel for the respondents has further submitted that even though respondent No. 2 was not competent to recover the dues yet he could have issued a notice under section 48 of the Sales Tax Act, 1990.
6. This contention of the learned counsel is misconceived as the issuance of notice under section 48 of the Act is obviously for the purposes of effecting recovery. Furthermore, the said notice places an embargo on the petitioner to remove any goods from the business premises without payment of tax which is one of the modes provided by section 48 (1) (c) for ensuring the recovery of tax.
In view of the above, this petition is allowed and the impugned order is declared to be without lawful authority and of no legal effect. It shall, however, be open to the competent authority to take such action as permissible under the law.
No order as to costs.