Haji NASEEM UR REHMAN vs COMMISSIONER OF INCOME TAX/ WEALTH TAX
This appeal concerns the validity of wealth tax assessments made against the appellant for the tax years 1997-98 to 2000-2001. The core legal question was whether a Taxation Officer appointed under the Income Tax Ordinance, 2001, possessed the requisite jurisdiction to assess wealth tax, or if such assessment was exclusively reserved for a Deputy Commissioner appointed specifically under Section 9 of the Wealth Tax Act. The Court held that the assessment made by the Taxation Officer was without jurisdiction. It reasoned that the Wealth Tax Act and the Income Tax Ordinance, 2001, provide distinct definitions and appointment mechanisms for their respective officers. Section 2(2) of the Wealth Tax Act, which allows borrowing definitions from the Income Tax Ordinance, does not apply where the Wealth Tax Act provides an express definition. Furthermore, Section 45A of the Wealth Tax Act does not cure jurisdictional defects regarding the authority to assess. The Court established the principle that in the absence of express authorization conferring additional powers, a Taxation Officer appointed under the Income Tax Ordinance cannot exercise the functions of a Deputy Commissioner under the Wealth Tax Act.
- Can a Taxation Officer appointed under the Income Tax Ordinance, 2001, validly assess wealth tax without specific authorization under the Wealth Tax Act?
- Does Section 2(2) of the Wealth Tax Act allow for the substitution of definitions when the Wealth Tax Act contains its own express definition of a term?
- Does Section 45A of the Wealth Tax Act validate assessments made by an officer lacking the statutory jurisdiction to perform such assessments?
- Section 9, Wealth Tax Act
- Section 2(2), Wealth Tax Act
- Section 2(10), Wealth Tax Act
- Section 45A, Wealth Tax Act
- Section 2(65), Income Tax Ordinance 2001
- Section 208, Income Tax Ordinance 2001
ORDER
' TARIQ PERVEZ KHAN, C.J.---The only question that has been raised, framed and argued before us is that the appellant has been assessed for payment of Wealth Tax for years, 1997-98 to 2000-2001.
Amongst other grounds on merits and facts before the lower forum a legal point was agitated i.e. That the assessm ent under the Wealth Tax Act could only be made by a Deputy Commissioner appointed as Deputy Commissioner Wealth Tax under section 9 of the Wealth Tax Act and that assessm ent made by a Taxation Officer who was appointed under section 208 of the Income Tax Ordinance which includes Deputy Commissioner shall not automatically be construed or taken to be Deputy Commissioner under the Wealth Tax Act.
2. We have studied the two different provisions of law i.e. Wealth Tax Act and the Income Tax Ordinance, 2001.
3. Deputy Commissioner under the Wealth Tax Act is defined "a B Deputy Commissioner appointed under the Wealth Tax Act." Section 9 of the Act ibid empowers the Central Board of Revenue to appoint Deputy Commissioner for the assessment of Wealth Tax.
4. Taxation Officers are defined in section 2 clause (65) of the Income Tax Ordinance, 2001 and they are appointed as Taxation Officers which also include a Deputy Commissioner Income Tax but under section 208 of the Income Tax Ordinance.
5. Contention before us is that the Taxation Officer, as in the instant case, would be a Deputy Commissioner but for the purpose of Income Tax and not for making assessment of the Wealth Tax because he is to be specifically appointed under section 9 of the Wealth Tax Act.
6. Learned counsel for the respondents on pre-admission notice has relied on section 45A of the Wealth Tax Act and in support he has relied on an unreported judgment of the Lahore High Court in Wealth Tax Appeal No.175 of 2005 decided somewhere in the year, 2008 but actual date is not given. Learned counsel for the respondents has also referred to subsection (2) of section 2 of the Wealth Tax Act and states that under this provision of law if any term is not defined under the Wealth Tax Act it should be taken or borrowed from the Income Tax Ordinance.
7. We cannot agree with the contentions of learned counsel for the respondents on the short ground that subsection (2) of section 2 of the Wealth Tax Act will only be applicable if there is no express definition but where the Deputy Commissioner has been defined in both the Statutes, this subsection would not help him.
8. We have gone through section 45A of the Wealth Tax Act. It caters for a situation where there is defect, omission or mistake but in the form of assessment and it does not validate or confer jurisdiction.
9. The judgment cited and relied upon is also not helpful to the respondents because in that case assessm ents of the Wealth Tax were made though in some cases by the Taxation Officer appointed under the Income Tax Ordinance but as the Wealth Tax Act was repealed, therefore, instead of appointing Deputy Commissioner Wealth Tax, an additional authority was given to the Taxation Officers for making assessme nt of the Wealth Tax.
10. In the present case we repeatedly asked learned counsel for the respondents about any document showing that Taxation Officers of the Income Tax were given additional authority to act as Deputy Commissioner under the Wealth Tax Act which he could not.
11.
11. Where under the two laws, mentioned above, the legislature has 2009] Gadoon Textile Mills Ltd. v.
Secretary, Revenue Division 167 (Justice (Retd.) Munir A. Sheikh, Federal Tax Ombudsman) expressly defined the term "Deputy Commissioner" differently i.e. Under the Wealth Tax Act it is the Deputy Commissioner as defined in section 2(10) and appointment is made under section 9 of the Wealth Tax Act whereas Deputy Commissioner Income Tax as Taxation Officer is defined under section 2 Clause (65) of the Income Tax Ordinance and appointment is made under section 208 of the Ordinance ibid.
12. In absence of any express authorization the Taxation Officer also to act as Deputy Commissioner Wealth Tax, the order would be without jurisdiction. We, therefore, allow this appeal and answer the question by holding affirmatively that Taxation Officer shall not have assessed the appellant for the Wealth Tax but it 'should have been a Deputy Commissioner appointed under the Wealth Tax Act.
The result would be that matter shall go back before the appropriate authority as held above for proceedings in accordance with law.