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Petitioner: Messrs DUTY FREE SHOP LTD. VS Respondent: CENTRAL BOARD OF REVENUE and others
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed, Raja Qureshi, Ghous Muhammad Title: Messrs DUTY FREE SHOP LTD. vs CENTRAL BOARD OF REVENUE and others Case No.: Constitutional Petitions Nos.D-847, D-1865 and D-1930 of 1997 Date of Judgment:1999-07-05 Reported As: 2002 PTD 1167 Result: Petition dismissed
JUDGMENT
JUDGMENT WAJIHUDDIN AHMED, J.---The petitioner in all these Constitutional petitions are engaged in the business of running Duty Free Shops. All of them are holders of private warehouse licences. Their common grievance is that in deviation of the prevalent practice orders have lately been passed to collect withholding tax at the statutory rates of 5% from the petitioners under section 50(5) of the Income Tax Ordinance, 1979. They say that such has come about mutely upon a change of opinion and, at any rate, is not in conformity with clause (b) of section 50(5) of the Ordinance aforesaid of these petitioners Constitional Petition No.D-847/1997 was admitted to regular hearing on 27-8-1997, whereas the remaining two were taken up after putting the parties on notice that the same can be heard, admitted and disposed of at the same time. Orders were reserved upon due hearing on 9- 12-1997. There are two kinds of warehouses envisaged, respectively, by sections 12 and 13 of the Customs Act, 1969, viz., public warehouses established and run under official control and private warehouses, vesting in non-official or private hands. Admittedly each of the petitioners here holds a private warehouse licence. Under Customs General Order (CGO) No.3 of 1982, issued on 4-4-1982 (reported in PTCL 1983 SC 68), the PIA Duty Free Shops( were enabled to facilitate returning Pakistanis to purchase permissible goods under the Baggage Rules as also to streamline the prevalent system of sales at the International Airport Terminals. The procedure this delineated apparently applies to all the three petitioners here. In short, those similarly placed as the petitioners are permitted to import goods and store the same in private bonded warehouses licensed to each of them and such is visualized to be against in-bond bills of
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entry. Goods thus stored are issued against indents to the relevant sales outlet under escort by a customs officer which being done such are entered in the relevant Sales Outlet Stock Register, the escorting officer countersigning the entry. More or less similar procedure is followed for airport outlets. In terms of section 97 of the Customs Act no warehoused goods may be taken out of any warehouse, except on clearance for home consumption or export or for removal to another warehouse or as otherwise provided in the Act. The value of and the rate of duty applicable to any imported goods cleared from a warehouse under section 104 of the Act would be the value and the rate of duty in force on the date on which the bill of entry for clearance of such goods is presented under the said section. This is postulated by section 30 of the Act. It, therefore, follows in the instant cases that till such time as the goods remain warehoused or are exported while warehoused or are removed to another warehouse no customs duty is payable on the same. This arises because the goods so warehoused are not technically imported into Pakistan. In point would be Canada Sugar Company v. The Queen (1898) AC 735, where it was observed that goods are imported into Canada "when the goods are landed and delivered to the importer or to his order---or when they are taken away out of warehouse if, instead of being delivered, they have been placed in bond". Letter, dated 29-7-1992 from the Central Board of Revenue at page 159 of Petition No.D-847 of 1997 refers indeed through a letter of even date (page 27-CP No.1865 of 1997) issued by the Central Board of Revenue to the Collectors of Customs (Preventive) (Appraisement), Karachi such Collectors of Customs were advised "to issue the licences and allow the clearance of all goods/fixtures imported for the Duty Free Shops without duties, taxes, import levies and warehousing fee/charge". A copy of such letter was forwarded to Aar Rianta International, the petitioner in Constitutional Petition No.D-1865 of 1997, it has not been disputed before us that the other petitioners also enjoy similar facilities. It is noteworthy that through the former letter, dated 29-7-1992 from the Central. Board of Revenue to Messrs Aar Rianta International, it was observed , "........... The provisions of withholding under section 50(5) will obviously not apply as is the existing practice in case of goods placed in the bond. Income-taxes will, however, be payable on the income/profits earned during the year". It is a deviation from this practice, apparently, applicable to the other petitioners as well, which has given rise to the petitions in hand. Mr. S. Tariq Ali, the learned Standing Counsel for the Federal Government of Pakistan, on his part, has pointed out that copies of the first mentioned such letter were not forwarded by the author thereof, namely, the Second Secretary in the Central Board of Revenue to the other relevant departments. He has, however, neither disputed the authenticity of the said letter nor the alleged practice behind .Which the petitioners seek shelter. The petitioner's learned counsel, as regards the continuation and protection of such practice have relied upon Nazeer Ahmed v. Pakistan CE&LC PLD 1988 SC 370, Asian Food Industries Ltd. v. Pakistan 1985 SCM R 1753 and Eduljee Dinshaw Ltd. v. Income Tax Officer 1990 PTD 155, the rule spelt out in these precedents is well-settled and is shored up by manifest equities. Such is that where a particular executive construction has held the field for a considerable period of time many a rights are thrown up in the process based upon continued, reliance thereupon. Departure from such a construction cannot be casually allowed because, in the process, vested rights may come to be disturbed or destroyed. Mere executive change of opinion in the context, therefore, is not easily to be upheld. Indeed an element of estoppels appears to be invokable in such situations. Even so, a manifestly wrong construction not merely placed upon rules or instructions but upon the statutory law itself cannot also be easily brooked. Having said as much and irrespective of the above practice, about which one is not wholly convinced, these petitions can be disposed of upon quite another plane, that is, upon the correct construction of section 50(5) of the Income Tax Ordinance. The relevant provision is reproduced hereunder:
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(5) Notwithstanding anything contained in any law for the time being in force,--- (a) the Collector of Customs shall, in the case of every importer of goods, collect advance tax computed, on the basis of the value of such goods as increased by the customs duty and sales tax, if any, levied thereupon, at the rates specified in the First Schedule, and credit for the tax so collected in any financial year shall, subject to the provisions of section 53, be given in computing the tax payable by such importer for the assessment year commencing on the first day of only next following the said financial year, or in the case of an assessee to whom section 72 or section 81 applies, the assessm ent year, in which the said data, as referred to therein, falls, whichever is the later; (b) the tax under clause (a) shall be collected in the same manner and at the same time as the customs duty, as if such goods (even though exempt from such duty) were liable to such duty, and all the provisions of the Customs Act, 1969 (IV of 1969) shall, so far as may be, apply accordingly." It has been contended before us that the word "levied" in clause (a) of subsection (5) has been substituted for the word "leviable" the substitution having been brought about by the Finance Act, 1995. Upon this premise and even generally it is argued that because the goods imported for the purpose of the free duty three establishments are never technically imported, the cut off point of time for the levy of the customs duty never materializes and that being so no occasion whatever arises for the realization of the withholding tax under section 50(5) of the Income Tax Ordinance. The argument of Mr. Mansoor Ahmed Khan, fully subscribed. In the first place, the word "levied" which has been substituted for the word "leviable" in clause (a) of section 50(5) of the Ordinance involves a completed act as against an act which may still be in contemplation. It envisages a situation where actual and effective levy is of significance rather than a mere possibility thereof, distinguished by Mr. Jawaid Farooqui as actual liability and mere taxability. Withholding tax in this background cannot be worked out unless the customs duty and sales tax are determined, even if exempted. Looked at in such a scenario the liability for recovery of withholding tax moves so much further away. This is augmented by the fact that the actual collection of withholding tax in terms of clause (b) of section 50(5) has to be made "in the same manner and at the same time as the customs duty", exemption or no exemption being immaterial and, the crucial elements being the, "manner" and the "time" in or at which the Customs duty is notionally to be collected. Such "manner" and such "time" never technically imported or the time to collect customs duty never arrives, such time for effecting collection or realization of withholding tax under section 50(5) would also to the same extent stand removed in the time scale. In this view of the matter, the petitioner cannot be subjected to recovery of withholding tax in contemplation of the said provision, namely, section 50(5) of the Income Tax Ordinance. Orders to such effect issued by the respondents are to that extent invalid and are declared to be so. While I would allow these petitions in the foregoing terms, it remains to be said that such collections of withholding tax as have already been made would remain subject to appropriation or deduction of normal income tax under the applicable rules from the petitioners even though no further recoveries or realisations of withholding tax may be made from them. The grant not to carry any costs. RAJA QURESHI, J.---I have had the advantage of reading the erudite judgment of my Lord the Chief Justice, and with my profoundest respect for my Lord the Chief Justice, I am unable to persuade myself to subscribe to the said judgment. Hence following are my reasons for my disagreement to the proposed judgment. The petitioners in all the Constitutional petitions hereinabove are engaged in the business of running Duty Free Shops. Their common grievance is that in deviation of the respondents to collect withholding tax at the statutory rate of 5% from the petitioners under section 50(5) of the Income Tax Ordinance, 1979, the primary contention raised before us is that adopting a mode in procedure
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which is not in conformity with clause (b) of section 50(5) of the Income Tax Ordinance, 1979. It is not disputed before us that petitioners hold a private warehouse licence and such Duty Free Shops have been established in Pakistan to facilitate returning Pakistanis to purchase permissible goods under the baggage rules and also to streamline the prevalent system of sales at the International Airport Terminals. In sum and substance the petitioners are permitted to import goods and store the same in private bonded warehouses to which duly licensed procedure is adopted for storing and removing such imported goods from the bonded warehouse in conformity with the provisions of the Customs Act 1969, whereby no goods are taken out of any warehouse except on clearance for home consumption or for removing to another warehouse or as otherwise provided in the Customs Act, 1969. The value and the rate of duty applicable to any imported goods cleared from a warehouse under section 104 of the Act is the value and rate of duty enforced on the data on which the bill of entry for clearance of such goods is presented under the provisions of the Customs Act. As such the contention of the petitioners before us is that till such time as the goods remain warehoused or are exported while warehoused or are removed to another warehouse no customs duty is payable on the same. The contention of the petitioners is that because the goods so warehoused are not technically imported into Pakistan therefore, the goods of the petitioner cannot be subjected to the payment of Customs duties and consequently to the withholding tax under section 50(5) of the Income Tax Ordinance. They place their reliance on a letter (page 159 of the Petition No.847) issued by the Central Board of Revenue which for the purposes of ready reference is reproduced hereinunder:--- "Government of Pakistan Central Board of Revenue (Revenue Division). C.N. ITJ-1-(8)/98 Islamabad 29th July, 1992. From. Mr. Muhammad Majid Qureshi. Second Secretary (Withholding Tax). To, Messrs AIR Rianta International Pakistan (Pvt.) Limited. Sub: Exemption of ADD Import Level for duty free shops at Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi. I am directed to refer to your letter, dated 26th July, 1992 on the above subject and to say that since steadily the goods are not being technically imported into Pakistan and are being placed only in the bonded area the provisions of withholding under section 50(5) will obviously not apply as is the existing practice in case of goods placed in the bonds. Income Tax will, however, be payable on income profits earned during the year. (Sd.) For (Muhammad Majid Qureshi) IInd Secretary". As such, based on the aforementioned letter, the contention made by the petitioners before us is that the provisions of withholding tax under section 50(5) will not apply as is the existing practice in case of goods placed in the bonds. The aforementioned is the executive interpretation which, according to the petitioners had held the field for a considerable period of time whereby rights of the petitioners have been created. Any departure from such practice and "executive opinion cannot be allowed because the vested rights which may have been accrued are likely to be disturbed and destroyed". In order to resolve the controversy in the aforementioned circumstances, questions which perhaps would need to be answered are as follows:--- (1) What is import? (2) Whether letters of the Central Board of Revenue or its circulars could impose or extinguish the levy fixed by the statute?
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(3) Whether "same time and in the same manner" would as per judicial interpretation fall in line in conformity with the letter issued by the Central Board of Revenue? (4) Whether liability as fixed under section 50(5) of Income Tax Ordinance, 1979 to pay withholding tax on the goods having been imported could be deferred for collection or not? (5) Whether collection of a tax is only an incident of administration? The word "import" under the provisions of the Customs Act 1969 has been interpreted by the Supreme Court of Pakistan elaborately in East West Steamship Company v. Collector of Customs PLD 1976 SC 618. Their Lordships have interpreted the Word "import" as follows:-- - "The word 'import' carries the natural meaning of 'bringing in' and has no technical meaning. Mr. A.K. Brohi construed the word 'import' as entailing the entire process of, filing Bill of Entry, discharging from the vessel at a Wharf, assessment of value of the goods and duty payable on them. We, however, see no warrant for placing this artificial meaning on the word `import'. In Black's Law Dictionary, 'importation' is defined as `the act of bringing goods and merchandise into a country from a foreign country' and imported in general, has the same meaning in the Tariff laws that its etymology shows, in Porto, to carry in, to import is to bear or carry into. An imported article is one brought or carried into a country from abroad. In Wharton's Law Lexicon 'import' is given the meaning goods or produce brought into a country from abroad. In order to explain Entry No 80.01 of the Tariff Act under which duty of 15% is levied on vessels exceeding 250% tons gross weight, the appellants conceded that ships brought from foreign countries for inland use were imported within the Sea Customs Act. It followed that machinery sections of the Sea Customs Act applied to their importation though they were not imported or home consumption, nor unloaded and wharfed etc." The above interpretation is in relation to section 20 of the Sea Customs Act, 1878 which is corresponding to section 18 of the Customs Act, 1969. The above interpretation lays down the rule that as soon as "goods" land at Karachi Port, they become dutiable. Hence the procedure in section in relation to 'bill of entry, home consumption, in bonding and rate of duty etc. Are irrelevant. The above principle will apply only when goods are exempt from duty because as held by the Supreme Court in Alsamrez's case 1986 SCM R 1917 and at page 1923 the reproduction with the following passage would be profitable:--- "From the above it would be seen that the concept of exemption presupposes a liability and is a grant or immunity from the payment of duty which would otherwise be attracted in respect of the goods. It has accordingly been held that 'non-liability' and `exemption' are different concepts, the first connotes that the subject was never in the tax net, while the latter connotes that it was, but has been permitted to escape. Re: Sharpe Queen's Land Trustees Ltd. v. Commissioner of Stamp Duties 1944 St. R. Od.26 at page 33. Accordingly it would appear that mere grant of exemption under section 19. Does not have the effect to modifying or altering the levy of duty under section 18 which continues to be in force. But the only legal duty that accrues under section 18 on the importation of dutiable goods is wiped off to the extent of exemption. The two sections, therefore, clearly operate independently and the exercise of power under section 19, is distinct from the statutory provision contained in section 18 whereby the charge is created by Statute itself. In this context, it is not difficult to understand that section 30 has no material bearing on the controversy before us and its provision would not be violated either .Way on the determination of question whether exemption from payment of duty earlier granted was applicable to the case of the appellants or not." Upon examining section 50(5), the following words have been employed in the Statute from which the intention of Legislature could be gathered:- "The tax under clause (b) shall be collected in the same manner and at the same time as the customs duty, as if such goods (even though exempt from such duty) were liable to such duty and
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all the provisions of the Customs Act, 1969 (Act IV of 1969) shall, so far as may be, apply accordingly." Indeed, same words were used and employed in proviso to section 3(4) of the Sales Tax Act, 1951, which again for the purposes or ready reference are reproduced hereinunder:--- "Provided that, in case of goods mentioned in clause (a) of subsection (1), the tax shall, where the board so directs, be payable at the same time and in the same manner as the duty of Excise under the Central Excises and Salt Act, 1944 (I of 1944) and the provisions of the said Act and the rules made thereunder shall, so far as may be, with necessary modifications apply for the purposes of this Act as they apply for the purposes of the said Act." The aforementioned proviso came to be interpreted and scrutinized by a Division Bench of our Court in Messrs English Biscuit Manufacturers Limited v. The Assistant Collector 1991 PTD. 478 and it was held that "collection" or "recovery" and "assessability" of sales tax are two different concepts. Since in this case, the Central Excise Authorities could only collect sales tax, they could not make any 'assessm ent' for tax. It is therefore, in this perspective that under section 50(5) of the Income Tax Ordinance also, the Customs Authorities can only 'collect' the income-tax through relevant provisions of Customs Act, 1969. They are not concerned with the 'assessment' or 'levy' of income-tax which is the function of the Income Tax Authorities, such cannot therefore, the dependent upon the procedural sections of the Customs Act, 1969. It may be pertinent to state that the tax deducted under section 50(5) becomes a final liability of income-tax under subsection (4) of section 80-C of the Income Tax Ordinance, 1979. Once it is the final income-tax liability, it would be profitable to state that the petitioners have themselves considered their goods as imports and deductions under section 50(5) by the Customs Authorities comes to operate as the final income-tax liability and cannot be assessed any further under section 80-C(5). Having dilated upon as to what is an import and what is the interpretation of the words "at the same time and in the same manner" and as to what is 'collected' and 'levy' I would not like to embark upon as to the legal value of the letter of the C.B.R. Or for that matter its circular whether such letter could impose or extinguish the levy fixed by the Statute. In order to ascertain this aspect I would rely on 1992 SCMR 1232 (Messrs Central Insurance Company and others v. The Central Board of Revenue, Islamabad). Upon examining the judgment I am of a firm view that the Central Board of Revenue does not figure in the hierarchy of judicial forum provided for under the Ordinance and therefore, the interpretation placed by it to the provisions of the Ordinance, at the most can be treated as an administrative interpretation and not a judicial decision to qualify for treatment meted out to the petitioners herein. It has been stated that the goods are not technically imported into Pakistan. It may, at best be an administrative opinion, liable to be varied/modified and, therefore, from its very nature, cannot be treated to be legal interpretation and in the event was to treat an administrative interpretation of a provision of law then surely it will lead to uncertainty and would cause disbalance in the procedure. Reliance is placed on paras. 21, 22 and 23 of the above reported judgment (Central Insurance Company v. Central Board of Revenue). In the light of questions framed by me and the law laid down by the Supreme Court of Pakistan, I have no choice, but to arrive at a conclusion that goods brought into Pakistan by the petitioners are nothing but import of such goods. I am further of the view that executive interpretation of a Statute is to be ignored if there is judicial E interpretation of such Statute by the Court holding the field. Hence the words "same time and in the same manner" would require the petitioners to pay tax under section 50(5) (b) of Income Tax Ordinance, 1979 as it F stood levied. Even if such imported goods are exempt from payment of Customs duties or not upon import. The question
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therefore, which arises as to whether the levied tax under section 50(5) (b) is an incident of administration and collection of the same could be deferred or is to be collected immediately upon import of goods. As there is concept of G deferment on account of inbonding imported goods under the Customs Act, surely recovery of customs duties could be deferred but there is no such concept available for deferment of income-tax under section 50(5)(b) of the Ordinance, 1979, therefore, the same are to be collected immediately upon import of such goods in Pakistan. Consequently, the petitions fail and are hereby dismissed. HIGH COURT OF SINDH, KARACHI DR. GHOUS MUHAMMAD, J.---These matters have been placed before me as a referee Judge in view of conflicting opinions authored by Wajihuddin Ahmed, C.J., as he then was, and Raja Qureshi, J., as he then was. The precise controversy is as to whether the goods which are sent to the bonds/warehouses or Duty Free Shops, after actual physical import, are to suffer income-tax under section 50(5) of the Income Tax Ordinance, 1979 (hereafter referred to as "the 1979 Ordinance") before the same are cleared for home consumption; or whether where clearance for home consumption would be irrelevant and the levy of such advance income-tax becomes payable even at the time when the goods are sent to the bonds. Faced with such legal question, Wajihuddin Ahmed, C.J., as he then was, has opined that no advance income-tax under section 50(5) can be levied or deducted at the time when the goods are sent to the bonds and are not cleared for home consumption. On the other hand, Raja Qureshi, J, as he then was, in his dissenting judgment has come to conclusion that the advance income-tax under section 50(5) becomes payable even at the time the goods are sent to bond and are actually cleared for home…
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