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Petitioner: THE COMMISSIONER OF INCOME-TAX VS Respondent: MESSRS QUALITY STEEL WORKS LTD.
1988 P T D 338
1988 P T D 338
[Karachi High Court]
Before Ajmal Mian and Haider Ali Pirzada, JJ
THE COMMISSIONER OF INCOME-TAX
Versus
Messrs QUALITY STEEL WORKS LTD.
Income-tax Cases Nos. 101 and 102 of 1983, decided on 9th September, 1987.
(a) Income-tax Ordinance (XXXI of 1979)--
---S. 136(2)--Reference to High Court--Maintainability--Commissioner of Income-tax filing reference to High Court on questions allegedly arising out of order of Income-tax Tribunal who decided the case in favour of Department--Reference, held, was misconceived and dismissed as such.
(b) Income-tax---
---Surcharge--Retained income--Amount of tax, which was already paid could not be treated as part of retained income.
Shaikh Haider for Applicant.
J. H. Rahimtoola for Respondent.
Date of hearing: 9th September, 1987.
JUDGMENT
AJMAL MIAN, J.--These are two inter-connected Income-tax References filed by the Department under section 136(2) of the Income-tax Ordinance, 1979 for the assessment years 1977-78 and 1978-79, whereby the applicant department solicits the opinion of this Court on the following two questions:
"(1) Whether on the facts and circumstances of the case the learned Income-tax Appellate Tribunal was justified in holding that the surcharge was not leviable on the taxes payable by the company.
Whether Income-tax and super-tax are also part of the retained income meeting working capital requirements of the company when the same had already been paid."
2. The brief facts leading to the filing of the above references are that the Income-tax Officers while making the assessment of the above assessment years levied surcharge at 10% on the amounts which were provided for meeting income-tax liability. Against the above order the respondent went in appeal. The learned Appellant Commissioner by his order dated 30-4-1980 set aside the order of the Income-tax Officer and remanded the case. Against the above order the department went in appeal and filed I. T. A. No. 26/ KB of 1980-81 pertaining to the assessment year 1977-78 and I.T.A. No. 27/KB of 1980-81 relating to the assessment year 1978-79. The learned Appellate Tribunal by its order dated 9-8-1982 held "that the provisions made for payment of tax from the total income of the year is treated as retained income and is, therefore, not considered for the purpose of levy of surcharge. So far as the actual payment of 'tax is concerned, the position is that those amounts already stood paid and the assessee on the closing day of the accounts, and as such, such amounts cannot be considered as income retained for the purposes of levy of surcharge."
In the concluding portion of para. 7 the case was remanded to the Income-tax for recomputing the surcharge in the light of the observations contained hereinabove.
However, the applicant filed an application under section 66 (1) of the Income-tax Act, 1922 before the Income-tax Appellate Tribunal for getting reference made to this Court. The above application was dismissed by an order, dated 25-5-1983 on the ground that no specific question was sought to be referred. After that the applicant has filed the present reference under the above provisions of the Ordinance. .
3. We are unable to see as to how the questions quoted herein above have arisen out of the order of the learned Income-tax Appellate Tribunal. As 'a matter of fact the learned Income-tax Tribunal has decided the case in favour of the department by holding that the amount of tax which was already paid could not have been treated as part of retained income. The references are misconceived and the same are dismissed but there will be no order as to costs.
M. B. A./ C-33/ K References dismissed.