Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Syed TAYYAB HUSSAIN RIZVI VS Respondent: FEDERATION OF PAKISTAN, ETC
Court Name: Lahore High Court Judge(s): Asim Hafeez Title: Syed TAYYAB HUSSAIN RIZVI vs FEDERATION OF PAKISTAN, ETC Case No.: Writ Petition No.14506 of 2019 Date of Judgment:2019-04-02 Reported As: 2019 LHC 1204 Result: petition dismissed
Judgment ASIM HAFEEZ, J.:- This judgment shall also decide connected petitions (Appendix-I) wherein similar questions of law have been raised, commonly challenging the legitimacy and legality of demand notices issued claiming payment of levy under the Income Support Levy Act 2013. 2. These petitions arise as a consequence of demand notices issued for recovery of Income Support Levy ('levy'), levied / charged in terms of section 3 of Income Support Levy Act 2013 (Act, 2013) and payable in the manner and at the rate specified therein. Upon promulgation of the Act, 2013, vires thereof was challenged through numerous writ petitions, which petitions were finally dismissed and vires of the Act, 2013 was upheld in terms of the judgment reported as "Sufi MUHAMMAD FARRUKH AMIN v. FEDERATION OF PAKISTAN through Secretary of Finance and 4 others" (2017 PTD 83). Thereafter, demand notices were issued for recovering the levy, along with surcharge accrued thereupon. Act, 2013 was repealed through the Finance Act 2014, section 10 thereof. Writ petitions were decided after the repeal of the Act, 2013, which otherwise support the point t that repeal was neither deemed nor treated as an absolute repeal. Intermittently, notices were issued and same were impugned through writ petitions, all of which are decided through this judgment. Notices were issued to Federal Board of Revenue (BOR) and to the Federation under Order XXVII-A of the Code of Civil Procedure, 1908. 3. The case set-out by the learned counsels for the petitioners was that Finance Act 2014 had repealed Act, 2013, which completely obliterated the Act, 2013, causing it to cease to be a part of body of law, in the absence of any saving clause. Adds that, no demand of levy can be raised on the basis of a dead statute, which would, for all intent and purposes, be deemed and treated as never passed or existed. In these circumstances, there does not arise any question of assessment or recovery. Reliance was placed on judgment reported as "M.C.B. BANK LIMITED, KARACH v. ABDUL WAHEED ABRO and others" (2016 SCMR 108). Further, while submitting written synopsis, following judgments were referred by the learned counsel for the petitioners, which are reported as "IDREES AHMAD and others v. Hafiz FIDA AHMAD KHAN and 4 others" (PLD 1985 SC 376), "ALLAH DEWAYA through Legal Heirs
---
## Page 2
and others v. GHULAM MUSTAFA and others" (1999 YLR 204), "Mst. SIDDICIAN AFZAL and 6 others v. ASSIST COLLECTOR OF CENTRAL EXCISE AND LAND CUSTOMS, FAISALABAD and 2 others" (PLD 2001 LAHORE 78), "NAVEED JAN BALOCH and 3 others v. FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce and 4 others" (2012 CLD 1339). 4. The other objection is regarding the jurisdiction of Officer Inland Revenue - officer who issued notices under reference. The precise argument raised was that without delegation of powers and functions, unto the Officer Inland Revenue, in terms of section 210 of Income Tax Ordinance 2001 (Ordinance of 2001), no notices can be issued, let alone any assessment be undertaken under the Act, 2013. Elaborated that, section 2 (c) of the Act, 2013, defines "Officer Inland Revenue" as "the officer as defined under section 2 (38A) of Ordinance of 2001 " and section 2(38A) of the Ordinance 2001 defines "Officer of Inland Revenue" as "any Additional Commissioner Inland Revenue, Deputy Commissioner Inland Revenue, Assistant Commissioner Inland Revenue, Inland Revenue Officer , Inland Revenue Audit Officer District Taxation Officer Inland Revenue, Assistant Director Audit, or any other officer however designated or appointed by the Board for the purposes of this Ordinance". In the absence of any description regarding conferment of powers and functions in the Act, 2013, and absence of any subsequent notification in terms of section 210, ibid, the notices issued suffer from want of jurisdiction. In these circumstances, no jurisdiction can be exercised vis--vis the persons, class of persons, cases, class of cases and with respect to the area(s) designated. Learned counsel drew attention of the court to various notifications issued in this behalf. Learned counsels sought declaration that notices under reference are issued without any lawful authority and of no legal ef fect. 5. Mr. Liaqat Ali Chaudhry , Advocate, led arguments on behalf of respondent department. It is contended that, notwithstanding the repeal of Act, 2103 through Finance Act 2014, the petitioners are still liable to pay the levy. Adds that, irrespective of absence of saving clause, the liability has accrued and protected, in terms of clause (c) of section 6 of the General Clauses Act 1987 ('GCA '). Learned counsel rebutted the argument of absence / want of jurisdiction. To support submissions, following judgments were relied and referred, which are reported as "COMMISSIONER OF INCOME TAX, PESHAWAR v. Messrs ISLAMIC INVESTMENT BANK LTD.," (2016 PTD 1339), "Mian RAFI-UD DIN AND 6 OTHERS v. THE CHIEF SETTLEMENT AND REHABILITATION COMMISSIONER AND 2 OTHERS" (PLD 1971 SC 252), "COMMISSIONER INLAND REVENUE v. Messrs SHAFI SPINNING MILLS LTD." (2015 PTD 2368), "Messrs AL-HABIB FLOUR MILLS v. COMMISSIONER OF INCOME TAX, MEDIUM TAXPAYERS UNIT, RAWALPINDI" (2008 PTD 1715), "MUHAMMAD ARIF and another v. THE STATE and another" (1993 SCMR 1589), "MUHAMMAD TARIQ BADRA and another v. NATIONAL BANK OF PAKISTAN and others" (2013 SCMR 314), "Messrs PARAMOUNT SPINNING MILLS LTD. v. CUSTOMS, SALES TAX AND CENTRAL EXCISE APPELLATE TRIBUNAL and another" (2012 SCMR 1860) and "LT. Col. NAWABZADA MUHAMMAD AMIR KHAN v. (1) THE CONTROLLER OF ESTATE DUTY, GOVERNMENT OF PAKISTAN, KARACHI AND (2) PAKISTAN, THROUGH THE SECRETARY, MINISTRY OF FINANCE, GOVERNMENT OF PAKISTAN, RAWALPINDI" (PLD 1962 SC 335). 6. Learned counsel appearing for the Federation, pursuant to notice under Order XXVII-A of Code of Civil Procedure 1908, attacked petition on the ground of maintainability . Adds that demand notices cannot be impugned by invoking constitutional jurisdiction, when alternate remedies are available under the Act, 2013. Supported the argument that liability to pay levy survived repeal. Reliance is placed on judgments reported as "SHAGUFT A BEBUM v. THE INCOME TAX OFFICER , CIRCLE-XI, ZONE-B, LAHORE" (PLD 1989 SC 360), "INCOME- TAX OFFICER and another v. M/s CHAPPAL BUILDERS" (1993 SCMR 1108), "AL-AHRAM BUILDERS (PVT.) LTD. v. INCOME TAX APPELLATE TRIBUHNAL" (1993 SCMR 29), "Messrs AMIN TEXTILE MILLS (PVT.) LTD. v. COMMISSIONER OF INCOME TAX and 2 others" (2000 SCMR 201), "DEPUTY COMMISSIONER OF INCOME TAX/WEALTH TAX, FAISALABAD and others v. Messrs PUNJAB BEVERAGE COMPANY (PVT.) LTD." (2007 PTD 1347), "Messrs OCEAN PAKISTAN LTD. v. FEDERAL BOARD OF REVENUE, ISLAMABAD and others" (2012 PTD 1374), "ZEAL PAK INDUSTRIES (PVT.) LTD., KARACHI v. REGIONAL COMMISSIONER, INCOME TAX, KARACHI and 2 others" (2009 PTD 712), "MUGHAL-E-AZAM BANQUET COMPLEX through Managing Partner v. FEDERATIONOF PAKISTAN through Secretary and 4 others" (2011 PTD 2260), "Syed KHALID MEHMOOD
---
## Page 3
BUKHARI v. G.M. (HRO) PTCL and others" (2012 PLC (C.S) 1366, "PAKISTAN TOBACCO COMPANY LTD., ISLAMABAD v. ADDITIONAL COMMISSIONER (UNIT-II), TAXATION OFFICER, LARGE TAX PAYERS UNIT, ISLAMABAD" (2013 PTD 747), "Messrs CASTROL PAKISTAN (PVT.) LTD. through Accountant v. ADDITIONAL COMMISSIONER INLAND REVENUE and others" (2015 PTD 2467), "NORTHERN POWER GENERATION COMPANY LIMITED v. FEDERATION OF PAKISTAN and others" (2015 PTD 2052), "Messrs KASHMIR SUGAR MILLS LTD. v. FEDERATION through Secretary Revenue and others" (2016 PTD 1649), "IRAM SHAHADI v. PRINCIPAL SCHOOL OF NURSING MAYO HOSPITAL, LAHORE and others" (2017 PLC (C.S.) 943) and "RAFIQ UR REHMAN v. FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and 4 others" (2017 PTD 1178). 7. Arguments heard. 8. The issues which surfaced in the course of submissions and requiring adjudication are summarized as follows; i) Since the Income Support Levy Act 2013 (Act) has been repealed through the Finance Act 2014, without a saving clause, therefore, whether any levy can be claimed, charged or collected on the basis of the Act, which allegedly stood obliterated/abrogated completely , from the date of its promulgation. ii) whether the Officer(s) issuing demand notice has the requisite jurisdiction, authority and power to issue notices, claim recovery , undertake assessment, if and where required, in absence of any delegation or of such powers and functions under the provisions of the Ordinance of 2001? iii) whether the petition under reference is incompetent in the wake of alternate remedies available? 9. There is no dispute regarding the fact that repeal of Act, 2013 was simplicitor, and no saving clause or proviso was provided through the Finance Act 2014. The heart of the controversy is that whether the levy, chargeable in terms of section 3 of the Act, can still be claimed or collected irrespective of repeal of this kind - without a saving clause. What was the intention of the legislature while repealing the Act, 2013? There is no cavil to the fact that absence of saving clause in new enactment, reserving rights and liabilities under the repealed enactment, would not be detrimental to the survival of such rights and liabilities under the repealed Act unless a repealing act indicates a contrary intention, rendering section 6 of GCA ineffective and inoperative. To appreciate this, it is expedient to reproduce section 6 of GCA for facility, which reads as; Section 6. Ef fect of Repeal; Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: a) Revive anything not in force or existing at the time at which the repeal takes effect; or b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or d) affect any penalty , forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty , forfeiture or punishment may he imposed as if the repealing Act or Regulation had not been passed". [Emphases supplied] It is also appropriate to reproduce section 10 of Finance Act 2014 (Act No. IX of 2014) - the repealing Act - which reads as 10. Repeal of Income Support levy Act of 2013. The Income Support Levy Act, 2013 is hereby repealed". 10. It is apparent that irrespective of absence of saving clause, section 6 of GCA would provide protection to such rights and liabilities, subject to the conditions therein. The scope of section 6 of GCA has been examined and discussed in a recent Judgment by the August Supreme Court of Pakistan, reported as "COMMISSIONER OF INCOME TAX, PESHAWAR v. Messrs ISLAMIC INVESTMENT BANK LTD.," (2016 PTD 1339) relevant portions wherefrom read as:
---
## Page 4
15. Apart from holding that provisions of section 239(1) of the Income Tax Ordinance, 2001, have retrospective application, the controversy in the presen t case can also be looked at from distinct prospective. The tax laws are a body of rules and regulations under which the State has a claim on the taxpaye rs so that they may pay to the State a part of their incomes at the spec ified rates. This liability to pay income tax accrues on the taxpayer on the last day of the income year/accounting year, though the tax becomes payable after it is quantified in accordance with the procedures laid down in the Income Tax law. Thus a vested right in favour of the State is created at the end of each accounting year, though the exercise of (i) making an assessment on the basis of ascertainable data of income and expenditure, or (ii) revising an assessment order where it is found that there is sufficient material to hold that the original assessment was prejudicial to the interest of the revenue, takes place at some later stage. These procedural exercises are undertaken only with the object of reaching at the correct calculation of yearly income but the real liability to pay tax had already accrued on the last day of the income year i.e. on the last day of the accounting year thereby creating a vested right in favour of the State. It may be understood as an expense that has already accrued but is payable later. Reference can also be made to section 9 of the Income Tax Ordinance, 1979, with regard to the creation of the charge on the basis of income year. Thus seeking revision of a tax return at any subsequent stage has nothing to do with the creation of charge on the tax-payer that has become absolute on completion of the income year/accounting year . 16. In this regard reference can also be made to cases from Indian jurisdiction. In the case of Chatturam v. Commissioner of Income Tax (AIR 1947 FC 32) and in the case of Williams v. Henry Williams Ltd. It was held that the liability of Income Tax was definitely and finally created by the charging section and the provisions of assessment etc. were machinery provisions only for the purpose of quantifying the liability. In the case of Wallace Brothers & Co. Ltd. v. Commissioner of Income Tax (AIR 1948 PC 118 = PLD 1948 PC 67) also it was held ".... the rate of tax for the year of assessment may be fixed after the close of the previous year and the assessment will necessarily be made after the close of that year. But the liability to tax arises by virtue of the charging section alone, and it arises not later than the close of the previous year, though quantification of the amount payable is postponed. " The Indian Supreme Court in the case of Kalwa Devadattam v. Union of India (AIR 1964 SC 880) also held the same in these words- "Under the Indian Income-tax Act liability to pay income-tax arises on the accrual of the income, and not from the computation made by the taxing authorities in the course of assessment proceedings; it arises at a point of time not later than the close of the year of account." 17. In light of the discussion undertaken in the preceding paragraph, it is clear that vested right to claim tax accrues on the last date of accounting year which under the repealed Income Tax Ordinance, 1979, accrued up till 30.06.2002. This right cannot be taken away, even if there had been no saving clause in the Income Tax Ordinance, 2001. Such right, being a vested right, gets automatically protected under the provisions of the general law i.e. section 6 of the General Clauses Act, 1897. This vested right could have been taken away if a specific provision to that effect had been incorporated in the Ordinance, 2001 but that is not the case in the present matter. Thus irrespective of any accounting discrepancy that is sorted out on the basis of the procedural provisions of the income tax law at any subsequent stage, the charge of income tax on the taxpayer stands established on the last day of the income year/accounting year. In the present case, the last day of the last income year covered under the repealed Income Tax Ordinance, 1979, was 30.6.2002, therefore, on all income years that ended on or before 30.6.2002 the charge to recover tax had already been created on or before such date. In the case of Muhammad Arif v. State (1993 SCMR 1589) it was held as follows:- "From the above cited cases, it is evident that there is judicial consensus that where a law is repealed, it will not inter alia affect any investigations, legal proceedings or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the law had not been repealed. This is so, inter alia, because of section 6 of the General Clauses Act, 1897 (which corresponds to section 4 of the West Pakistan General Clauses Act, 1956), in the absence of any contrary intention manifested in the relevant statute."
---
## Page 5
18. Following passages from Indian jurisdiction in the case of State of Punjab v. Mohar Singh Pratap Singh (AIR 1955 Supreme Court 84) can also be referred with considerable advantage:- "Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material." 19. Thus the vested right of the state in the form of a charge on the income of an assesse that accrues on the last date of an income year is also protected independently under the provisions of general law i.e. Section 6 of the General Clauses Act and no dependence on saving clause was required." [Emphasis supplied] 11. It is apt to refer to another judgment on the point in issue, reported as "TAZA KHAN and others v. AHMAD KHAN and others" (1992 SCMR 1371 ). Relevant portion reads as under: "The entire position of the repealing and re enacted laws and their many amendments have not been presented in a comprehensive from; and lastly , in this behalf, even if there is no saving clause the relevant provisions of the General Clauses Act would come into play ."[Emphasis supplied] 12. It is clear that in the absence of any contrary intention in the repealing act, irrespective of saving clause, section 6 of GCA would protect the rights and liabilities accrued, precisely in terms of clause (c) of section 6 of GCA. There is nothing to indicate in the repealing act that section 6 of GCA would not apply. Reference is also made to a judgment reported as "Karam Singh Sobti and another v. Sri Pratap Chand and another" (1964 AIR (SC) 1305), relevant portion whereof is reproduced hereunder: "If the repeal stood by itself the provisions of the General Clauses Act (X of 1897) would have applied with regard to the effect of the repeal and the repeal would not affect the previous operation of any enactment repealed or anything duly done or suffered thereunder or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. The provisions of the General Clauses Act will not, however, apply where a different intention appears from the repealing enactment." [Emphasis supplied] In view of the above, the argument that right accrued in terms of section 3 of the Act, 2013 stood obliterated / abrogated upon repeal is repelled. 13. There is another aspect of the case. Whether the liability to pay the levy, as chargeable in terms of section 3 of Act, 2013, created or established a vested right in favour of the department? It is expedient to examine section 3 of the Act - the charging section - section 4 of Act, 2013 and Rule 4 of Income Support Levy Rules 2013 (Rules of 2013), which are reproduced hereunder as; "3. Charge of Levy --- Subject to the provisions contained in this Act, there shall be charged for every tax year commencing on and from tax year 2013 a Levy, in respect of value of net moveable assets held by a person on the last date of the tax year at the rate specified in section 9 and in the manner specified hereunder ." "4. Time and manner of payment of levy --- A person who is liable to pay the Levy under this Act shall pay the Levy along with wealth statement." Rule (4) Time of payment of levy ---(1) A person liable to pay the Levy under the Act shall pay the Levy on the basis of the wealth statement on or before the due date of filing of return. (2) Where a person is not required to file return, the Levy shall be payable, along with wealth statement, at the time provided in sub-section (4) of section 1 18 of the Ordinance ".[Emphasis supplied] 14. In terms of section 3 of the Act, 2013, tax shall be charged for every tax year commencing on and from tax year 2013. In terms of clause (g) of sub-section 1 of section 2 of Act, 2013, tax year is defined as 'the tax year as defined in
---
## Page 6
clause (68) of section 2 of the Ordinance. In terms of clause (68) of section 2 of the Ordinance, tax year is defined as 'the tax year as defined in sub-section (1) of section 74 and, in relation to a person, includes a special year or a transitional year that the person is permitted to use under section 74". And section 74 of the Ordinance provides that the 'Tax year; (1) For the purpose of this Ordinance and subject to this section, the tax year shall be a period of twelve months ending on the 30 day of June and shall, subject to sub section (3), be denoted by the calendar year in which the said date falls". 15. It is clear from cumulative reading that levy becomes chargeable on 30 day of June 2014 [period of 12 months for the tax year 2013 shall be reckoned from 1 day of July 2013 to 30 day of June 2014]. It means that liability to pay levy would accrue on 30 day of June 2014, in terms of charging section, i.e. section 3 of Act, 2013, followed by assessment and collection procedures to be carried as prescribed under the Act, 2013, in terms of the machinery and collection provisions. It is essential to ascertain that when the repealing act came into effect. It is appropriate to refer to section 1 of Act No. IX of 2014 - the repealing Act - which reads as; (1) This Act may be called the Finance Act, 2014. (2) It extends to the whole of Pakistan. (3) It shall come into force from the first day of July, 2014, except subsections (11) and (12) of section 2 and subsections (2), (9), (10), (11) and (12) of section 4 which shall have effect from the next day of assent given to this Act by the President of the Islamic Republic of Pakistan". [Emphasis supplied] 16. Irrespective of the assent by the president on 25 June 2014, section 10, would, for all intent and purposes, became effective from the first day of July, 2014, which established that the liability accrued on 30 day of June 2013, stood protected and created a vested right in favour of the department. The position in fact reinforced the intention regarding applicability of section 6 of GCA. A reference is made to judgment, referred by the learned counsel representing the department, reported as "Mian RAFI-UD-DIN AND 6 OTHERS v. THE CHIEF SETTLEMENT AND REHABILIT ATION COMMISSIONER AND 2 OTHERS" (PLD 1971 SC 252), relevant portion is reproduced as under: "This submission overlooks the well-settled legal principle that the substantive rights vesting in any one under the repealed enactment are not lost or affected in the least by the repeating enactment. This is clearly provided in clause 6 of the General Clauses Act, 1897. Even the proceedings pending on the date of repeal stand protected by the said Act. Thus, there is no substance in the above contention of the learned counsel."[Emphasis supplied] 17. Second limb of objections relate to the lack of jurisdiction of the Officer(s) of Inland Revenue to issue notices under the Act, 2013. It was argued that Act, 2013 per-se does not confer jurisdiction for issuing recovery notices or effect recovery of the levy. And no such power(s) and function(s) was delegated under section 210 of Ordinance of 2001, either. It is argued that in the absence of such delegation no power(s) or function(s) can be exercised by the Officer(s) of Inland Revenue, as defined in the Act, 2013. The argument is misconceived and negates the legislative intent, as expressed in Act, 2013. In terms of clause (c)…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.