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2018 P T D 821 - Lawyers of Pakistan

2018 P T D 821

2018 P T D 821

[Lahore High Court]

Before Ijaz ul Ahsan, J

KOHINOOR SUGAR MILLS

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No. 4691 of 2010, heard on 27th May, 2015.

(a) Interpretation of statutes---

----Amendment in law---Effect---Where any statutory law is changed there is a presumption that it affects change in legal rights to the extent provided by such amendment---Amending provisions have to be read along with un-amended provisions as they are part of the same Act.

[Case-law referred].

(b) Income Tax Ordinance (XLIX of 2001)---

----Ss.177 & 214-C [inserted through Finance Act (XVI of 2010)]---Audit---Commissioner and Federal Board of Revenue, powers of---Scope---Power of Commissioner under S.177, Income Tax Ordinance, 2001 is independent and exercisable subject in a different set of conditions on basis of record before him as compared to powers available to Federal Board of Revenue in terms of S.214-C of Income Tax Ordinance, 2001 which are not record based, consists of power to select by random or parametric ballot and not subject to same conditions, checks, balances and an obligation to confront and disclose reasons and provide opportunity to taxpayer to defend himself as have been imposed on Commissioner---Such are two independent powers, fundamentally different in nature, genesis, origin, antecedents and conditions and can coexist independently and be exercised independent of each other but are not mutually exclusive and are not meant to be so as clearly and unambiguously declared by legislature by way of Explanation inserted through Finance Act, 2013---No conflict or inconsistency existed between S.177 & S.214-C of Income Tax Ordinance, 2001 and does not require any reconciliation.

(c) Income Tax Ordinance (XLIX of 2001)---

----Ss. 114(2)(b), 120(1), 122, 177 & 214-C [inserted through Finance Act (XVI of 2010)]---Selection of taxpayer for audit---Prejudice caused to taxpayer---Scope---Mere selection of taxpayer for audit and calling of books of accounts to verify version declared in his return under USAS, which is main theme on which entire structure of Income Tax Ordinance, 2001 has been built does not cause any injury/prejudice to taxpayer.

[Case-law referred].

(d) Interpretation of Constitution---

----Wisdom of legislature---Judicial restraint---Applicability---Judicial restraint needs to be exercised in questioning wisdom of legislature in enacting a law or an amendment therein subject to caveat that it has been made competently and without in any manner transgressing limitations imposed by Constitution.

(e) Interpretation of statutes---

----Retrospective effect---Clarification by legislature---Scope---If there is doubt about true interpretation of a provision, it is open to legislature to clarify its intent by introducing amendments in law which may also be undertaken by adding an Explanation---Such Explanation is for all intents and purposes clarificatory and declaratory in nature and due effect must be given to it---Such clarificatory/declaratory Explanation lawfully inserted into a statute may operate retrospectively.

[Case-law referred].

(f) Income Tax Ordinance (XLIX of 2001)---

----Ss. 177 & 214-C [inserted through Finance Act (XVI of 2010)]---Notice of audit---Non-mentioning of reasons---Commissioner and Federal Board of Revenue, powers of---Scope---Petitioners were taxpayers and they were aggrieved of notices issued under S.177 of Income Tax Ordinance, 2001 by Commissioner to conduct their audits---Plea raised by taxpayers was that no reasons had been assigned in notices for selection of their cases for audit---Validity---Explanation added to Ss.177 & 214-C of Income Tax Ordinance, 2001 were clarificatory/declaratory in nature and had retrospective effect---Commissioner was at relevant time legally competent and duly authorized to invoke provisions of S.177(1) of Income Tax Ordinance, 2001 to issue notices in question---Powers of Commissioner under S.177 of Income Tax Ordinance, 2001 were subject to restrictions imposed by statute as well as judgments of superior courts---Commissioner was not only required to disclose reasons to taxpayer in writing for calling his record, documents, books, etc., but was also to grant him an opportunity to defend himself by affording him a hearing---Such was only after objections had been decided through a reasoned order that Commissioner could, if necessary, proceed with audit---No prejudice was caused to petitioners on account of non-disclosure of reasons at initial stage as same could be disclosed subsequently---Such would adequately meet requirements of natural justice and due process guaranteed to petitioners by law and Constitution---High Court declined to interfere in notices as notices were validly issued by commissioner who had jurisdiction to issue same in exercise of his powers under S.177 of Income Tax Ordinance, 2001 without selection of person for audit by Federal Board of Revenue under S.214-C of Income Tax Ordinance, 2001---Constitutional petition was dismissed in circumstances.

[Case-law referred].

(g) Income Tax Ordinance (XLIX of 2001)---

----Ss. 177 & 214-C [inserted through Finance Act (XVI of 2010)]---Audit---Selection of case by Commissioner and Federal Board of Revenue---Procedure---Taxpayer receiving notice from Commissioner calling for his record for purposes of audit and at same time being selected by Federal Board of Revenue for computerized, random or parametric balloting, only one audit would be conducted as procedure for conducting audit is same in both instances.

(h) Income Tax Ordinance (XLIX of 2001)---

----Ss. 177 & 214-C [inserted through Finance Act (XVI of 2010)]---Audit---Scope---Provisions relating to audit are germane to assessment of taxable income of assessee and are machinery provisions which should be construed in a manner which makes the machinery procedure workable---Audit provisions being machinery provisions, should be liberally construed to ensure that regulatory powers which are designed to keep a check on taxpayers and facilitate recovery of amounts which are lawfully due and payable to State are paid fairly, honestly and transparently---Such provisions are not to be rendered redundant, ineffective and illusionary on basis of technicalities.

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