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2018 S C M R 1131 - Lawyers of Pakistan

2018 S C M R 1131

2018 S C M R 1131

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

The TAXATION OFFICER/DEPUTY COMMISSIONER OF INCOME TAX, LAHORE---Appellant

Versus

Messrs RUPAFIL LTD. and others---Respondents

Civil Appeal No. 723 of 2013, decided on 14th March, 2018.

(Against the judgment dated 29.05.2009 of the Lahore High Court, Lahore passed in W.P. No. 1363 of 2003)

(a) Limitation---

----Law prescribing period of limitation was to be considered as procedural rather than substantive.

(b) Limitation---

----Enlargement of time through an amendment---Where right to commence proceedings had already become time barred then a subsequent enlargement of time through an amendment would be of no avail---With the lapse of prescribed time, the transaction became a past and closed transaction, vesting a party with a right thus accrued which could not be taken away by a subsequent amendment.

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

----S. 221(4)---Income Tax Ordinance (XXXI of 1979) [since repealed], Ss. 62 & 156---Rectification of mistake---Assessment orders passed under the provisions of the repealed Income Tax Ordinance, 1979 ["the assessment orders']---Notices issued by the tax department under S. 221(2) of the Income Tax Ordinance, 2001 requiring the tax payers to show cause as to why their "assessment orders" for the relevant assessment years be not amended/rectified---Question as to whether provisions of S. 221 of the Income Tax Ordinance 2001 could be applied to the assessment orders passed under the provisions of the repealed Income Tax Ordinance, 1979; held, that the assessment order sought to be rectified through the impugned notices were finalized under S. 62 of Income Tax Ordinance, 1979 between May 2001 and June 2002, whereas said Ordinance prescribed a period of four (4) years for rectification of the assessment made under S. 62---Income Tax Ordinance, 1979 was repealed on 30-06-2002, whereafter, in July 2002, Income Tax Ordinance, 2002 came into force---Period of limitation prescribed through S. 156 of Income Tax Ordinance, 1979 had, therefore, not expired at the time of promulgation of Income Tax Ordinance, 2001---Such period during its currency thus stood extended through subsection (4) of S. 221 of Income Tax Ordinance, 2001 which provided a period of 5 (five) years for rectification of mistakes, from the date of the assessment order, sought to be rectified---Procedural amendments applied to all cases which had not become past and closed transactions, therefore, the provisions of S. 221, Income Tax Ordinance, 1979 had been rightly invoked in the present case---Appeal was disposed of accordingly.

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

----S. 221---Income Tax Ordinance (XXXI of 1979) [since repealed], Ss. 9, 10 & 80-D---Rectification of mistake---Notices issued by the tax department under S. 221(2) of the Income Tax Ordinance, 2001 requiring the tax payers to show cause as to why their assessment orders for the relevant assessment years be not amended/rectified by levying surcharge on the tax levied under section 80-D of the repealed Income Tax Ordinance, 1979---Question as to whether surcharge could be levied on the "minimum tax" payable under S. 80-D and other paramateria sections of the repealed Income Tax Ordinance, 1979; held, that income tax in terms of S. 9 of Income Tax Ordinance, 1979 was charged and levied in respect of the total income of the assessee and at the rate specified in the First Schedule, whereas S. 80-D unlike the provision of S. 9 provided for levying "minimum tax" where no tax was payable in terms of the later provision, and in a certain specified situation, also provided for levying and charging tax in excess of what may otherwise be payable under S. 9 of the Income Tax Ordinance, 1979---Section 80-D of the said Ordinance dealt with a situation where either no tax was payable by the assessee, or the tax payable was less than one-half percent of the amount representing its turnover---Both the situations envisioned under S. 80-D did not allow for levying any surcharge, as surcharge was charged on income tax only, whereas in the first of the above situation, no income tax was payable, and in the second what was charged by way of "minimum tax"/"tax", rather than income tax, was already in excess of the income tax payable in terms of S. 9 of Income Tax Ordinance 1979, and therefore there was no justification for levying of any surcharge thereon, more so when all ingredients essentially required for such levy, were clearly missing---Surcharge could not be levied in the present case on the "minimum tax" payable under Section 80-D and other paramateria sections of the repealed Income Tax Ordinance, 1979---Appeal was disposed of accordingly.

Ibrar Ahmed, Advocate Supreme Court for Appellant.

Mian Ashiq Hussain, Advocate Supreme Court for Respondents Nos.1 - 3.

Date of hearing: 31st October, 2017.

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