1991 P T D 1028

[Supreme Court of Pakistan]

Present: Zaffar Hussain Mirza, Naimuddin and Sajjad Ali Shah, JJ

COMMISSIONER OF INCOME-TAX, CENTRAL ZONE, `A',

KARACHI---Appellant

Versus

Messrs PHOENIX ASSURANCE CO. LTD.---Respondent

Civil Appeals Nos.197 and 198-K of 1984, decided on 12/08/1991.

(On appeal from the judgment/order of High Court of Sindh at Karachi dated 8th October, 1983 in I.T.Rs. Nos.699 and 700 of 1972).

(a) Income-tax Act (XI of 1922)---

---First Sched., R. 6---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to consider the question, inter alia, as to whether reserve for taxation was not expenditure and therefore, R.6 of the First Sched. of the Income-tax Act, .1922 was not applicable to the matter.

Per Zaffar Hussain Mirza Naimuddin and Sajjad Ali Shah, JJ. agreeing---

(b) Income-tax Act (XI of 1922)---

----First Sched., R.6 & S.10(7)---Insurance Act (X of 1938), Ss. 11, 15 18, 21 &, 102---Jurisdiction of Income Tax Officer---Taxation reserve being not expenditure, Income Tax Officer had no jurisdiction to examine or exclude same from the profit and loss account and the Profit and Loss Appropriation Account approved by the Controller of Insurance under the Insurance Act, 1938---Finality was attached to the accounts submitted by the assessee insurance company under the Insurance Act, 1938 to the Controller of Insurance, and the limited jurisdiction vesting in the Income Tax Officer was only to exclude expenditure from the balance profit in such accounts which was not permissible under S.10 of Income Tax Act, 1922---Income Tax Officer was not competent to upset the integrity of the accounts submitted by the assessee under the Insurance Act, 1938 by applying the ordinary rules for computation of profits and gains and for assessment of tax thereon in the light of provisions of Income Tax Act, 1922 in respect of the income in regard to the head `business'---If the item in question did not in substance and essence constitute expenditure, it would be out of power of income Tax Officer to apply the provisions of First Schedule, R.6, Income Tax Act, 1922 to exclude and addback the same to the balance of profits in order to bring it within tax net.- --[Jurisdiction].

Under section 11 of the Insurance Act, 1938 every insurance company has to prepare at the expiration of each calendar year a balance-sheet, a profit and loss account, and a revenue account to prescribed form to be authenticated. Under section 15 the audited accounts and statements referred to, have to be furnished to the Controller as returns. Section 18 of the said Act require every insurance company to furnish to the Controller of Insurance a certified copy of every report on the affairs of the concern which is submitted to the members or policy holders of the insurer. Section 21, then, enables the Controller to call for such further information, from the insurer in respect of the return furnished by it, if he feels that the same is inaccurate or defective in any manner. He can examine the books of accounts, registers and documents as well as any officer of the insurer. He is then empowered to decline to accept any return unless the inaccuracy has been corrected or the deficiency has been supplied. In case he so declines to accept any return, the insurer shall be deemed to have failed to comply with the provisions of section 15 relating to the furnishing of returns. It is in this context that finality has been given to the accounts for purposes of rule 6 of the First Schedule of the Income Tax Act, 1922.

By section 102 of the Insurance Act, 1938 the law provides for a penalty in case of default by any insurer in complying with or acting in contravention of any requirement of the Insurance Act,

Finality attached to the accounts submitted by the assessee insurance company under the Insurance Act to the Controller of Insurance, and the limited jurisdiction vesting in the Income Tax Officer is only to exclude expenditure from the balance of profits in such accounts which is not permissible under section 10 of the Act. Under subsection (7) of section 10 of the Act the profits and gains of any business of Insurance and the tax payable thereon, is required to be computed in accordance with the rule; contained in the First Schedule to the Act. However, it is important to note, that the enacting part of this subsection is subjected to the non obstante clause excluding the application of section 8, 9. 10, 12 or 18 of the Act. Therefore, it is quite apparent that the main provisions with regard to computation of profits and gains in the Act have been excluded including section 10. It is only by virtue of Ride of the First Schedule that, section 10 has been brought back for the limited purpose of adding back expenditure not permissible under that section, Therefore, the Income Tax Officer, in the face of these statutory provisions. is not competent to upset the integrity of the accounts submitted by the assessee under the Insurance Act, by applying the ordinary rules for computation of profits and gains and for assessment of tax thereon, in the light of provisions of the Income Tax Act in respect of the income in regard to the head `business' The contention therefore that the return filed by the assessee was not in accordance with Regulation 1 of Part I of the Second Schedule to the Insurance Act is untenable. Similarly the submission that `reserve' cannot become expenditure even though it may be mentioned on the debit side, because the money is not paid out irretrievably, is also irrelevant. On the contrary if the item in question did not in substance and essence constitute expenditure, it would be out of the power of the Income Tax Officer to apply the provisions of Rule 6 to exclude and addback the same to the balance of profits in order to bring it within the tax net.

The accounts submitted under the Insurance Act were complete and their authenticity and integrity could not be questioned by the Income Tax Officer, with reference to any provisions of the Insurance Act.

An examination of the provisions of the Insurance Act would reveal that the same makes detailed provisions to ensure the true evaluation of assets and the determination of the true balance or profits of an insurance business, so that rule 6 of the First Schedule to the Act has to be construed in the background of those provisions.

?

On the language of First Schedule, Rule 6 of Income Tax Act, 1922 the Income Tax Officer is bound to accept the balance of profits disclosed by the annual accounts, copies of which have been submitted to the Controller of Insurance. He can only adjust this balance so as to exclude from it any expenditure other than expenditure which may under the provisions of section 10 of Income Tax Act, 1922 be allowed for in computing the profits and gains of a business. As reserves which were added back to the balance of profits by the Income Tax Officer were not expenditure, the Income Tax Officer was not competent to do so.

There was thus no substance in the contention that the combined effect of section 10(7) read with Rule 6 of the First Schedule of the Act, was that the Income Tax Officer was vested with the power to probe into the accounts submitted by the insurance company, with a view to determining the real nature of any item of such accounts, for purpose of excluding it in order to adjust the balance of profits.

Income Tax Officer did not have the power to hold that the taxation reserves were not liable to be mentioned on the debit side of the accounts submitted under the Insurance Act, for the reason that, he could not travel beyond the provisions of the Income Tax Act and modify the accounts with reference to the provisions of the Insurance Act.

Commissioner, Income Tax v. Alpha Insurance Company Limited PLD 1981 SC 293; I.T.C. No.326 of 1974; Commissioner of Income Tax v. New Jubilee Insurance Company Limited ITC Reference No.221 of 1972; Indian Molasses Co. v. Commissioner of Income Tax (1959) 37 ITC 66; Indian Molasses Co. (Private) Ltd. v. The Commissioner of Income Tax, West Bengal AIR 1955 SC 1049; Habib Insurance Co. Ltd. v. Commissioner of Income Tax, (Central), Karachi PLD 1985 SC 109; Commissioner of Income Tax v. Calcutta Hospital and Nursing Home Benefits Association Ltd. (1965) 57 ITR 313 and Hirjina & Co. (Pakistan) Ltd. v. Commissioner of Sales Tax 1971 SCMR 128 ref.

Per Naimuddin, J.; Zaffar Hussain Mirza and Sajjad Ali Shah, JJ. agreeing---

The taxation reserve is not expenditure, therefore, Income Tax Officer had no jurisdiction under the law to examine or exclude it from the profit and loss account and the Profit and Loss Appropriation Account, approved by the Controller of Insurance under the Insurance Act, 1938.

There was a lacuna in Rule 6 of the First Schedule to the Income Tax Act, 1922 which was first plugged in when the Income Tax Ordinance, 1979 was promulgated by providing in Rule 5 of the 4th Schedule thereof the word `allowance'. This rule has further been amended by Finance Ordinance (XXV of 1980).

The items on: the income side of the Profit and Loss Account and Profit and Loss Appropriation Account must relate to income whether actually received or not and the items on the expenditure side must relate to expenditure whether actually paid or not. In the Form central taxes on insurance profit have to be mentioned but it is not mentioned whether it is those taxes which have been paid or which are estimated to be paid.

It was for the Controller to see that the amount though, 'mentioned as taxation reserve, was properly provided as the tax liability at the time of submission of accounts to the Controller of Insurance might not be known. If the Controller had failed to check the accounts, the Income Tax Department was not without remedy. It could have invited the Controller to exercise his powers under section 21 of the Insurance Act, 1938 and called for the necessary particulars and information. If he had failed to do so, the Department was again not without remedy against him.

Shaikh Haider, Advocate Supreme Court and Muzaffar Hassan, Advocate-on-Record for Appellant.

Naeem Pasha, Advocate Supreme Court and A.S.K. Ghori, Advocate-on?-Record for Respondent.

Date of hearing: 19th June, 1991.

JUDGMENT

ZAFFAR HUSSAIN MIRZA, J.---These two appeals by leave of this Court arise out of a common order of a Division Bench of the Sindh High Court, dated 8th October, 1983 disposing of two Income-tax References under section 66 of the Income Tax Act, 1922. As these references relate to the same question of law and arise out of identical facts between the same parties, this judgment will dispose of both these appeals.

The respondent is a branch of a foreign Insurance Company, which carries on non-life Insurance business in Pakistan. The two references related to the assessment years 1969-70 and 1970-71.

The point in controversy in this case is the allow ability or otherwise of the provision for taxes charged to the Profit and Loss account prepared in Form `B' Part Il of Second Schedule prescribed under section 11 of the Insurance Act, 1938 read with regulations contained in Part `I' of the Second Schedule of the Insurance Act, 1938. The liability to tax under the Income Tax Act, 1922 is to be worked out in accordance with the provisions contained in Rule 6 of the First Schedule read with section 10 of the Income Tax Act, 1922.

The facts are that the respondent submitted income-tax returns alongwith a copy of the Annual Accounts submitted to the Controller of Insurance in terms of sections 11, 15 and regulations contained in the First, Second and Third Schedules of the Insurance Act, 1938 and rules made thereunder. In the events that happened the respondent had in the relevant years created and charged to the Profit and Loss Account on the expenditure side provision for taxation of Rs.14,426 and also deducted income-tax provision of Rs.20,790 from the interest and dividend income declared on the income side. Thus, the total taxable balance of profit, which could be treated as income was reduced by Rs.14,426 plus Rs.35,216. The Income Tax Officer while framing the assessment order disallowed and added back these two amounts to the income computed by him under the provisions of the Income Tax Act, 1922.

Being aggrieved the respondent preferred an appeal and the Income tax Appellate Tribunal (Karachi Bench) allowed the same vide order dated 5th November, 1971.

On the petition of the Commissioner of Income Tax, Central Zone `A', Karachi, the appellant herein the following question of law was raised:--

"Whether on the facts and in the circumstances of the case, the Tribunal was justified in deleting the provision for taxation from the income of the assessee?"

In fact two questions of law were raised, but one having already been disposed of by judgment of the Supreme Court, there is no controversy remaining to be determined in respect thereof.

The learned Judges of the Division Bench by their impugned order dated 8th October, 1983 decided the references against the appellant herein, by answering the aforesaid question of law in the affirmative.

In coming to the conclusion that the provision for taxation was justifiably disallowed, the substance of the reasons that prevailed with the learned Income?tax Appellate Tribunal was as under:--

"In order to arrive at the profits and gains of the insurance business other than life insurance the position as disclosed in the annual accounts furnished to the Controller of Insurance is to be accepted subject to disallowance of such items which are not allowable as deductible items of expenditure under section 10(2) of the Income Tax Act. Inasmuch as provision for taxation is not an item of expenditure the same cannot be deducted in order to arrive at the taxable profits and gains of insurance business... However, in view of the fact that specific provision has been made for the purpose of arriving at the profits of an insurance business the said profits can only be arrived at by applying the provisions of law made for the specific purposes strictly. Inasmuch as Rule 6 of the First Schedule only authorizes deduction of expenses which are not allowable under section 10(2) and in view of the fact that the provision for taxation or taxation reserve is not expenditure the Income Tax Officer was not entitled to disallow the same:"

It was urged before the learned Judges of the Division Bench on behalf of the Department that the Income Tax Officer can arrive at profits and gains of non-life insurance business from the accounts submitted to the Controller of Insurance after excluding such expenses which are not admissible under section 10(2) of the Income Tax Act. This contention was based on Rule 6 of the First Schedule to the Income Tax Act, 1922 which provides that profits and gains of non-life insurance business shall be taken to be the balance of profits disclosed by the annual accounts as required to be furnished to the Controller of Insurance under the Insurance Act, 1938, after adjusting such balance so as to exclude from it any expenditure, other than the expenditure which may under the provisions of section 10 of the Income Tax Act be allowed in computing the profits and gains of a business. Section 11 of the Insurance Act, 1938 provides for the preparation of a balance-sheet in accordance with the regulations contained in Part I of the First Schedule and in the form set forth in Part II of that Schedule. Profit and Loss account is required to be prepared by that section in the form set forth in Part II of the First Schedule. In the background of these provisions of law it was contended on behalf of the Department that as the reserve for taxation is not an expenditure item, the same should not have been mentioned on the expenditure side in preparing profit and loss account. Therefore, it was liable to be excluded from the expenditure side under the aforesaid Rule 6, looking to its real character as an amount still in the hands of the assessee and not having become a part of the expenditure Learned Judges of the Division Bench repelled the aforesaid contention as follows:--

"Regulation No. l contained in Part I of the Second Schedule provides for `Profit and Loss Account and Profit and Loss Appropriation Account' which should contain income on the income side and expenditure on the expenditure side. Form-C relates to Profit and Loss Appropriation Account. From Regulation No.l it seems that Profit and Loss Appropriation Account is part and parcel of the Profit and Loss account and both have to be read together. The Profit and Loss Appropriation Account on the expenditure side contained the item `Transfer to any particular Funds or Accounts' (Details to be given). This indicates that transfer made to any fund or account has to be shown on the expenditure side. Therefore, it does not mean that all entries on the expenditure side have necessarily to be expenditure only. Mr. Athar has stated that provisions for taxes are reserves funds for taxes and if any balance is left it is shown as income in the next year."

Leave to appeal was granted in these appeals to consider the question, inter alia, whether on the facts and circumstances of the case, the High Court was A justified in holding that the reserve for taxation was not expenditure and therefore, Rule 6 of the First Schedule of the Income Tax Act, 1922 was not applicable to the case.

Before the High Court it was urged on behalf of the Commissioner of Income Tax that the provision for taxation reserve in the accounts submitted by the assessee to the Controller of Insurance having been shown on the expenditure side it had to be treated as an expenditure and therefore, under Rule 6 of the First Schedule to the Income Tax Act, 1922 (hereinafter referred to as the Act), the Income Tax Officer was entitled to examine it for the purpose of adjustment of the balance of profits and gains. This contention was repelled by the learned Judges for the reasons that appear from the extract of the impugned judgment cited hereinbefore. The learned Judges relied on Commissioner, Income Tax v. Alpha Insurance Company Limited P L D 1981 SC 293 to come to the conclusion that the accounts submitted under the Insurance Act are binding on the Income Tax Officer as a fait accomplii and accordingly the limited power vesting in the Assessing Officer is to exclude only items which are in the nature of `expenditure' which are not allowable under section 10(2) of the Act, but since taxation reserve was not expenditure the conclusion was drawn that it was beyond the power of the Assessing Officer to invoke the provisions of section 10(2) and addback the reserve to the balance of profits for the purpose of putting it to tax. In reaching this conclusion the learned Judges relied on an earlier judgment of the Sindh High Court in I.T.C. No.326 of 1974 dated 30th August, 1982. In the last ?mentioned case the question whether provision for taxation constitutes expenditure within the meaning of Rule 6(1) of the First Schedule to the Act, was considered. In that case, the learned Judges in turn relied on a decision of the same High Court in I.T.C. Reference No.221 of 1972 (Commissioner of Income?tax v. New Jubilee Insurance Company Limited, dated 24th February, 1982). In the latter case the term `expenditure' was interpreted, by following Indian Molasses Co. v. Commissioner of income-tax (1959) 37 ITC 66. The Court held that `expenditure' connotes `paying out or away' of money, which is the primary meaning of the term. In other words, `expenditure' means `paid out or away' and is something, which has gone irretrievably. The conclusion reached by the Court in the first-mentioned case (I.T.C. No.326 of 1974) was recorded as under:--

"In our view, provision for taxation or taxation reserve cannot be equated with expenditure', which is something which has already been incurred or something which has already been paid out and which has gone irretrievably. In essence provision for taxation or taxation reserve remains a reserve and is not an expenditure."

In support of the present appeals Mr. Shaik Haider proceeded to urge that taxation reserve as provided in the accounts of the assessee, cannot be treated as expenditure even though it may be mentioned on the debit side. In support of this contention learned counsel also placed reliance on the Indian Molasses Co. (Private) Ltd. v. The Commissioner of Income-tax, West Bengal AIR 1959 SC 1049, so far as the connotation and meaning of the term `expenditure' is concerned. It was argued that the return filed by the assessee was not in accordance with Regulation 1 of Part I of the Second Schedule to the Insurance Act, 1938. Therefore, according to the learned counsel such a reserve cannot be deducted from the profit, nor did the Insurance Act authorize such deduction. In order to appreciate the contention of the learned counsel it will be convenient to refer to the relevant part of Rule 6 of the First Schedule to the Act which runs as follows:--

"6.--(1) The profits and gains of any business of insurance other than life insurance shall be taken to be the balance of the profits disclosed by the annual accounts, copies of which are required under the Insurance Act, 1938, to be furnished to the Controller of Insurance after adjusting such balance so as to exclude from it any expenditure, other than expenditure which may under the provisions of section 10 of this Act be allowed for in computing the profits and gains of a business."

In the case of Alpha Insurance Company Limited (supra), this Court had occasion to consider the scope and effect of Rule 6 of the First Schedule, in relation to the accounts submitted by the Insurance Company engaged in insurance business other than life insurance, before the Controller for Insurance for the purpose of assessment of income-tax. The question raised in that case was whether the Insurance Company was entitled to show in its accounts on the debit side management expenses exceeding the ceiling prescribed by the Insurance Rules framed under the Insurance Act, 1938. The Court, inter alia, held that the Assessing Officer could not addback in the accounts even though such excess was in violation of the Insurance Rules. This conclusion was expressed in the following words: --

"(i) the rules contained in the First Schedule to the Income Tax Act completely, exhaustively and to the exclusion of every other provision not expressly incorporated, govern the computation of the profits and gains of insurance business.

(iii) the power of the Assessing Authority under first part of Rule 6 (ibid) to read just the balance of the profits disclosed by the annual accounts required to be furnished under the Insurance Act, 1938 is restricted to `exclude from it any expenditure, other than expenditure' which may under the provisions of section 10 of the Income-tax Act be allowed for in computing the profits and gains of a business. The Assessing Authority has to apply an independent mind uncontrolled by Insurance Act to arrive at such a readjustment."

In reaching these conclusions, it was observed:--

"The jurisdiction of the Income-tax Officer under Rule 6 of the First Schedule to the Income-tax Act is confined to the taking of the profits and gains of any business of insurance other than life insurance `to be the balance of the profits disclosed by the annual accounts, copies of which are required under the Insurance Act, 1938 to be furnished to the Controller of Insurance'. This presents the Assessing Authority with a fait accomplii, over which he exercises no control. If the law requires such excess to be excluded from the balance-sheet the Assessing Authority cannot re-introduce it. If the law, as in these cases, requires such expenses to be included in the balance-sheet, the Assessing Authority cannot exclude it on any principle not made a part of the First Schedule to the Income Tax Act. This brings us back to the starting point, namely, that the Income Tax Officer has `no power to do anything not contained in the First Schedule to the Income Tax Act."

"To this extent alone and on a finding that the expense could not qualify as a legitimate deduction under section 10, it could be excluded from the balance-sheet."??????

In Habib Insurance Co. Ltd. v. Commissioner of Income Tax (Central), Karachi PLD 1985 SC 109 once again this Court reiterated the proposition on the ground that under subsection (7) of section 10 of the Act, the computation of tax has to take place, in respect of profits and gains of non-life insurance business, in accordance with the First Schedule, the provisions of which are self-contained and complete. In that case also it was urged that in Revenue cases the Court has to look at the substance of the things and not at the manner in which the account was stated but it was observed that this broad proposition is controlled by the First Schedule and it was emphasised that the completeness and importance of accounts prescribed under the Insurance Act fur a Company carrying on business of insurance, even for purposes of income-tax is apparent from the relevant provisions of the Insurance Act. In this connection, reference was made to section 21 of the Insurance Act, which authorises the Controller of Insurance to get further information about the returns, to examine the books of accounts, to decline to accept returns unless defect is removed. Reference was also made to section 22 which authorizes the Controller to order re-evaluation.

From the authoritative pronouncements of this Court, the law seems to be settled that finality attaches to the accounts submitted by the assessee insurance company under the Insurance Act to the Controller of Insurance, and the limited jurisdiction vesting in the Income Tax Officer is only to exclude expenditure from the balance of profits in such accounts which is not permissible under section 10 of the Act. Under subsection (7) of section 10 of the Act the profits and gains of any business of Insurance and the tax payable thereon, is required to be computed in accordance with the rules contained in the First Schedule to the Act. However, it is important to note, that the enacting part of this subsection is subjected to the non obstante clause excluding the application of section 8, 9, 10, 12 or 18 of the Act. Therefore, it is quite apparent that the main provisions with regard to computation of profits and gains in the Act have been excluded including section 10. It is only by virtue of Rule 6 of the First Schedule that section 10 has been brought back for the limited purpose of addingback expenditure not permissible under that section. Therefore, the Income Tax 13 Officer, in the face of these statutory provisions, is not competent to upset the integrity of the accounts submitted by the assessee under the Insurance Act, by applying the ordinary rules for computation of profits and gains and for assessment of tax thereon, in the light of provisions of the Income Tax Act in respect of the income in regard to the head `business'. The contention of the learned counsel, therefore, that the return filed by the assessee was not in accordance with Regulation 1 of Part 1 of the Second Schedule to the Insurance Act is untenable. Similarly his submission that `reserve' cannot become expenditure even though it may be mentioned on the debit side, because the money is not paid out irretrievably, is also irrelevant. On the contrary if the item in question did not in substance and essence constitute expenditure, it would be out of the power of the Income Tax Officer to apply the provisions of Rule 6 to exclude and addback the same to the balance of profits in order to bring it within the tax net.

In this connection also we may refer to another argument of the learned counsel for the Revenue that income-tax even if paid cannot be deducted as an expenditure for the purpose of determining the taxable income. This argument also is contrary to the abovesaid principle that the jurisdiction of the Income Tax Officer extended to expenditure, whereas in the present case admittedly the two items in question were amounts appropriated to taxation reserve and therefore by the test adopted by learned counsel with reference to the case of Indian Molasses Company Limited (supra) they were not amounts of expenditure in so far as they were not sums already paid so that it can be said that they were irretrievably paid out or away.

We may mention that Mr. Muhammad Dawood Khan, who was at the relevant time Inspecting Assistant Commissioner, Range-II. Companies Zone III, Karachi (now Commissioner Wealth Tax) was also allowed to address us. He submitted that nowhere in the Insurance Act is a taxation reserve deductible from the profit. The object of the provision of a reserve, according to him, is to set apart a sum for some purpose so that the same is not touched or distributed. He has also referred to the re-enacted Income Tax Ordinance, 1979, where the language in Rule 5 of the Fourth Schedule has been modified so as to clearly? provide for exclusion from balance of profits in the annual accounts furnished to the Controller of Insurance, by saying `any expenditure or allowance or any reserve or provision for any expenditure.....?. So far as the last contention is concerned the change in language in the re-enacted law, on the contrary, indicates that reserve was not originally included in the `expenditure' and therefore, both terms have been used in the dispensation in order to extend the scope of the provisions to cover reserves also. However, we have already given other reasons for not subscribing to this submission, namely, that as held in Alpha insurance Company- Limited (supra) the accounts submitted under the Insurance Act are complete and their authenticity and integrity cannot be questioned by the Income Tax Officer, with reference to any provisions of the Insurance Act. In this connection, we may further point out that an examination of the provisions of the Insurance Act would reveal that the same makes detailed provisions to ensure the true evaluation of assets and the determination of the true balance of profits of an insurance business, so that Rule 6 of the First Schedule to the Act has to be construed in the background of those provisions.

Under section 11 of Insurance Act every insurance company has to prepare at the expiration of each calendar year a balance-sheet, a profit and loss account, and a revenue account in prescribed form to be authenticated. Under section 15 the audited accounts and statements referred to, have to be furnished to the Controller as returns. Section 18 of the said Act requires every insurance company to furnish to the Controller of Insurance a certified copy of every report on the affairs of the concern which is submitted to the members or policy holders of the insurer. Section 21, then, enables the Controller to call for such further information, from the insurer in respect of the return furnished by it, if he feels that the same is inaccurate or defective in any manner. He can examine the books of accounts, registers and documents as well as any officer of the insurer. He is then empowered to decline to accept any return unless the inaccuracy has been corrected or the deficiency has been supplied. In case he so decline, to accept any return, the insurer shall be deemed to have failed to comply with the provisions of section 15 relating to the furnishing of returns. It is in this context that finality has been given to the accounts for purposes of Rule 6 of the First Schedule.

Mr. Iqbal Naeem Pasha, learned counsel for the respondent has further referred to section 102 of the Insurance Act in order to reinforce the aforesaid proposition that the annual accounts submitted under the Insurance Act are sacrosanct for the purposes of the computation of income-tax under the First Schedule. By section 102 the law provides for a penalty in case of default by any insurer in complying with or acting in contravention of any requirement of the Insurance Act. He has referred us to Commissioner of Income Tax v. Calcutta Hospital and Nursing Home Benefits Association Ltd. (1965) 57 I T R 313 to urge that the balance of profits disclosed in the annual accounts in question, is binding on the Income Tax Officer and that he can only exclude expenditure other than expenditure permissible under section 10 of the Act. According to him, the reserve for taxation is not `expenditure' and therefore, as held by the High Court the Income Tax Officer was not competent to addback the same. In this case the Indian Supreme Court, while interpreting Rule 6 of the First Schedule to the Act, has pointed out that Rule 6 speaks of the balance of profits as disclosed in the accounts submitted to the Superintendent of Insurance and has observed that the said Superintendent is not concerned with `taxable' profits. What he is concerned with, inter alia, is the balance of profits for the purpose of Insurance Act. Indian Supreme Court in this case has also interpreted Rule 6 as under:--

"It seems to us that on its language Income Tax Officer is bound to accept the balance of profits disclosed by the annual accounts, copies of which have been submitted to the Superintendent of Insurance. He can only adjust this balance so as to exclude from it any expenditure other than expenditure which may under the provisions of section 10 be allowed for in computing the profits and gains of a business."

The Court, therefore, held that as reserves which were addedback to the balance of profits by the Income Tax Officer were not expenditure, the said Officer was not competent to do so. This judgment fully supports the view taken by the High Court and the submissions of Mr. lqbal Naeem Pasha. We also agree with the submission of Mr. Iqbal Naeem Pasha that such interpretation will be in consonance with the well-established rule of interpretation in regard to taxing statutes that the Court cannot imply anything which is not expressed or import provision in the statute so as to support assumed deficiency, as held in Hirjina & Co. (Pakistan) Ltd. v. Commissioner of Sales Tax 1971 S C M R 128.

In view of what has been stated hereinabove we find no substance in the contention of the learned counsel for the appellant that the combined effect of ' section 10(7) read with Rule 6 of the First Schedule of the Act, is that the Income Tax Officer is vested with the power to probe into the account submitted by the insurance company, with a view to determining the real nature of any item of such account, for purpose of excluding it in order to adjust the balance of profits. In any case, since the Revenue itself concedes that the disputed items in these appeals did not constitute expenditure, it follows that it was not permissible for the Income Tax Officer to disallow these items and addback the same to the balance of profits. He did not also have the power to hold that the taxation reserves were not liable to be mentioned on the debit side of the accounts submitted under the Insurance Act, for the reason that, as already discussed, he could not travel beyond the provisions of the Income Tax Act and modify the accounts with reference to the provisions of the Insurance Act.

After I had reduced to writing the aforesaid proposed judgment in these appeals, my brother Naimuddin, J., agreed with my conclusion that these appeals be dismissed, but added a brief note of his, which I have had the benefit of perusing. I subscribe and agree to the view expressed by him and accordingly that opinion is being attached with this judgment as concurred by all the members of the Bench, which heard these two appeals.

For the foregoing reasons these two appeals fail and are accordingly dismissed with costs.

NAIMUDDIN, J.---I agree with my learned brother that the appeal be dismissed as the High Court has correctly answered the question referred to it in the two references arising out of identical facts between the same parties.

2. However, I would add the following brief note:--

3. The taxation reserve is not expenditure, therefore, Income Tax Officer had no jurisdiction under the law to examine or exclude it from the Profit and Loss Account and the Profit and Loss Appropriation Account, approved by the Controller of Insurance under the Insurance Act, 1938.

4. There was a lacuna in Rule 6 of the First Schedule to the Income Tax Act, 1922 which was first plugged in when the Income Tax Ordinance, 1979 was promulgated by providing in Rule 5 of the 4th Schedule thereof the word K `allowance'. This rule has further been amended by Finance Ordinance XXV of 1980. The original Rule 6 in the First Schedule to the Income-tax Act, 1922 read as follows:--

"6.--(1). The profits and gains of any business of insurance other than life insurance shall be taken to be the balance of the profits disclosed by the annual accounts, copies of which are required under the Insurance Act, 1938, to be furnished to the Controller of Insurance after adjusting such balance so as to exclude from it any expenditure, other than expenditure which may under the provisions of section 10 of this Act be allowed for in computing the profits and gains of a business. Profits and losses on the realisation of investments, and depreciation and appreciation of the value of investment shall be dealt with as provided in Rule 3 for the business of life insurance.

???????????

(2)??????? .................................?? not relevant.

(3)??????? .................................?? not relevant.

(4) ?????? ........................??????????? not relevant.

(5) ?????? .......................???????????? not relevant."

The relevant part of Rule 5 of the Fourth Schedule to the Income Tax Ordinance, 1979 reads as follows:--

"5. General Insurance--- The profits and gains of any insurance other than life insurance shall be taken to be the balance of the profits disclosed by the annual accounts required under the Insurance Act, 1938 (IV of 1939) to be furnished to the Controller of Insurance, subject to the following adjustments, namely:--

(a) any expenditure or allowance which is not deductible in computing the income chargeable under the head `Income from business or profession' shall be excluded;

(b) not relevant:'

Provided---------not relevant."

This rule as amended by the Finance Ordinance XXV of 1980 reads as follows:--

5--------------- ?????????? not relevant

"5(a) any expenditure or allowance or any reserve or provision for any expenditure, or the amount 'of any tax deducted at source from any dividends or interest received which is not deductible in computing the income chargeable under the head `Income from business or profession' shall be excluded."

?

5. At this stage reference to Regulation No.1 may also be made. It reads as follows:--

"1. The items on the income side of the Profit and Loss Account and Profit and Loss Appropriation Account must relate to income whether actually received or not, and the items on the expenditure side must relate to expenditure whether actually paid or not."

6. It may also be useful to reproduce section 11 of the Insurance Act, 1938, which reads as follows:--

"11. Accounts and balance-sheet.-- Every insurer, in the case of an insurer specified in sub-clause (a)(ii) or sub-clause (b) of clause 9 of section 2 in respect of all insurance business transacted by him, and in the case of any other insurer in respect of the insurance business transacted by him in Pakistan shall at the expiration of each calendar year prepare with reference to that year--

(a) in accordance with the regulations contained in Part I of the First Schedule, a balance-sheet in the form set forth in Part II of that Schedule;

(b) in accordance with the regulations contained in Part I of the Second Schedule, a profit and loss account in the forms set forth in Part II of that Schedule, except where the insurer carries on business of one class only of the classes specified in clauses (a), (b) and (c) of subsection (1) of section 7 and no other business;,

(c)???????????Not relevant

??????????? (2)???????????not relevant

In this section reference has been made to the Regulation 1, contained in Part I of the Second Schedule (reproduced above) and the form set forth in Part II of that Schedule. A part of the form may also be reproduced hereinbelow:--

PART II

FORMS

???????????

FORM `B'

Form of Profit and Loss Account

Profit and Loss Account of for the ear ended 19

(Rs.)???????????????????????????????????????????????????????????????? (Rs.)

Central Taxes on the insurer's ?????????????????????????? interest, Dividends and Rents (not

Profits Interest, Dividends and ????????????????????????? applicable to any particular Fund or

Rents (not applicable to any ???????????????????????????????????????? Account Rs."

particular Fund or Account)

8. It will be seen from the abovequoted regulation No.l that the items on the income side of the Profit and Loss Account and Profit and Loss Appropriation Account must relate to income whether actually received or not and the items on the expenditure side must relate to expenditure whether actually aid or not. In the Form central taxes on insurance profit have to be mentioned but it is not mentioned whether it is those taxes which have been paid or which are estimated to be pain.

9. It was submitted by the learned counsel for the appellant that the insurance companies provide huge amount by way of taxation reserve which is far more than the actual tax liability for that year. If it is so, it was for the Controller was properly to see that the amount though mentioned as taxation reserve, provided as the tax liability at the time of submission of accounts to the Controller of Insurance might not be known. If the Controller had failed to check the accounts, the department was not without remedy. It could have invited the Controller to exercise his powers under section 21 of the Insurance Act, 1938 and called for the necessary particulars and information. If he had failed to do so, the Department was again not without remedy against him.

10. However, Mr. Shaikh Haider, learned counsel for the Revenue and the Inspecting Assistant Commissioner of Income-tax (now the Commissioner of Wealth Tax) further submitted that some of the Insurance Companies adapted a way whereby they would provide large taxation reserves but after assessment of actual tax, they would pay the same but would not bring in excess provision in taxation reserve in the accounts of the next year. As regards this grievance, Mr. Iqbal Naim Pasha vehemently controverted that it was so in the case of the respondents.

Assuming that in some case it might have happened, I do not think the Department was helpless and had no powers to revise the assessment of tax.

M.BA./C-90/S ??????????????????????????????????????????????????????????????????????? Appeals dismissed.