Per Farhat All Khan, Chairman agreeing with AA Zuberi, Accountant Member---

(a) Workers Welfare Fund Ordinance (XXXVI of 1971)---

----S. 4---Income Tax Ordinance -(XXXI of 1979), Ss. 2(44) & 11-- "Total income"---Meaning---Provision of S. 14, Workers Welfare Fund Ordinance, 1971 refers to that "total income" which has been defined by S.2(44) read with S.11 of the Income Tax Ordinance, 1979 and not to that total income worked out on the basis of various incomes derived from one or more activities mentioned in S.2(f) of the Workers .Welfare Fund Ordinance, 1971---Workers Welfare Fund is thus chargeable only on the total income which is assessable under the Income Tax Ordinance and for the purposes of working out total income all the income earned in the world is to be included.

1989 P T D 1004 fol.

(b) Interpretation of statutes-

----Definition---Expression which is defined in any legislation is to be given ordinarily the same connotation which is ascribed to it by the legislature in its definition clause.

(c) Workers Welfare Fund Ordinance (XXXVI of 1971)---

----S.2(0---"Industrial establishment"---Connotation---Industrial establishment would still remain an "industrial establishment" if it derives its income from other sources also.

(d) Workers Welfare Fund Ordinance (XXXVI of 1971)-

----S. 2(f)---"Concern"---Connotation.

(e) Workers Welfare Fund Ordinance (XXXVI of 1971)---

----S. 2(f)---Benefit of Workers Welfare Fund would go to all the workers whether they work in any one or more concerns enumerated in S.2(f) or in any other establishment which belongs to that industrial establishment.

(f) Workers Welfare Fund Ordinance (XXXVI of 1971)--

----Ss. 4 & 2(f)---Income Tax Ordinance (XXXI of 1979), Ss.2(44) & 11- Workers Welfare Fund is leviable on income of assessee from sources other than on industrial establishment as well.

Per A.A. Zuberi, Accountant Member---

Per Nasim Sikandar, Judicial Member (Minority view)...

A.G. Canada v. Herllet and. Carry Ltd. P L D 1952 FC 29; Federation of Pakistan v. Aftab Ahmed Khan Sherpao P L D 1992 SC 723 and Ghulam Khan v. Dilawar Khan P L D 1955 Pesh. 76 ref.

Muhammad Anwar Paracha for Appellant.

F.D. Qaiser, D.R. for Respondent.

Date of hearing: 8th February, 1993.

ORDER

A. A. ZUBERI (ACCOUNTANT MEMBER).---These three appeals have been filed at the instance of a registered firm who are engaged in the manufacture and marketing of pipes fittings etc. The appeals assail consolidated order dated 18-11-1985 passed by the learned Commissioner (Appeals) Zone 2, Lahore in respect of the assessment years 1980-81, 1981-82 and 1982-83.

2. The only issue in dispute is the levy of 2% for Workers Welfare Fund which came to Rs.2,300 in 1980-81, Rs.3,300 in 1981-82 and Rs.3,960 in 1982-83. The learned counsel explained that demand for Workers Welfare Fund was raised through rectificatory action under section 156 of the Income Tax Ordinance. It was explained that a show-cause notice was served on 10-3-1983, reply to which was tendered on 15-3-1983 contending that as per section 4 of the Workers Welfare Fund Ordinance, 1971, the levy could be only in respect of the industrial profits and not on trading profits. For this the learned counsel sought support from the Preamble of the Ordinance which proclaimed that the enactment was intended "to provide for the establishment of a Workers Welfare Fund for providing residential accommodation and other facilities for workers and for matters connected therewith or incidental thereto". On this a premise was developed that only industrial establishments could be subjected to this levy and, therefore, the assessing officer should have bifurcated the industrial profits from trading profits for charge of this levy. This plea was dismissed by the learned Commissioner who observed that there was no provision in the Ordinance to the effect that contribution should be only in respect of income from industry and not the income of the industrial establishment.

3. We have considered the arguments addressed to us and gone through the orders by the officers below. Our conclusion is that the charging section for the Workers Welfare Fund is section 4 of the Workers Welfare Fund ordinance, 1971. This section reads as under:--

"4. Mode of Payment by and Recovery from Industrial Establishment.-- (1) Every industrial establishment the total income of which in any year of account is not less than one lac of rupees shall pay to the fund .... a sum equal to 2% and so much of its total income as is assessable "

It is evident that the charge is on the "total income" which at clause (i) of subsection (2) of this Ordinance has been defined to have "the same meaning as in the Income Tax Act". Coming to the Income Tax legislation, we find that clause 44 of section 2 defines total income to mean--

`total income' means the total amount of income referred to in section 11 computed in the manner laid down in this Ordinance; and includes any income which, under any provision of this Ordinance, is to be included in the total income of an assessee;"

The scope of "total income" as per section 11 of the Income Tax Ordinance, in relation to a resident (which is the status of the present appellant), is includes all income from whatever source derived, received or deemed to be received in Pakistan, accrued or deemed to have accrued in Pakistan and accrued or arose outside Pakistan. The manner of computation of total income is the clubbing of income under various heads specified in section 15 of the Income Tax Ordinance. The conclusion is inescapable that in assessment of a resident assessee, charge in respect of Workers Welfare Fund would be raised at 2% of the aggregated sum representing income from all sources defined as "total income". On this interpretation we see no merit in the arguments addressed for the appellant, hence dismissing the appeals in all the three years, maintain the treatment by the officers below.

4. NASIM SIKANDAR (JUDICIAL MEMBER).--I have gone through the order proposed by learned. Member (Accountant). The relevant facts and the legal issue involved having been stated with precision, their repetition is not needed. However, I will respectfully disagree with him that the scope of "total income" of the appellant in this case includes his income from 'whatsoever source derived, received or deemed to be derived.

5. The assessee-appellant, admittedly, derives income from "Industrial Establishment" as also from trading. For all the three assessment years he declared separate figures of income from these two sources. For the assessment years 1980-81 to 1982-83 receipts from manufacturing account were declared at Rs.1,04,588, Rs.48,125 and Rs.37,983 respectively. The receipts from trading for this period were declared respectively at Rs.10,412, Rs.1,16,875 and Rs.1,60,071. The manufacturing receipts statedly accrued from an industrial establishment run by the appellant itself while trading receipts are reported to have been derived from the goods purchased from the market and then supplied or sold to its customers alongwith self-produced goods. According to section 4 of the Workers Welfare Fund Ordinance, 1971 every industrial establishment the total income of which is not less than Rs.1,00,00C shall pay to the fund in respect of that year a sum equal to 2% of so much of its total income as is assessable under the Income Tax Ordinance. For facility of reference the charging provisions as contained in subsection (1) of section 4 are reproduced in extenso:--

Mode of payment by, and recovery from industrial establishment.-

(1)Every industrial establishment the total income of which in any year of account commencing on or after the date specified by the (Federal Government) in the official Gazette in this behalf is .not less than one lakh of rupees shall pay to the fund in respect of that year a sum equal to two per cent. of so much of its total income as is assessable under the (Ordinance) or would have been so assessable but for the exemption made by section 48 thereof."

6. There appears no doubt that these charging provisions are to be read with reference to the "total income" of an industrial establishment as referred to sub-clause (1) of subsection (2) of the Ordinance (No. XXXVI of 1971). This sub-clause assigns same meaning to "total income" as is stipulated in the Income Tax Ordinance. Accordingly, by referring to sub-clause (44) of section 2 of the Income tax Ordinance, we find the total income to have been defined in the following manner:--

"Total income means the total amount of income referred to in section 11 computed in the manner laid down in this Ordinance; and includes any income which, under any provision of this Ordinance, is to be included in the total income of an assessee;"

7. On the basis of this definition of total income my learned brother has reached the conclusion that for the purpose of levy or charge of Workers' Welfare Fund the manner of computation of "total income" is the clubbing of incomes under various heads as specified under section 15 of the Income Tax Ordinance. Resultantly he found no fault with the order of the first appellate authority who held the applicant to be chargeable to the Workers Welfare Fund in spite of the contention of the applicant that only income from "industrial establishment" was subject to levy of Workers Welfare Fund and not its income from trading. The learned first appellate authority had reached this conclusion on the ground that there was no provision in the Workers Welfare Fund Ordinance, 1971, that the contribution should be only in respect of income from industry and not .the income of "industrial establishment" from other sources. This is where I differ with the findings of the first appellate authority and also its confirmation by my learned brother.

8. A plain reading of the charging section of the Workers Welfare Fund Ordinance, 1971 i.e. section 4 makes it abundantly clear that the reference to "total income" pertains only to the "industrial establishment" and not to the total income of an "assessee" as defined in the Income Tax Ordinance, 1979. In other words it is only the "total income" of an "industrial establishment" which is liable to levy of charge and not the total income of an assessee. The use of word "total income" in respect of an industrial establishment to my mind was considered necessary for the reason that subsection (f) of section 2 of the Workers Welfare Fund, 1971, defined an "industrial establishment" to include as many as the following six sources:--

(i)any concern owning or managing a factory, workshop or other establishment in which articles are produced, adapted or manufactured with the aid of electrical, mechanical, thermal, nuclear or any other form of energy transmitted mechanically and not generated by human or animal agency;

(ii)any concern working a mine or quarry or natural gas or oil field;

(iii)any concern running a tramway or motor omnibus service;

(iv)any concern engaged in the carriage of men and goods by inland

mechanically propelled vessels;

(v)any concern engaged in the growing of tea, coffee, rubber or cinchone;

and

(vi)any other concern or establishment which the (Federal Government) may, by notification in the official Gazette, declare to be an industrial establishment for the purposes of this Ordinance.

9. Thus, an industrial establishment - may derive income from manufacturing, production or adaptation of articles through the stated process, a mine, quarry, natural gas or an oilfield, a tramway or motor omnibus service, carriage of men and goods and growing of tea and coffee and cinchona. The income from one or more of the said sources is the only concern of the Ordinance and hence the use of the term "total income". It may also be noted that as per the above-stated definition an "industrial establishment" always means a "concern" which carries on a specified activity as spelled out in the definition clause. Therefore, it is the income of one or more of these ,concerns" that the Ordinance speaks about. The effect of interpretation put upon the "total income" with respect to an industrial establishment as ordered by my learned friend would in fact mean the "total income" of an "assessee" from "business" as defined in the income Tax Ordinance and not that of an "industrial establishment". This appears to be against the intention of the Workers Welfare Fund Ordinance, 1971. In this regard the reference by learned counsel for the appellant to the preamble of this Ordinance (No. XXXVI of 1971) is very pertinent which states the reason for establishment of a Workers Welfare Fund in the following words:--

"Whereas it is expedient to provide for the establishment of a Workers Welfare Fund for providing residential accommodation and other facilities for workers and for matters connected therewith or incidental thereto ...."

From this narration of the reasons of legislation one is clearly led to a conclusion that the creation of fund and the levy of charge primarily is to provide for residential accommodation and other facilities for workers and for matters connected therewith or incidental thereto. Evidently the idea behind this legislation is the amelioration of the workers' lot by pooling together certain amount taken from the profits earned by industrial establishments in which they work. Without an iota of doubt, this fund is a compulsory contribution by those for whom the workers shed their sweat. But, to force other kinds of business or enterprises to pay for the betterment or welfare of a specified class is clearly not in accordance with the scheme of the Ordinance enacted with a specific purpose of providing residential accommodation and other facilities for workers.

10. It is in the perspective of this object that one must see the purpose of legislation as also the scope of total income of an industrial establishment on whose income a levy has been stipulated. Ascertaining of legislative intent by resort to general objects of statute and to keep it in view while construing a particular provision of a statute is definitely permissible as held in the judgment cited as P L D 1952 FC 29 Re: A.G. Canada v. Herllet and Carry Ltd. A similar view was taken by Supreme Court of Pakistan in a recent decided case Re: Federation of Pakistan v. Aftab Ahmed Khan Sherpao reported as P L D 1992 SC 723. In case of ambiguity while searching for the intent of legislature a resort to the preamble is also not prohibited as decided In re: Ghulam Khan v. Dilawar Khan P LID 1955 Pesh. 76. The principle of beneficial construction in these circumstances in my humble opinion, can also be resorted to if it is considered that the words expressed in the statute could equally be made applicable to the total income derived by an industrial concern or by an assessee. However, as observed earlier, after going through the aforesaid provisions of law, more particularly the charging section of Workers' Welfare Fund Ordinance, 1971, read with definition of an "Industrial Establishment" as given in sub-clause (f) of section 2 of the Ordinance, I do not find any ambiguity in the intention of the legislature that the Workers Welfare Fund is leviable only on the total income of an "Industrial Establishment" and not that of an "assessee" which might be deriving income from a number of' other sources say property, salary etc. To hold that reference to "total income" in subsection (1) of section 4 of the Workers' Welfare Fund Ordinance pertains to every kind of income of an assessee would stretch the taxation net much beyond the scope it was originally intended by the legislature. Thus, while computing total income for the levy of charge towards fund it is the income of one or more of the kinds of "industrial establishments" as defined in the Ordinance that has to be taken into account and no other source or income of an assessee at all. And an industrial establishment whose total income is liable to charge can derive income from one or more of the six kinds of concerns as detailed in the definition clause which is exhaustive in nature and does not admit of any other income or source which is not covered in the definition.

11. The proposition that a person should only be taxed if he comes within the letter of law and that he is free even if his case falls within the spirit of law a hardly needs support from reported cases. The present case has a peculiar situation in which only in the first year the income from industrial establishment of the assessee exceeded Rs.1,00,000 while in the rest of the two years it was much less than the income from other sources. In such a situation it would be clearly unjust to expand the scope of the charge to the income of an assessee derived from sources other than from industrial establishment as defined by the Ordinance, 1971 itself. It may be explained that the statute having given certain peculiar meaning to the word "industrial establishment" its scope will not be held confined to or equivalent to the word "manufacturing" though in the case under review the assessee derived part of its income from manufacturing which appears covered by sub-clause (f)(i) of the definition clause.

12. I have some other reasons as well to believe that Workers Welfare Fund is not a universal charge. For, in that case the legislature could easily use the word "assessee" instead of industrial establishment. And, since assumption of an intendment is not permissible in taxing statutes, we cannot take an industrial establishment to mean an "assessee" nor the total income of an industrial establishment to be equivalent to the total income of an assessee. It may also be seen that the Fund is not leviable on all kinds of "Industrial Establishments". The charging section lays down that only those industrial establishments the total income of which in any year is not less than one lac rupees are subject to the levy of this payment and no others. This would obviously mean then even the biggest industrial establishment in the country may not be subject to this levy if its income does not exceed Rs.1,00,000 in any assessment year while the smallest industrial establishment may be so liable if . its income chargeable-to income-tax in a year exceeds Rs.1,00,000. Therefore, 't is not only an "industrial establishment" but also the attainment of a Particular income in a year which attracts levy of the charge without any regard ether to the size of the industrial establishment or the number of workers employed. In that sense that it is not applicable unless a certain level of income is earned, the charge is not permanent or consistent either. An industrial establishment may be chargeable to the levy by earning more than the specified limit in one year but may be absolved of it in the very next year if its income does not reach or cross that limit. Lastly as the definition of industrial establishment indicates, it will never mean any concern or establishment which is owned by Government directly or indirectly while the Government may declare any concern or establishment besides the six categories stated in this clause to be an industrial establishment for the purpose of the Workers Welfare Fund Ordinance, 1971. This will again mean that an "industrial establishment" is something which fits in the existing pattern of this Ordinance or which may be made to fit in by law in future for the purpose of application of the Ordinance. These are, therefore, clear indicators that this charge is not universal; that an industrial concern means a particular kind (s) of concerns carrying on a specified activity and that an industrial establishment cannot be taken to mean an assessee. Resultantly, the total income of an industrial establishment will be one derived by the "industrial establishment" as defined in the Ordinance (XXXVI of 1971) from the activities stated in the definition class only and not by an assessee from other sources. The phrase "Industrial Establishment" in-substance and effect, therefore, is neither synonymous nor interchangeable to the word "business" as defined in clause 11 or word "assesses" as defined in clause (6) of section 2 of the Income Tax Ordinance, 1979.

13. In this situation I rind that the present assesses-appellant was subject to levy of 2% of Workers Welfare Fund only in the year 1980-81 when its declared income from "industrial establishment" stood at more than Rs.1,00,000 i.e. Rs.1,04,588. In the remaining two years its total income from "industrial establishment" being at Rs.48,125 and Rs.37,983, was clearly below the minimum total income of an industrial establishment prescribed at Rs.1,00,000 by the charging section. Therefore, the assesses-appellant was not liable for the levy of Workers' Welfare Fund in the years 1981-82 and 1982-83.

14. Since we have differed in our view regarding interpretation of charging section 4(1) of Workers Welfare Fund Ordinance, 1971 in the given circumstances, the case is referred to the learned Chairman under subsection (7) of section 133 of the Income Tax Ordinance for hearing of the following point by one or more of other members of this Tribunal:--

"Whether the Workers Welfare Fund is leviable on 'income from sources other than an industrial establishment as well."

(Sd.)(Sd.)

Nasim Sikandar,A.A. Zuberi,

Judicial Member. Accountant Member

FARHAT ALI KHAN (CHAIRMAN).---These appeals have come up before me to resolve the controversy arising out of the following question:

"Whether the Workers Welfare Fund is leviable on income from sources other than an industrial establishment as well?"

From perusal of the order proposed by the learned Judicial Member it appears that during the relevant assessment years the appellant, a registered faro, declared its income from manufacturing account at Rs.1,04,588, Rs.48,125 and Rs.37,983 whereas the income from trading activity was declared at Rs.10,412, Rs.116,875 and Rs.160,071. The learned Accountant Member came to the conclusion that the total income derived from both manufacturing and trading activities stood exposed to levy of Workers Welfare Fund, hereinafter referred to as W.W.F. However, the learned Judicial Member came to the conclusion that the income of the appellant which was derived only from manufacturing, activity could be subjected to W.W.F. Hence the difference of opinion.

The learned Accountant Member relying upon the definition of `total income' as contained in clause (44) of section 2 and section 11 of the Income Tax Ordinance, 1979 held that the Workers Welfare Fund was to be worked out on the total income which is arrived at after the clubbing of income derived under various heads of. income as specified in section 15 of the Income Tax Ordinance. The learned Judicial Member, however, is of the view that since Workers Welfare Fund was chargeable on the total income of an industrial establishment, the expression "total income" means and implies the income derived from any one . or more activities mentioned in' subsection (f) of section 2 of the Workers Welfare Fund Ordinance, 1971. In this connection the learned Judicial Member has remarked as follows:--

" .... Thus, an industrial establishment may derive income from manufacturing, production or adaptation of articles through the stated process, a mine, quarry, - gas or an oilfield, a tramway or motor omnibus services, carriage of men and goods and growing of tea and coffee and cinchona. The income from one or more of the said sources is the only concern of the Ordinance and hence the use of the term `total income'.

Dealing with the conclusion of the learned Accountant Member the learned Judicial Member has discarded it with the following observation:--

"... Thus, while computing total income for the levy of charge towards fund it is the income of one or more of the kinds of industrial establishments as defined in the Ordinance that has to be taken into account and no other source or income of an ~assessee at all. And an `industrial establishment' whose total income is liable to charge can derive income from one or more of the six kinds of concerns as detailed in the definition clause, which is exhaustive in nature and does not admit of any other income or source which is not covered in the definition... "

In order to further fortify his conclusion the learned Judicial Member has made the following pertinent remark:--

... The effect of interpretation put upon the `total income' with respect to an industrial establishment as ordered by my learned friend would in fact mean the `total income' of an assessee from `business' as defined in the Income Tax Ordinance and not that of an `industrial establishment' .... "

Referring to the preamble of Workers Welfare Fund Act, 1971 the learned Judicial Member has observed as follows:--

"... Evidently the idea behind this legislation is the amelioration of the workers' lot by pooling together certain amount taken from the profits earned-by industrial establishments in which they work. Without an iota of doubt, this fund is a compulsory contribution by those for whom the workers shed their sweat. But, to force other kinds of business or enterprises to pay for the betterment or welfare of a specified class is clearly not in accordance with the scheme of the Ordinance enacted with a specific purpose of providing residential accommodation and other facilities for workers..:'

The learned Judicial Member, therefore, finally held that the appellant was exposed to levy of W.W.F. in assessment year 1980-81 only as its income as "industrial establishment" stood at more than Rs.1,00,000 whereas in assessment years 1981-82 and 1982-83 it did not.

I have heard Mr. Muhammad Anwar Paracha and Mr. M. Asif appearing on behalf of the appellant and the department. I have also gone through the proposed order of my brother the learned Judicial Member. However, with profound respect to my brother, the learned Judicial Member, I think that he has arrived at absolutely wrong conclusion simply because he did not read section 4 of W.W.F. Ordinance 1971 in full. Had he done so, I am sure, he would not have arrived at the conclusion, which he did. I, therefore, reproduce it as follows:--

"4. Mode of payment by, and recovery from industrial establishment.- (1) Every industrial establishment, the total income of which in any year of account commencing on or after the date specified by the (Federal Government) in the official Gazette in this behalf is not less than one lack of rupees shall pay to the Fund in respect of that year a sum equal to two per cent. of so much of its total income as is assessable under the (Ordinance) or would have been so assessable but for the exemption made by section (48) thereof...

(2) Every industrial establishment which is liable under subsection (1) shall pay the amount due front it to the Income-tax Officer having jurisdiction over the industrial establishment for purposes of the Ordinance.

(3). The industrial establishment shall, on or before the date on which it is required to furnish a return of income under (section 55 of the Ordinance), pay the amount due from it under subsection (1) calculated with r f .r n to the total income reported in the said return.

(4) At the time of making an assessment under (the Ordinance) or as soon thereafter as may be, the Income Tax Officer shall, by order in writing, determine the amount due from industrial establishment under subsection (1), if any, on the basis of the income so assessed after taking into account the amount paid by the industrial establishment under subsection (3) in respect of the year and the Industrial establishment shall pay the amount so determined on or before the date specified in the order.

(5)Any change by way of enhancement or reduction in the assessed income subsequent to the assessment made under (the Ordinance) shall be given effect to by adjustment of the amount due under subsection (1).

(6)Any amount paid by an industrial establishment under subsection (3) which is found, on the basis of an order in appeal or revision under the (Ordinance), to have been paid in excess shall be refunded to it by the Income-tax Officer.

(7)The payment made by an industrial establishment to the Fund under subsection (1) shall be treated as an expenditure - for purposes of assessment of income-tax.

(8)Where any industrial establishment fails to pay the amount due from it as required under this section, it shall, without prejudice to any other liability to which it may be subject under this Ordinance or any other law be liable to pay an additional amount equal to eight per cent. per annum of the amount due from it from the date on which it was originally payable to the date on which it is paid.

(9)The provisions of (the Ordinance), relating to the mode and time of recovery of the income-tax leviable under the Ordinance shall, so far as may be, apply to the recovery of the amount due under subsection (1).

Starting with subsection (1) of section 4 of the W.W.F. Ordinance it appears to me from its perusal that it is referring 'to that total income "which is assessable under the Income Tax Ordinance". Its subsection (3) is mentioning not only return of Income under section 55 of the income Tax Ordinance but also prescribing the mode of calculation of Workers Welfare Fund "with reference to the total income reported in the said return". Subsection (1) is empowering the Income-Tax Officer to determine the exact amount of W.W.F. "on the bass of income so assessed". Its subsection (5) is empowering the Income tax Officer to enhance or reduce the amount of W.W.F. in accordance with the assessed income. Similarly subsection (6) of section 4 of the W.W.F. Ordinance is laying down the provision for refund of the amount of W.W.F, which is found in excess on the basis of an appellate or revisional order. Thus, it is clear that section 4 of W.W.F. Ordinance is referring to that total income which has been defined by section 2(44) read with section 11 of the Income Tax Ordinance and not to the total income worked out on the basis of various incomes derived from one or more activities mentioned in subsection (f) of section 2 of the W.W.F. Ordinance as has been suggested by my learned brother, the Judicial Member. I am not prepared to hold that the expression total income as used in various subsections of section 4 of Workers' Welfare Fund Ordinance means and implies two types of total incomes:

Firstly that which is arrived at by clubbing together all incomes from all sources of income; and

Secondly that which is arrived at by clubbing together all incomes derived from one or more activities mentioned in subsection (f) of section 2 of the Workers Welfare Fund Ordinance.

It is trite law that an expression, which is defined in any legislation is to be given ordinarily the same connotation which is ascribed to it by the legislature in its definition clauses. Since the W.W.F. Ordinance has adopted the same definition of expression "total income" which has been given to it by the Income Tax Ordinance, the learned Judicial Member, with due respect, had no alternative but to apply it unless he could find anything repugnant to the subject or context which unfortunately he could not. Whether that definition was not applicable under the facts and circumstances of this case is altogether a different question. With due respect my learned brother, the Judicial Member seems to have committed serious error in ascribing a meaning to the expression "total income" which could not, by any stretch of imagination, be attributed to it.

With profound respect I feel that, had the learned Judicial Member taken some pains in making research he would have easily come across a decision of this Tribunal reported as 1989 P T D 1004. In this reported case the question arose as to whether the W.W.F. could be levied on the `total income' which was exempted from income-tax. Relying upon the definition of expression "total income" as given in the Income Tax Ordinance it was held that the W.W.F. was chargeable only on that total income which was assessable under the Income Tax Ordinance. At page 1007 of the Report this Tribunal deals with the concept of `total income' to the following words:--

"... Thus, it is clear that the expression `total income' as used .in the W.W.F. Ordinance caries the same meaning, which has been ascribed to it under the Ordinance. Let me, therefore, now revert to section 2(44) of the Income-tax Ordinance and it reads as under:--

"2(44). `Total income' means the total amount of income referred to in section 11 computed in the manner laid down in this Ordinance; and includes any income which under any provision of this Ordinance is to be included in the total income of an assessee'"

Now, if we read section 11 of the Ordinance it appears that it deals with the income of a resident or a non-resident together with the income which accrues or arises or is deemed to accrue or arise within or outside Pakistan. Thus, for the purposes of working out total income all the income earned anywhere in the world is to be included. However, from perusal of section 4 as reproduced above it appears that though the Workers Welfare Fund is charged on the total income yet it is to be worked out at the rate of 2% of so much of total income of an assessee which is assessable under the Ordinance provided it is not less than one lakh in a particular year..."

Let me mention here that the expression `total income' has been used as a term of art both in the Income-tax Ordinance and in the Workers Welfare Fund Ordinance. Ordinarily, the expression "income" connotes the idea of receipts minus expenditure which comes in the hands of a person. Similarly, the concept of "total income" carries the idea of clubbing together of all such incomes. In common parlance neither the word "income" nor expression `total income' includes within its fold any notional income which is to be deemed to have been earned. Likewise a man in the street does not know the distinction between expression "accrue or arise". However, if we read the definition of expression "total income" as laid down in section 2(44) read with section 11 of the Income Tax Ordinance, it appears to us that this definition deals with not only the income which accrues or arises but also with that which is deemed to accrue or arise within or outside Pakistan. Moreover, such total income is also to be computed in the manner laid down by the Income Tax Ordinance. It is perhaps because of these factors that the learned Accountant Member has observed as under:--

"... The conclusion is inescapable that in assessment of a resident assessee, charge in respect of Workers Welfare Fund would be raised at 2% of the aggregated sum representing income from all sources defined as total income...."

I think that the learned Judicial Member should have attached some importance to aforesaid observation and discussed it with his conclusion as it came from an officer having more than 30 years "experience in income"-tax Geld including adjudication of tax appeals, instead of launching himself straightaway in unfathomable seas of laws of Income-tax and that too without 'udder and compass'.

From perusal of the draft order of the learned Judicial Member it appears that he laid much emphasis on the use of expression "industrial-establishment" It is true that the legislature has used the word "industrial establishment" in the W.W.F. Ordinance but it is for the purpose of indicating a special type of assessee which has been subjected to levy of W.W.F. while every "industrial establishment" would necessarily fall within the definition of an assessee if its total income is not less than Rs.1,00,000 but surely every assessee would not fall within the definition of industrial establishment as given in the W.W.F. Ordinance. With due respect, I sincerely feel that the learned J.M. appears to have missed this important clue. Moreover, it is important to note that an "industrial establishment" would still remain an "industrial establishment" if it derives its income from other sources like property, dividend, business etc. etc. provided it also falls within anyone or more clauses of subsection (f) of section 2 of the Workers Welfare Fund Ordinance. I am unable to find out any provision of law which prohibits an "industrial establishment" as defined under subsection (f) of section 2 of the W.W.F. Ordinance, from deriving property income or income from business or from any other source. Now, if there is no such prohibition can it be justifiably held that the `total income' of an "industrial establishment" shall be only that which is derived from anyone or more activities mentioned in subsection (f) of section 2 of the W.W.F. Ordinance. In my humble opinion if an "industrial establishment" as defined under the W.W.F. Ordinance also earns income from trading activity or from house property it would remain an industrial establishment so long it carries on anyone or more activities which are enumerated in subsection (f) of section 2 of the W.W.F. Ordinance.

The learned Judicial Member also appears to have given undue importance to the use of word "concern" in subsection (f) of section 2 of the W.W.F. Ordinance. This word has not been defined either by the W.W.F. Ordinance or by the income Tax Ordinance. It is, therefore, to be given dictionary meaning and thus this word "concern" appears to convey the idea of "a business". However, I feel that the legislature has used this word "concern" simply against the words "persons, association of person, registered firm, I unregistered firm, companies etc. etc." which fall within the net of charging section of the Income tax Ordinance. It is true that the legislature could have easily used the word "assessee" instead of using the words "Person, Association of Person, Registered firm, Unregistered firm, Companies etc, but it was avoided to avoid confusion for the simple reason that though every "industrial establishment" fell within the ambit of the definition of an assessee yet every assessee could not be treated as an "industrial establishment".

Be it as it may, the use of word "concern; does not necessarily lead to the conclusion which my learned brother the Judicial Member has arrived at. If according to dictionary the word "concern" means a business, the use of word concern for every type of activity suggests different type of businesses. But in any case all these businesses or any combination thereof can be subjected to W.W.F. cumulatively as an "industrial establishment". But if an "industrial establishment" has one or more "concerns" in addition to the "concerns" mentioned in subsection (f) of section 2 of the W.W.F. Ordinance, as pointed out earlier it does not cease to be an "industrial establishment". Thus, the incomes derived from all "concerns" either enumerated under subsection (f) of section 2 of the W.W.F. Ordinance or those concerns which do not fall in aforesaid categories shall fall within the definition of "total income" and consequently would be subjected to W.W.F. if it is assessable under the Income Tax Ordinance either in full or in part.

My brother the learned Judicial Member has also discussed in his proposed order that if his interpretation of "total income" is not adopted the benefit of W.W.F. shall go even to un-entitled persons. The learned Judicial Member appears to be of the view that the benefits of W.W.F. should go only to those "workers" who "shed their sweat" in the activities enumerated in subsection (f) of section 2 of the W.W.F. Ordinance. However, with due respect to my learned brother I think that he has arrived at this conclusion because he has not taken into consideration the definition of `worker' which has been given in section 2 of Industrial Relations Ordinance and which has been adopted by clause, (f) of section 2 of the W.W.F. Ordinance. For -the sake of convenience I am reproducing it as under:--

"(xxviii) `Worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to that dispute but does not include any person--

(a)who is being employed mainly in a managerial or administrative capacity, or

(b)who being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensum or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him functions mainly of managerial nature:..."

If we read it carefully it appears to us that this definition excludes those persons who are employed mainly in managerial or administrative capacity or who work in supervisory capacity and draw wages exceeding specified amount. Otherwise every person who is employed in an "establishment" or "an industry" for hire or reward falls within its ambit. Suppose an assessee runs a garment manufacturing factory. Further suppose that it also has an "establishment" where not only factory accounts are maintained but record of purchases and sales of raw material is also kept. In my humble opinion the person employed both in the manufacturing process or in the "establishment" of the factory shall fall within the definition of "worker" and since the assessee shall be meeting the requirement of being an "industrial establishment" its "total income" shall be subjected to W.W.F. Now suppose the "industrial establishment" opens a shop in some commercial area, away from the manufacturing factory, for the purpose of retail sales of the garments manufactured in its factory. In my humble opinion the "worker" employed as salesman or as Chowkidar or as Qasid or Naib Qasid shall still fall within the definition of worker and would be entitled to the benefit to which "a worker" is entitled under the W.W.F. Ordinance for the simple reason that such "worker" would fall within the definition given above. Even at the cost of repetition let me mention that the creation of an establishment for the purpose of retail sales would still be part and parcel of "industrial establishment" and the income derived from it shall again fall within the definition of "total income". I am, therefore, of the view that in view of the definition of the worker as reproduced above the benefit would got to all the workers whether they work in any one or more concerns enumerated in subsection (f) of section 2 of the W.W.F. Ordinance or in any other "establishment" which belongs to that industrial establishment.

Thus, whatever view is taken I respectfully agree with the conclusion arrived at by the learned Accountant Member and consequently the question referred to me is answered in the affirmative.

ORDER

Since I have agreed with the learned Accountant Member all the three appeals stand dismissed and the order recorded by the officers below are hereby confirmed.

M.B.A./2396/T Appeals dismissed.