FIDA HUSSAIN VS YEN PASHA, 1994 PTD-KARACHI-HIGH-COURT-SINDH 501 (1993)

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

----First Sched., R. 6 & S.10(7)---Surcharge---Provision of taxation or taxation reserve has to be excluded from the total income for levy of surcharge.

Commissioner of Income Tax v. Phoenix Assurance Co. Ltd. 1991 PTD 1028 ref.

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

----S.10(2A)(7) & First Sched., R. 1---Insurance Company---Income Tax Officer has to assess on the basis of the balance declared by the annual accounts required to be prepared under the Insurance Act, 1938---Provision of S.10 of the Act can be applied only for the purpose of excluding expenditure other than which may be allowed under S.10 for computing the profits and gains of the business---Application of S.10 is for limited purpose and provision of S.10(2A) cannot be applied under this garb.

Commissioner of Income-tax v. Mercantile Fire and Central Insurance Company Limited 1989 PTD 142 fol.

(c) Finance Act (XXV of 1980)---

----Sched. I, Part III, Para. A, Explanation (a)---"Retained income"--- Income-tax liability payable for relevant assessment year could be included for purposes of working out "retained income" for levy of surcharge.

Commissioner of Income Tax v. Pakistan Tobacco Company Ltd. 1988 PTD 66 fol.

Shaik Haider for Applicant.

Muhammad Fareed for Respondent.

Date of hearing: 30th March, 1093.

JUDGMENT

NASIR ASLAM ZAHID, CJ.---In respect of the Assessment Year 1977-78 of the respondent/assessee, the .application under section 136(1) of the Income Tax Ordinance, 1979, having been dismissed by the learned Income Tax Appellate Tribunal, the Department has filed the present application under section 136(2) of the Ordinance, seeking opinion of this Court in respect of the following four questions:

"(1) Whether on the facts and in the circumstances of the case, the learned I.TA.T. was justified in deleting the addition of Rs.2,02,3W made by the I.T.O. on account of provision for taxation as the provisions are not the determined liability and therefore not allowable under the Repealed Act/Ordinance?

(2) Whether on the facts and in the circumstances of the case the learned LTAX, was justified in deleting the amount of Rs.1,40,425 added by the I.T.O. under S.10(2A) of the Repealed Act especially in view of the facts that section 10(7) of the Repealed Act does not exclude the application of section 10(2A) while computing the profit and gives of an Insurance Co. under the Rules contained in the First Schedule to the Act?

(3) Whether on the facts and in the circumstances of the case the learned Income Tax Appellate Tribunal was justified in confirming the relief given by the learned C.I.T. (Appeals) to the extent that Surcharge be levied on the tax on difference between the returned income and assessed income?

(4) Whether on the facts and in the circumstances of the case, the learned Income Tax Tribunal was justified in holding that the amount of tax paid by the assessee should be treated as retained income for meeting the working capital requirement of the business and that no surcharge is leviable on such taxes which are not in assessee's hand?"

2. We have heard learned counsel for the parties. It is informed by learned counsel that the questions raised in this application have already been considered earlier by the Supreme Court and this Court.

3. As regards the first question relating to provision for taxation, reference can be made to the decision of the Supreme Court in the case of Commissioner of Income Tax v. Phoenix Assurance Co. Ltd., reported in 1991 PTD 1028. The decision of the Supreme Court was against the Department.

4. The second question is relating to the add back by the I.T.O. under section 10(2) of the Repealed Income-tax Act, 1922. On this question also, there is a decision of this Court in the case of Commissioner of Income Tax v. Mercantile Fire and Central Insurance Company Limited (1989 PTD 142). The decision was against the Department.

5. The questions Nos.3 and 4 relate to Surcharge on the tax on difference between the retained income and assessed income and on these questions also there are various decisions of this Court. Detailed decision is given by this Court in the case of Commissioner of Income Tax v. Pakistan Tobacco Company Ltd. 1988 PTD 66. The decisions have been against the Department.

6. In the circumstances, we find no merit in this application which is dismissed but with no order as to costs.

M.BA./C-309/K????????????????????????????????????????????????????????????????????? Application dismissed.