GHAUS BAKHSH VS MUHAMMAD RAMZAN
1997 P T D 379
[Lahore High Court]
Before Mian Nazir Akhtar and Karamat Nazir Bhandari, JJ
Mir AHMAD ALI and another
versus
REGIONAL COMMISSIONER OF INCOME TAX AND WEALTH TAX, NORTHERN REGION, ISLAMABAD and another
Writ Petition No.789 of 1996, decided on 25/11/1996.
Income Tax Ordinance (XXXI of 1979)--
----Ss. 157 & 165---Income Tax Rules, 1982, 8.205---Legal Practitioners and Bar Councils Act (XXXV of 1973), S.22(2)-B---Constitution of Pakistan (1973), Art. 207---Registration as Income Tax Practitioner---Petitioner submitted certificate of apprenticeship duly signed by Advocate with whom he claimed to have worked as an apprentice---Authority asked petitioner to furnish certificate to the effect that he had worked as apprentice for period of six months under supervision of either a Chartered Accountant, Cost and Management Accountant or Income Tax Practitioner having at least 10 years standing---Petitioner challenged such direction of Authority as also 8.205, Income Tax Rules, 1982 where under certificate required by Income Tax Authorities was to be produced---Advocate of High Court was although entitled as of right to appear, act and plead before any Court or Tribunal in Pakistan (except Supreme Court) on being appointed by concerned party through document in writing signed by that party, yet such right was entirely subject to provisions of Art.207 of the Constitution, Legal Practitioners and Bar Councils Act, 1973, rules made thereunder and any other law for the time being in force---Income Tax Rules, 1982, were amply covered by the expression "any other law for the time being in force"---Mere fact that Advocate of High Court being Legal Practitioner was covered by definition of "authorized representative" under S.157, Income Tax Ordinance, 1979 would not entitle him as of right to be Income Tax Practitioner as well-- Income Tax Practitioner, would mean any person registered as such by Central Board of Revenue out of different categories of persons mentioned in S.157, Income Tax Ordinance;' 1979 including retired officials of Income Tax Department not below the rank of Assistant Commissioner of Income Tax who had remained in service for period of more than 10 years---Where responsibility had been placed on Central Board of Revenue to certify whether certain person was fit to represent a party as Income Tax Practitioner, Board could legitimately put conditions in relation to his suitability or fitness to become Income Tax Practitioner-General right or entitlement of Advocate under provisions of S.22, Legal Practitioners and Bar Councils Act, 1973, has thus, to be distinguished from his capacity as Income Tax Practitioner---Central Board of Revenue, was, therefore, fully competent to frame rules regarding registration of Income Tax Practitioners or matters connected therewith---Rule 205, Income Tax Rules, 1982, was thus validly framed rule with ail its essential requirements.
Usman Ltd. v. The Collector of Customs (Appraisement) Custom House, Quetta and another PLD 1990 Quetta 1; Sapphire Taxtile Mills Ltd. v. Collector of Central Excise and Land Customs, Hyderabad 1990 CLC 456 and The State v. Zia-ur-Rehman and others PLD 1973 SC 49 ref.
Tanvir Bashir Ansari for Petitioners.
Muhammad Bashir Kiani, Standing Counsel for Respondents.
Date of hearing: 4th July, 1996.
ORDER
This Constitutional petition has been filed to call in question the legality of the letters dated 18-12-1995 and 1-1-1996 sent by the Additional Commissioner (Hqs) Income Tax to the petitioners and the validity of rule 205 of the Income Tax Rules framed in the year 1982 by the Central Board of Revenue, respondent No.2 under the provisions of section 165 of the Ordinance.
2. Zulqarnain Jalal Nizami, petitioner No-2 joined the chamber of Mir Ahmed Ali, Advocate, petitioner No. 1, as an apprentice and worked with him for a period of three years. He claimed that he had acquired sufficient knowledge of taxation law and was fit to be enrolled as an Income Tax Practitioner. He made an application before the Regional Commissioner of Income Tax and Wealth Tax, Northern Region, Islamabad, respondent No. 1 for registration as Income Tax Practitioner. Alongwith his application, petitioner No.2 submitted a certificate of apprenticeship duly signed by petitioner No.l. He was required by respondent No.l vide his letter dated 18-12-1995 to furnish a certificate to the effect that he had worked as an apprentice for a period of six months under the supervision of either a Chartered Accountant, Cost and Management Accountant or an "Income Tax Practitioner" having at least 10 years standing. Petitioner No.l sent a reply to the above letter explaining therein the legal position and stating that he being enrolled as an advocate by the Punjab Bar Council was entitled to appear before any Court of Pakistan except the Supreme Court of Pakistan and could accept any person as an apprentice even for the purposes of Income Tax Rules, 1982. However, respondent No.1 did not agree and intimated petitioner No.1 vide letter dated 1-1-1996 that as the relevant rules did not provide for acceptance of persons intending to be registered as Income Tax Practitioners unless the learned counsel with whom they had worked was also registered as "Income Tax Practitioner".
3. The petitioners' learned counsel submits that petitioner No.2 in his capacity as an Advocate is entitled as of right to appear in any Court (except the Supreme Court of Pakistan) or Tribunal as provided under section 22(2)-B of the Legal Practitioners and Bar Councils Act, 1973; that an Advocate is an "authorized representative" within the provision of section 157 of the Income Tax Ordinance, 1979 and can appear on behalf of an assessee before any Income Tax Authority or the Appellate Tribunal; that the provisions of Rule 205 of the income Tax Rules, 1982 requiring a person intending to be registered as an Income Tax Practitioner having 10 years standing is violative of the provisions of section 157 of the Ordinance and that even otherwise in the presence of the special rule-making power under section 157 (10) of the Ordinance vested in the C.B.R. for the registration of Income Tax Practitioners and matters connected therewith the rules framed under the general rule-making powers by virtue of section 165 of the Ordinance are invalid and ultra vires of the provisions of section 157 of the Ordinance. On the other hand, learned Standing Counsel urged that Rule 205 was validly made and that for registration as Income Tax Practitioner a person must work as an apprentice for a period of six months with an Income Tax Practitioner as defined under section 157 (2)(c) of the Ordinance.
4. I have given anxious consideration to the arguments raised by the learned counsel for the petitioners but find myself unable to agree with him. True, an Advocate of the High Court is entitled as of right to appear, act and plead before any Court or Tribunal in Pakistan (except the Supreme Court) on being appointed by a party for the said purpose through a document in writing signed by the party but the said right is entirely subject to the provisions of Article 207 (3) (a to c) of the Constitution, the Legal Practitioners and Bar Councils Act, 1973, rules made thereunder and any other law for the time being in force. The Income Tax Rules, 1982 are amply covered by the expression, "any other law for the time being in force". The mere fact that an Advocate or an Advocate of High Court being a legal practitioner is covered by the definition of "authorized representative" under section 157 of the Income Tax Ordinance does not entitle him as of right to be an Income Tax Practitioner as well. An Income Tax Practitioner is defined under section 157 (2)(c) of the Ordinance, as follows:--
" income tax practitioner' means a person who is registered as such by the Central Board of Revenue, being a person who possesses such (***) qualifications as may be prescribed in this behalf or who has retired after putting in satisfactory service in the Income Tax Department for a period of not less than ten years in a post or posts not below the rank of an (Assistant Commissioner of Income Tax), and includes any person who was, and had continued to be, registered as an Income Tax Practitioner immediately before the commencement of this Ordinance".
Thus an Income Tax Practitioner means a person registered as such by the C.B.R. out of different categories of persons mentioned in section 157(2)(c) including retired officials of the Income Tax Department not below the rank of Assistant Commissioner of Income Tax who had remained in service for a .period of more than 10 years. Obviously, the persons covered by the expression "authorized representative" are not included in the definition of an Income Tax Practitioner. The reason is obvious because an "authorized representative" is appointed by a party entirely at his own choice and risk for the limited purpose of appearing before any Income Tax Authority or the Appellate Tribunal. However, if the responsibility is placed on the C.B.R. to certify whether a person is fit to represent a party as an income Tax Practitioner the Board can legitimately put conditions in relation to his suitability or fitness to become an Income Tax Practitioner. Therefore, the general right or the entitlement of an Advocate under the provisions of section 22(2)-B of the Legal Practitioners and Bar Councils Act, 1973 has to be distinguished from his capacity as an "Income Tax Practitioner" and his entitlement to accept an apprentice for the purposes of giving him specialized training so as to enable him to be enrolled as an Income Tax Practitioner within the letter and spirit of the Income tax Ordinance and the rules framed thereunder.
4. The argument that in the presence of special powers under section 165 resort to general powers under section 157 (10) of the Ordinance is illegal, has not impressed me. Both under section 157 (10) and section 165 of the Ordinance the rule-making authority is the Central Board of Revenue. Under subsection (1) of section 165 of the Ordinance, the Board is empowered to make rules by a notification in the official Gazette for carrying out the purposes of the Ordinance. One of the purposes is registration ofsuitable persons as Income Tax Practitioners to provide legal assistance and guidance to the general public for making assessment of their income, Preparation of their Income Tax Returns, making petitions before the Income Tax Authority of filing appeals before the Tribunals etc. Therefore, the C.B.R. under the general rule-making power was fully competent to frame rules regarding registration of Income Tax Practitioners and matters connected therewith or incidental thereto including those relating to their code of conduct. The rules framed under section 165 do not become invalid merely because the C.B.R. had not chosen to make rules under the special powers available to it under section 157(10) of the Ordinance. Hence, respondent No. 1 rightly refused to entertain the application submitted by petitioner No.2 to be registered as an Income Tax Practitioner without fulfilment of all the conditions laid down under the Income Tax Rules, 1982.
5. It is also significant to mention that the rules are in force since the year, 1982 and petitioner No.1 being a legal practitioner can be presumed to be fully aware of the same. At the time when he accepted petitioner No.2 as his apprentice, he was required to intimate the Regional Commissioner of Income Tax in the prescribed form within 15 days the factum of. having accepted petitioner No.2 as an apprentice. After the expiry of three years, he gave a certificate to petitioner No.2 that he had worked with him as an apprentice. Petitioner No. 1 knew that he was not registered as an Income Tax Practitioner and under the rules he could not accept any person intending to be registered as an Income Tax Practitioner as his apprentice. He should have advised petitioner No.2 to get apprenticeship with a duly registered Income Tax Practitioner to avoid prejudice to him. However, he opted to ignore the rules and ultimately challenged the same after the lapse of more than three years when respondent No. 1 refused to entertain or accept the application of petitioner No.2 for registration as an Income Tax Practitioner.
6. In support of his contention that in the presence of special provision of section 157 (10) of the Income Tax Ordinance, 1979 for the registration of Income Tax Practitioners and matters connected therewith resort to the general rule-making powers under section 165 of the Ordinance was illegal, the petitioner's learned counsel has relied on the judgments in the cases of Usman Ltd. v. The Collector of Customs (Appraisement), Custom House, Quetta and another PLD 1990 Quetta 1, Sapphire Taxtile Mills Ltd. v. Collector of Central Excise and Land Customs, Hyderabad 1990 CLC 456 and Toe State v. Zia-ur-Rehman and others PLD 1973 SC 49. The above judgments proceed on their own distinguishable facts and the law laid therein has no application in relation to the controversy involved in the present case. In the case of Usman Ltd. it was held that levy of surcharge and Iqra surcharge as additional custom duty on the imported goods was made through the Finance Ordinance, 1982 and Finance Ordinance, 1983 and both the enactments specifically excluded applicability of any notification allowing exemption of custom duty. Under these circumstances, it was held that by virtue of the express provisions in the special enactments, the general exemption granted in respect of custom duty under section 19 of the Customs Act was particularly ineffective and inoperative qua the additional custom duty levied under the special laws. The case of Sapphire Taxtile Mills Ltd. also relates to the provisions of Finance Act and the Customs Act and it was held that the exemption granted under section 19 of the Customs Act would not affect the levy of surcharge of the Iqra surcharge under the Finance Ordinance, 1982 or Finance Act, 1985 which were special enactments. It was further held that exemption from levy of surcharge and Iqra surcharge could be claimed only if notification to that effect was issued under the Finance Ordinance, 1982. Obviously, this is not the situation in the present case. In Zia-ur-Rehman's case it was held that where in a statute there are both general as well as special provisions for meeting a particular situation then it is the special provision which must be applied to that particular case of situation. There is no cavil with the above proposition of law. If an express provision exists in the statute then that provision shall take precedence over a general one. The precedent case involved interpretation of Constitutional provisions embodied in Article 281(2) providing validation to all legislative measures enacted during the period commencing from 25th of March, 1969 However, when read in the light of provisions of clauses (2) and. (3) of Article 280, it was held that notwithstanding the blanket validation given by clause (2) of Article (281) the proclamation of 25th of March, 1969 and the orders specified in the 6th Schedule and all Martial Law orders and regulations stood repealed except a few specified in the 7th schedule. It was further held that the consequence of the repeal was that the provisions of Article 295 of the Interim Constitution, were automatically attracted from the moment of repeal. Applying the principle of generalia specialibus non derogant (general words do not derogate from special). The Court held that the provisions of Article 295 would be applied to the repealed legislative measures and thereunder it was significant that only act "duly done" or things "suffered under the law" were protected. Hence, acts done with mala fides or without jurisdiction or acts which are coram non judice would clearly not be acts duly done and, therefore, blanket cover provided under section 281(21 could not extend to such acts. The present case is not one of any conflict between a special and general provision would prevail. It is simply a case of option to be exercised by the competent authority to make rules-under the general rule making powers or under special powers meant for registration of income Tax Practitioners.
7. For the foregoing discussion, I do not find any merit in this petition, which is dismissed in limine.
A.A./A-100/L Petition dismissed.