2001 P T D 3919

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Hamid Ali Mirza, JJ

FEDERATION OF PAKISTAN and others

versus

Mrs. SAMRA SHAKEEL and others

Civil Appeals Nos.2221 to 2229 of 1998, decided on 28/03/2001.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 15‑4‑1998 passed in Writ Petitions Nos.21302, 12975, 17870. 16824, 13268, 6792, 27646, 11705 and 11706,of 1997).

(a) Wealth Tax Rules, 1963‑‑‑

‑‑‑‑R.8(2)(c)(i)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider; whether the reasons for finding of the High Court to the effect that the provisions of R. 8(2)(c)(i) of Wealth Tax Rules, 1963 were ultra vires, were in consonance with law.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.25(1)‑‑‑Equal protection of law‑‑‑Principle of reasonable classification/ distinction‑‑‑Scope‑‑‑Constitution provides that all citizens are equal before law and entitled to equal protection of law‑‑‑Equal protection, however, does not envisage that every citizen is to be treated alike in all circumstances but it contemplates that persons similarly situated or similarly placed are to be treated alike and that reasonable classification/distinction is permissible.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.25(1)‑‑‑Equal protection of law‑‑‑Reasonable classification of companies‑‑‑Bar laid down in Art.25 of the Constitution‑‑‑Applicability‑‑‑ Constitution does not forbid reasonable classification of companies for the purpose of taxation‑‑‑Bar laid down in Art.25 of the Constitution is that there should be no discrimination within the same class of people or group of people and it does not prohibit reasonable classification but such classification must be rational and based on intelligible differentia which distinguishes persons or things that are grouped together from those which are let, oat of the group and that difference must have rational nexus with the object sought to be achieved by such classification.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 rel.

(d) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.25‑‑‑Equal protection of law‑‑‑Taxation‑‑‑Scope‑‑‑Equal protection ref law in the field of taxation does not mean that the tax burden should be equally imposed on every person, property or thing but it means that the persons or objects similarly situated and in similar circumstances, should be taxed by the same standard‑‑‑Taxing statute, rules or any provision thereof cannot be struck down merely on the ground that different tax is imposed on differently placed companies‑‑‑Differentiation between a group of companies on the basis of rational and reasonable classification is permissible.

(e) Wealth Tax Rules, 1963‑‑‑

‑‑‑‑R.8(2)(c)(i)‑‑‑Constitution of Pakistan (1973), Art.25‑‑‑Equal protection of law‑‑‑Discrimination‑‑‑Difference in determination of value of shares of companies quoted on a stock exchange and those not quoted on stock exchange‑‑‑Such difference not an act of discrimination‑‑‑Where both types of companies are differently grouped, the circumstances in determining the value of shares by different modes cannot be discriminatory.

(f) Wealth Tax Rules; 1963‑‑

‑‑‑‑R.8(2)(c)(i)‑‑‑Constitution of Pakistan (1973), Art.25‑‑‑Equal protection of law‑‑‑Discrimination‑‑‑Reasonable classification‑‑‑Assessment‑‑‑Vices of R.8(2)(c)(i) of Wealth Tax Rules, 1963‑‑‑Determination of value of shares of unquoted companies unlike that of .the quoted companies‑‑‑High Court declared the provisions of R.8(2)(c)(i) of Wealth Tax Rules, 1963, as ultra vices‑‑‑Plea raised by the assessees was that the rule in question was confiscatory in its nature‑‑‑Validity‑‑‑Plea was misconceived, as the rule in question was neither discriminatory nor overriding any provision of Wealth Tax Act, 1963‑‑‑Provision of the rule was based on reasonable classification as the two sets of companies were distinct and different from each other‑‑ Determination of value of shares of unquoted companies unlike that of the quoted companies was controlled by private limited companies, therefore, their break‑up/market value being not freely determinable in the open market‑‑‑Supreme Court declined to take any exception to the formula laid down in the rule in question‑‑‑Judgment of High Court was set aside and the provisions of R.8(2)(c)(i) of Wealth Tax Rules, 1963, were held to be intra vires.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 rel.

M.U.A. Khan v. M. Sultan PLD 1974 SC 228; Ziauddin v. Punjab Local Government 1985 SCMR 365 and Federation of Pakistan v. Azam Ali 1985 SCMR 386 distinguished.

M. Ilyas Khan, Advocate Supreme Court and Ch. M. Aslam C hattha, Advocate‑on‑Record for Appellants.

Sh. Salah‑ud‑Din, Advocate‑on‑Record for Respondents.

Date of hearing: 28th March, 2001.

JUDGMENT

MIAN MUHAMMAD AJMAL, J.‑‑‑These appeals, by leave of the Court, are directed against the common judgment of the Lahore High Court, Lahore, whereby Writ Petition No. 12975 and other connected petitions filed by the respondents were allowed.

2. Brief facts are that the respondents are shareholders in various incorporated companies in Pakistan which are not quoted on a Stock Exchange. It is the common ground between the parties that the shares in the company form assets in the hands of the shareholders and are liable to payment of wealth tax under the Wealth Tax Act, 1963 (hereinafter to be called the Act). The dispute is with regard to the determination of the value of the shares, inasmuch as, according to rule 8(2)(c)(i) of the Wealth Tax Rules, 1963 (hereinafter to be called the Rules), if a Company is listed at the Stock Exchange, the value of the share for the purpose of wealth tax would be the face value of the share or the price at which it is quoted at the Stock Exchange or whichever is lesser, and in case of unlisted Companies the value of the share would be taken to be either the face value or the break‑up/market value whichever is higher. The respondents objected to the above formula in respect of unlisted Companies. The plea of the respondents was that under the Act and the rules framed thereunder, tax can only be levied on the market value of the assets held by the assessee and cannot be charged on a notional value which is different from the market value or the price. They further emphasised that there was no justification in the formula that in case of listed companies the value of the share shall be taken to be either the face value or the quoted price whichever is lesser but in case of unlisted companies value would be the break‑up value or the face value whichever is higher as according to them the above formula was discriminatory and violative of Article 25 of the Republic of Pakistan, 1973. The learned High Court, vide his common judgment no legal effect and directed the Authorities concerned to tax on the market value of the shares held by the respondents. This judgment was assailed by the appellants through nine petitions; wherein leave was granted as under:‑‑‑

"We are inclined to grant leave to consider, whether the reasons found favour with the learned Judge in Chamber to hold the above provisions of the Rules as ultra vires are in consonance with law. Leave is granted: The appeals arising out of the above petitions may be fixed at an early date as the law point involved in the above cases may affect a number of other similar cases."

3. Learned counsel for the appellants contended that the High Court was not justified to declare rule 8(2)(c)(i) of the Rules to be ultra vires and of no legal effect as this rule is being followed since 1963 without any objection from the respondents' side. He submitted that the learned High Court was not correct in holding that the classification of shares of the quoted‑and unquoted companies was not based on reasonableness as in the same judgment it was observed that there was no cavil that the equality clause did not prohibit or forbid classification and that it arbitrarily struck down the above rule when the same was being acted upon icy the parties concerned without any objection since its promulgation. In support of his contentions, he relied upon the rule lard down in I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary. Ministry of Finance, Islamabad and 6 others P L D 1997 SC 582.

4. He further submitted that the market value of shares of the quoted Companies can be ascertained from the stock exchange whereas the shares of unquoted Companies being not listed on the stock exchange, their market value cannot be authentically determined/ascertained. While defending the rule in question, he submitted that the policy of the Government has been to encourage investment in the quoted companies as market value of their share is publicly known while in the private limited companies/non‑quoted companies, it is difficult to ascertain the value of the share in the open market. He urged that the rule is neither discriminatory nor violative of any fundamental rights as guaranteed by the Constitution of Pakistan, therefore, the impugned judgment is not sustainable.

5. Conversely, learned counsel for the respondents submitted that according to section 3 of the Act, the wealth tax shall be charged for every financial year on the net wealth/assets at the correspondent valuation date, from every individual, firm, association of persons whether incorporated or not and company at the rates specified in the Schedule. He referred to section 411) of the Act to define 'net wealth', which, according to him, means the value of assets on the valuation date held by the person or association of persons. For the definition of the word 'asset' he referred to subsection (5) of section 2 of the Act and according to him, it includes individual property of every description whether movable or immovable and in case of firm or association of persons whether incorporated or .not, and a company, immovable property held for the business of construction or sale, or letting out of property. He referred to section 7 of the Act, according to which, the value of any asset, other than cash, for the purposes of this Act, shall be estimated by the Deputy Commissioner in accordance with the Rules made tinder section 46 of the Act.

6. He submitted that impugned Rule 8(2)(c)(i) is violative of the parent Act i.e. Wealth Tax Act, 19.63, according to which wealth tax is charged from the listed companies on the market value of the assets in hand at the corresponding date but in case of shares of unlisted companies their market value/break‑up value is not taken as value of the share but its face value is taken for charging tax, which is against sections 2(5), 3, 4(1), 7 and 46 of the Act. He contended that rule 8(2)(c)(i) of the Act is patently and manifestly discriminatory, inasmuch as, the value of the shares of the listed companies is taken according to the market value or face value whichever is lower for the purpose of wealth tax while the value of the shares of the non- listed companies is taken on face value or market value whichever is higher. He elaborated his arguments with an example, stating that if the share of Rs.10 of a listed company is marketed at Rs.200, it shall be assessed at Rs.10 for wealth tax purpose and if its market value goes down to Rs.5 or even less, it would be assessed at the lesser value, but on the contrary the shares of .the unlisted companies are assessed on face value even if their market value is less than their face value, which is manifestly a patent discrimination. He submitted that the rule in question is unconstitutional being confiscatory in its nature as the respondents are being deprived of their property by a discriminatory rule. He urged that tax powers cannot be exercised to confiscate peoples' Constitutional guaranteed rights and even the Legislature has no power to tax the people to the point of confiscation. Reliance was placed on Messrs Elahi Cotton Mills Ltd. (ibid).

7. He further submitted that the said rule overrides the aforesaid provisions of the Act, hence the same is ultra wires and unsustainable in law. Reference was made to M.U.A. Khan v. M. Sultan PLD 1974 SC 228 Ziauddin v. Punjab Local Government 1985 SCMR 365 and Federation of Pakistan v. Azam Ali 1985 SCMR 386.

8. We have heard the learned counsel for the parties and have perused the record of the case. In order to resolve the controversy between the parties it would be appropriate to produce rule 8(2)(c)(i) of the Rules, which is as follows:‑‑‑

"8. Valuation of assets other then cash.‑‑‑

(1) ... .... ... ... ... ...

(1A) ... .... ... ... ... ...

(2) Shares and securities

(a)

(c) (i) The value of the shares of joint stock companies registered in Pakistan which are quoted on a recognised Stock Exchange shall be taken to be the face value, or the break‑up value as determined in the manner provided in sub‑clause (ii), whichever is lower and the value of shares of joint stock companies registered in Pakistan which are not quoted on a recognised Stock Exchange shall be taken to be the face value, or the break‑up value so determined, whichever is higher.

(ii) The break‑up value shall be determined in the following manner, namely:‑‑‑

The total wealth of the company shall first be determined. This shall be done by adding to the paid‑up capital, the debentures, reserves and the balance as per Profit and Loss Account, the provision for liabilities in the balance sheet being carefully scrutinised with a view to excluding therefrom items which should really form part of the reserves. From the total so arrived at, the paid‑up value of the preference shares and the debentures shall be deducted. The resulting balance shall be divided by the amount of the paid‑up ordinary share capital to arrive at the value of each rupee of paid‑up capital. The value of shares held by the assessee shall then be determined by multiplying the sum so arrived at by the paid‑up vain of Inch shares "

The Rules were made by the Central Board of Revenue in exercise of the powers conferred upon it by section 46 of the Act for carrying out the purposes of the Act, hence, these statutory Rules have the force of law whereby reasonable restrictions could be imposed on two different classes of companies for imposition of wealth tax. The main grievance of the respondents non‑quoted companies is that they could not be discriminated against the quoted companies, inasmuch as, the value of the share of the quoted companies is taken on the face value or the break‑up/market value, whichever is lower but in case of non‑quoted companies, the value of share is taken on its face value or the break‑up/market value whichever is higher. The controversy between the parties is on the phrases of 'whichever is lower' and 'whichever is higher' and respondents' case is that they are being discriminated by the latter phrase. Article 25(1) of the Constitution of Pakistan provides that all citizens are equal before law and are entitled to equal protection of law. Equal protection, however, does not envisage that every citizen is to be treated alike in all circumstances but it contemplates that persons similarly situated or similarly placed are to be treated alike and that reasonable classification/distinction is permissible. The rule in question has classified the companies as quoted and non‑quoted, on the ground that the former's shares are listed with the Stock Exchange and their break up/market value can easily be ascertained whereas the latter's shares are not listed with the Stock Exchange and as such their market value cannot be conveniently ascertained. The aforesaid classification is based on substantial difference between the two classes of companies which has reasonable relation to the object sought to be achieved and thus the rule is‑neither unreasonable nor arbitrary. Article 25(1) of the Constitution does not forbid reasonable classification of companies for the purpose of taxation. The bar laid down in the said Article is that there should be no discrimination within the same class of people or group of people and it does not prohibit reasonable classification but such classification must be rational and based on intelligible differentia which distinguishes persons or things that are grouped together from those which are left out of the group and that difference must have rational nexus with the object sought to be achieved by such classification. In case of I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041 this Court after considering considerable case‑law on Articles 25(1) of the Constitution, formulated the following principles with regard to equal protection of law and reasonableness of classification:‑‑‑

"26. From the above‑cited cases the following principles of law are deducible:‑‑

(i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; .

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to, make a classification reasonable, it should be based‑‑

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

27. The learned Attorney‑General has also referred in extenso certain passages from V.N. Shukla's Constitution of India, 7th Edition. Suffice to refer a passage wherein the learned author has inferred following principles as to classification with reference to various judgments of the Indian Supreme Court on Article 14 of the Indian Constitution:‑‑‑

(a) A law tray be Constitutional even though it relates to a single individual if, on account of sorter special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.

(b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. The person, therefore, who pleads that Article 14 (correspondent to Article 25 of Pakistani Constitution) has been violated must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment 'has been unjustifiably made. However, it is extremely hazardous to decide the question of the Constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact.

(c) It must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience, 'and that its discriminations are based on adequate grounds.

(d) Tie Legislature is free to recognise the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest.

(e) In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

(f) While good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.

(g) A classification need not be scientifically perfect or logically complete.

(h) The validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration. "

The same proposition in a different context came Runner consideration in Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; wherein this Court after discussing the case‑law and the treaties deduced the following principle

"31. From the above case‑law an the treaties, inter alia the following principles of law are deducible:‑‑

(i) That in view of wide variety of diverse economic criteria, which are to be considered for the formulation of a fiscal policy, Legislature enjoys a wide latitude in the matter of selection of persons, subject- matter, events, etc. for taxation. But with all this latitude certain irreducible desiderata of equality shall govern classification for differential treatment in taxation law as well.

(ii) That Courts while interpreting laws relating to economic activities view the same with greater latitude that the laws relating to civil rights such as freedom of speech, religion, etc. keeping in view the complexity of economic problems which do not admit of solution through any doctrinaire or strait jacket formula as pointed out by Hones, J. in one of his judgments.

(iii) That Frankfurter, J., in Morey v. Doud (1957) U.S. 457 has remarked that 'in the utilities, tax and economic regulation cases, there are good reasons for judicial self‑restraint if not judicial deference to the legislative judgment'.

(iv) That the Legislature is competent to classify persons or properties into different categories subject to different rates of tax. But if the same class of property similarly situated is subject to an incidence of taxation, which results in inequality amongst holders of the same kind of property, it is liable to be struck down on account of infringement of the fundamental right relating to equality.

(v) That 'a State does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonable'. "(Willi's Constitutional Law).

(vi) That the tests of the vice of discrimination in a taxing law are less rigorous. If there is equality and uniformity within each group founded on intelligible differentia having a rational nexus with the object sought to be achieved by the law, the Constitutional mandate that a law should not be discriminatory is fulfilled.

(vii) That the policy of a tax, in its operation, may result in hardships or advantages or disadvantages to individual assessees which are accidental and inevitable. Simpliciter this fact will not constitute violation of any of the fundamental rights.

(viii)That while interpreting Constitutional provisions Court should keep in mind, social setting of the country, growing requirements of the society/nation, burning problems of the day and the complex issues facing the people, which the Legislature in its wisdom through legislation seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.

(ix) That the law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of legislation keeping in view that the rule of Constitutional interpretation is that there is a presumption in favour of the constitutionality of they, legislative enactments unless ex facie if is violative of a Constitutional provision."

It is manifest from the above case‑law that reasonable classification of persons, properties or things is in no way violative of the principle of equality and differentiation between a class of persons on the basis of valid and reasonable classification is permissible under the Constitution. The equal protection of law in the field of taxation does not mean that the tax burden should be equally imposed on every person, property or thing but it means that the persons or objects similarly situated and in similar circumstances should be taxed by the same standard. A taxing statute, Rules or any provision thereof cannot be struck down merely on the ground that different tax is imposed on differently placed companies, as differentiation between a group of companies on the basis of rational and reasonable classification is permissible. The difference in determination of value of shares of companies quoted on a stock exchange and that of those companies not quoted on stock exchange, being differently grouped, the circumstances in determining the value of shares by different modes cannot be said to be discriminatory.

9. The contention that the rule in question is confiscatory in its nature s misconceived, for, as it has been observed above that the same is neither discriminatory nor overrides any provision of the Act but is based on reasonable classification as the two sets of companies are distinct and different from each other. As the determination of value of shares of quoted companies unlike that of the quoted companies is controlled by private limited companies, therefore, their break‑up/market value being not freely determinable in the open market, no exception‑to the formula laid down in the rule in question can be taken. The contention of the learned counsel is thus accordingly repelled.

10. For the foregoing reasons, we allow these appeals, set aside the impugned judgment and hold the rule in question to be intra vires. There shall be no order as to costs.

Q.M.H./M.A.K./F‑42/5Appeal allowed.