Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S.53(4)--‑C.B.R. Circular No.4 of 1995, dated 9‑7‑1995‑‑‑Advance payment of tax‑‑‑Compensation‑‑‑Assessment year 1995‑96‑‑‑ Compensation on advance tax under S.53(4) of the Income. Tax Ordinance, 1979 paid during the financial year 1994‑95 was not allowed‑‑‑Validity‑‑‑Any circular or amendment in law, if provided withdrawal of the facility from a particular date or time, the. Revenue Officers on their own accord could not draw any analogy to give same a retrospective or prospective effect‑‑‑Order introducing retrospective effect contrary to essence and purpose of circular amounted to frustrate the relief made available to assessee and law also did not permit such practice, same being illegal, unlawful and without any justification‑‑ Order of the two Authorities below was annulled and compensation on advance tax under S.53(4) of the Income Tax Ordinance, 1979 was allowed by the Tribunal.

Faisal Abdul Sattar, A.C.A. for Appellant.

Fahimul Haque, D.R. for Respondent.

Date of hearing: 17th October, 2001.

ORDER

S. HASAN IMAM (JUDICIAL MEMBER).‑‑‑By this order, we would like to decide an appeal of the assessee preferred from the order of the learned CIT(A) who was pleased to maintain the action of the DCIT in not allowing compensation on advance tax under section 53(4) of the Income Tax Ordinance, 1979, amounting to Rs.12,945.

2. Facts in brief are that compensation at 6 % per year was allowed on payment of advance tax as per provisions of section 53, which was omitted by the Finance Act of 1995, C.B.R. Circular No.4 of 1995, reveals that advance tax payments made during financial year 1995‑96 will not be entitled to any compensation and these will be amounted far like the withholding taxes. It is argued that assessee is entitled for compensation as matter pertains to income year 1994‑95. Before making further discussion, it would be proper to refer the extract from C.B.R. Circular. N0.4 of 1995, dated July 9, 1995:‑‑‑

"Compensation @ 6 % per year is allowed on payment of advance tax. No such compensation is given on tax at source. This is anomalous and creates certain accounting problems. Section 53(4) has, therefore, been deleted. Accordingly, the advance tax payments made during the Financial Year 1995‑Qo will not be entitled to any compensation and these will be accounted for like the withholding taxes."

3. The finding of learned CIT(A) "that the law should be read as it stands and if compensation was abolished from the financial year 1995‑96, it could not be allowed in the previous years as the law did not add as to it being retrospective", bears no reason as circular referred above to would be applicable on the advance tax

payments made during financial year 1995‑96 and not before. .

4. Any circular or amendment in law, if proposes withdrawal of the facility from a particular date or time, the Revenue Officers on their own accord cannot draw any analogy to give it a retrospective or prospective effect. The order of the, learned CIT(A) introducing retrospective effect contrary. to essence and purpose of circular amounts to frustrate the relief available to assessee and law also does not permit such practice, being illegal, unlawful and without any justification.

5. We, therefore, find reasons to annul the order of the two officers below whereby allow, compensation on advance tax under section 53(4) of the Income Tax Ordinance, 1979 amounting to Rs.12,945. Order accordingly.

C.M.A./M.A.K./220/Tax(Trib.)Order accordingly.