Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss.80DD [as inserted by Finance Act (IV of 999)] & Second Sched., Part I, Cl. (118‑C), Part 1'I, Cl. (6‑AA), Part IV, Cl. (58)‑‑‑Central Board of Revenue Notification No.1283(1)/90‑‑‑Protection of Economic Reforms Act (XII of 1992), S.6‑‑‑Constitution of Pakistan (1973), Arts.2A, 8, 18, 25, 199 & Fourth Sched., Legislative List, Part I, Entry 47‑‑‑Constitutional petition‑‑‑Petitioner contended that S.80‑DD of the Income Tax Ordinance, 1979 was discriminatory, thus, violative of Arts. 2A & 25 of the Constitution that petitioner dealing with import of RBD Palm Oil and Soya Bean Oil for manufacture of vegetable ghee and cooking oil was enjoying exemption under Notification No.1283(1)/90 as well as under Cl. (118‑C) of Second Sched to the Income Tax Ordinance, 1979; that S.80‑DD of the Ordinance had interfered with such exemption and put unwarranted restriction, on fundamental right of petitioner to conduct such business and that S.80‑DD of the Income Tax Ordinance was ultra vires the Entry 47 of Fourth Sched to the Constitution‑‑‑Validity‑‑‑Section 80‑DD of the Ordinance was in the nature of presumptive tax regime and was substantially of the same nature as S.80‑D of the Ordinance, which had been found to be valid by Supreme Court in case of Elahi Cotton Mills (PLD 1997 SC 582)‑‑ Petitioner if enjoyed any protection/exemption under S.6 of Protection of Economic Reforms Act, 1992, then he could ,agitate ‑the same before Departmental Authorities in the light of the said judgment of the Supreme Court‑‑‑Supreme Court had dealt with all such points raised in the present Constitutional petition, no fresh consideration thereof by High Court was required no fresh point of law requiring consideration by High Court having been raised, Constitutional petition was dismissed in limine.

Messrs Illahi Cotton Mills and others v. Federation of Pakistan PLD 1997 SC 582 rel.

Udha Ram Rajput for Petitioner,

Nemo for Respondents.

Date of hearing: 5^th December, 2001.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI. J.‑‑‑Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1975, the declaration is sought to the effect that the amend ments in the Income Tax Ordinance, by insertion of section 80 DD and Clause (6AA) Part II of Clause (58) in Part IV of the Second Schedule are ultra vires the Constitution and without any lawful authority.

Heard Mr. Udha Ram Rajput, learned counsel for the petitioner. It is contended that section 80DD of the Income Tax Ordinance, 1979 inserted by Finance Act, 1999 is discriminatory, and therefore, violates the Constitutional mandate, contained in Articles 2A and 25 of the Constitution. It is further contended that the petitioner dealing with import of RBD Palm Oil and Soya Bean Oil for the manufacture of vegetable ghee and cooking oil was enjoying exemption under Notification No. 1283(1)/90 as well as under clause (118‑C) of Second Schedule to the Income Tax Ordinance, 1979 and section SODD interferes with the exemption and consequently is liable to be struck down as unconstitutional. He has further submitted that section 80DD purports to impose a minimum tax on the imports by the petitioner. According to him, the Federal Legislature has power to impose income tax, under Entry 47 of Fourth Schedule to the Constitution on the income. of a citizen. The imports or purchases and outgoing expenditure can under no circumstances be equated with the income and thus section 80DD is ultra vires the entry 47 of. Fourth Schedule to the Constitution. He has further contended that the impugned section has put unwarranted restriction on the fundamental right of the petitioner to conduct the business of manufacturing vegetable ghee. According to learned counsel the impugned provision has put heavy burden of tax on the petitioner even without resulting in any income and thus the levy is ex-proprietary and as such in ultra vires the Article 18 read with Article 8 of Constitution and any action taken by the respondent on the basis of the provision of section 80DD is ultra vires, void, and without lawful authority. Learned counsel for the petitioner was pointed out that in the memo of petition, he has referred to the judgment of the Hon'ble Supreme Court in the case of Messrs Ilahi Cotton Mills and others v. Federation of Pakistan PLD 1997 SC 582, wherein the vires of sections 80C, 80CC and 80D of Income Tax Ordinance, 1979 were challenged on similar grounds and the Hon'ble Supreme Court held that, all three sections falling within the purview of presumptive tax regime were valid piece of legislation and do not suffer from any Constitutional infirmity. The learned counsel for the petitioner is not able to deny the above proposition.

Section 80DD of Income Tax Ordinance, 1979 reads as follows:

"80DD. Minimum tax on income of importers of edible oil etc. Notwithstanding anything contained in this Ordinance, or any other law for the time being in force, the tax collected under subsection (5) of section 50 on import of edible oils as raw material by an industrial undertaking shall be deemed to be the minimum amount of tax payable under this Ordinance and where the final tax liability determined under this Ordinance exceeds the amount collected under the said subsection, the said amount shall be adjustable against such liability."

A bare perusal of the above section shows that it is in the nature of presumptive tax regime and is substantially of the same nature as section 80D of the Income Tax Ordinance, 1979, which has been held to be valid by the Hon'ble Supreme Court, in the case of Illahi Cotton Mills, referred to above. Thus, after the authoritative pronouncement by the Hon'ble Supreme Court in the case of Illahi Cotton Mills disposing of all the points, which have been raised in this petition, no fresh consideration is required by this Court.

So far the question of protection under section 6'of Economic Reformed Act, 1992 is concerned, the Hon'ble Supreme Court has dealt with this issue also in the case of Illahi Cotton Mills (supra) and if the petitioner enjoys any exemption protection, he can agitate the same with the Departmental Authorities in the light of .the above judgment of the Hon'ble Supreme Court.

Since no fresh point of law has been agitated requiring or consideration and all points in the petition are fully covered by the judgment of the Hon'ble Supreme Court in the case of Illahi Cotton Mills referred to above, therefore, we do not find any point warranting admission of the petition for regular hearing. The petition, is, therefore, dismissed in limine alongwith all the listed applications.

S.A.K./R‑59/K Petition dismissed.