2002 P T D 14

[Karachi High Court]

Before Saiyed Saeed Ashhad, C. J. and Zahid Qurban Alavi, J

COMMISSIONER OF INCOME-TAX

Versus

Messrs KAMRAN MODEL FACTORY

I.T.As. Nos. 59, 12, 13, 93, 10, 110 to 115, 120 to 123, 125 to 138, 136, 137, 191, 197 to 199, 236, 253, 254, 255, 257, 259 to 264, 266, 269 291 to 303, 312 to 318, 324, 325, 330 to 334, 347 to 351, 354, 356, 369, 401 to 403, 405, 406, 409, 416 of 1998, 1, 3 to 5, 14, 31, 51, 110 to 112, 114, 116, 119, 120, 126, 127, 137, 141, 155, 182, 198, 288 to 291 297, 317 to 324, 345, 359, 360 to 362, 365, 366, 387, 388 to 390, 400 to 405, 413, 429 to 432, 459 to 465, 469, 471, 475 to 483, 486, 487, 515, 520, 527, 531, 532, 537, 538, 539, 545, 554 to 558, 569 to 572, 515' 581 to 587, 590 to 5194, 601 to 607, 646, 651, 652, 656, 660, 666, 674' 674 to 677, 686, 687, 697, 703 to 710, 730, 737, 738, 739 to 747, 707 764, 768 to 770, 772 to 776, 797 to 800, 817, 836 to 842, 851 to 8y to 861, 864 to 866, 885, 892 to 894, 897 to 910, 913, 914, 921, 922, 925, 929, 930, 933, 936 to 940, 942 to 948, 950 to 954, 959, 963 to 978, to 986, 987, 992 to 994, 996, 997, 1028 to 1032, 1091, 1092, 1148 to 1152, 1154 to 1160 of 1999, 37, 38, 42, 43, 45, 72, 87, 88, 92, 98, 104, 106, 108, 109, 113, 150, 152, 153, 390, 392, 393, 395, 396, 398 to 404, 442, 443, 811 to 815, 932 of 2000 and I. T. C. No. 131 of 1992, decided, on 28th August, 2000.

(a) Income Tax Ordinance (XXXI of 1979)---

----S.55---Workers' Welfare Fund Ordinance (XXXVI of 1971), S.4 Welfare fund, levy of---Assessing Officer ---Jurisdiction---Assessing-- Officer under S.4 of the Workers' Welfare Fund Ordinance, 1971, has been authorized to deal with the question/issue of charge/levy of workers welfare fund while finalizing the assessment proceedings of an assessee, who had furnished a return of income under S.55 of the Income-Tax Ordinance, 1979---Such powers have been conferred on the Assessing Officers in their capacity as Income-tax Assessing Officers exercising powers under the Income Tax Ordinance, 1979.

(b) Income Tax Ordinance (XXXI of 1979)---

----Ss. 129 & 134---Workers' Welfare Fund Ordinance (XXXVI of 1971), S.4---Levy of workers' welfare fund---Order passed by Assessing Officer---Appeal---Maintainability---Order relating to charge/levy of Workers' Welfare Fund being part of the assessment order made by the Assessing Officer, can be challenged by aggrieved party only in accordance with the provisions of the Income Tax Ordinance, 1979, as the same would be incapable of being separated from rest of the assessment order---Workers' Welfare Fund Ordinance, 1971, does not provide a forum for challenging the order relating to the charge/levy of Workers' Welfare Fund by the Assessing Officer---Grievance of an assessee with regard to an order/finding relating to the charge/levy of Workers' Welfare Fund under SA(1) of the Workers' Welfare Fund Ordinance, 1971, can be challenged by filing an appeal against the assessment order containing the finding/order relating to the charge/levy authority for redress of his grievance relating to any illegality or irregularity in charging/levying Workers' Welfare Fund by the Assessing Officer---Appeal under. S.129 of the Income Tax Ordinance, 1979, is maintainable whereafter a further appeal can be filed by an aggrieved party before Income-tax Appellate Tribunal under S.134 of the Ordinance.

(c) Income Tax Ordinance (XXXI of 1979)---

----S. 55---Workers' Welfare Fund Ordinance (XXXVI of 1971), Sched. II---Levy of Workers' Welfare Fund on income exempted under the Sched. II of the Income Tax Ordinance, 1979---Counsel for the assessee conceded that in view of the pronouncement made by the Supreme Court in Civil Petitions of 156 to 180 and others, dated 28-3-2000 the question had to be decided accordingly and that Workers' Welfare Fund would not be charged/levied on income of an assessee which was exempt from charge to tax under any of the clauses of Sched. II to the Income Tax Ordinance, 1979---Workers' Welfare Fund would not be charged/levied on income exempted under any of the clauses of the Sched. II to the Income Tax Ordinance, 1979.

(d) Income Tax Ordinance (XXXI of 1979)---

----Ss. 34 & 35---Workers' Welfare Fund Ordinance (XXXVI of 1971), S.4---Levy of Workers' Welfare Fund---Entitlement of assessee to claim set off the losses of earlier years---Counsel appearing on behalf of the Authorities had conceded that the assessees would be entitled to the benefit or claim of set off in respect of the losses which they had declared in the earlier years and which had been determined/settled/computed as losses by the Assessing Officers in accordance-with S.34 of the Income Tax Ordinance, 1979, and carried forward in accordance with S.35 of the same.

(e) Words and phrases---

----"Assess"---Defined.

Black's Law Dictionary, 6th Edn., p. 116; Excellent Legal Words, and Phrases by Mian Muhibullah Kakakhel, Vol. I; Longman's Dictionary of Contemporary English, New Edn., p.64 and Chamber's 20th Century Dictionary, New Edn. 1983, p.73 ref.

(f) Words and phrases---

----"Assessable income" ---Defined.

Excellent Legal Words and Phrases, by Mian Muhibullah Kakakhel, Vol. I ref.

(g) Words and phrases---

----"Assessment"---Defined.

Excellent Legal Words and Phrases by Mian Muhibullah Kakakhel, Vol.I; Longman's Dictionary of Contemporary English, New Edn., p.64 and Chamber's 20th Century Dictionary, New Edn. 1983, p.73 ref.

(h) Words and phrases---

----"Assessable"---Defined.

Chamber's 20th Century Dictionary, New Edn. 1983, p.73 ref.

(i) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----SA(1)---Phrase "total income as is assessable"---Connotation---Said phrase used in SA(1) of the Workers' Welfare Fund Ordinance, 1971, means the total income which has been arrived at by the Assessing Officer after computation and determination of the declared total income after providing for allowances and exemptions, benefits of determined losses loans or payment of interest claimed by the assessee---Workers' Welfare Fund is charged/levied on the total income, taxable income or the net income, which has beer, determined by the Assessing Officer as the amount on which the income-tax would be charged---Where the Assessing Officer is not required to make any calculation, computation and assessment for the purpose of determining the total income/taxable income which does not come within the definition of the words "total income as is assessable" appearing in S.4(1) of the Workers' Welfare Fund Ordinance, 1971, Workers' Welfare Fund is not charged/levied thereon.

(j) Interpretation of statutes---

Meaning of words used in a statute---If the words are not already defined in the statute, such words used in a section of the statute are to be given their ordinary meaning.

(k) Income Tax Ordinance (XXXI of 1979)---

----Ss. 80C & 80 CC---Workers' Welfare Funds Ordinance (XXXVI of 1971), S.4---Levy of Workers' Welfare Fund on income subjected to tax under the presumptive tax regime covered by Ss. 80C & 80 CC of the Income Tax Ordinance, 1979---Assessees who are not required to file return of total income under the Income Tax Ordinance, 1979, relating to presumptive tax regime cannot be subjected to the charge/levy of Workers' Welfare Fund.

(l) Words and phrases---

----"Soon"---Meaning.

Black's Law Dictionary, 6th Edn., p.116; Longman's Dictionary of Contemporary English, New Edn., p.64 and Chamber's 20th Century Dictionary, New Edn., 1983, p.73 ref.

(m) Words and phrases---

------ As soon as may be"---Connotation---Phrase "as soon as may be" means within the earliest possible time.

Muhammad Hashim v. The State PLD 1956 Kar. 485 and Muhammad Aslam Malik v. The Province of West Pakistan PLD 1968 Lah. 1324 ref.

(n) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----S.4(4)---Phrases "as soon thereafter as may be"---Applicability-- Fixing of 90 days' period for recovery of Workers' Welfare Fund by Tribunal---Period fixed by the Tribunal was too long or excessive, therefore, the period of 90 days fixed by the Tribunal was reduced by High Court to thirty days in circumstances.

(o) Interpretation of statutes---

---- Words used in statute---Treating any word surplus and redundant- --Every word used in a statute has to be given effect to and no word of provisions of a statute is to be treated as surplusage and redundant.

East & West Steambship Co. v. Queensland Insurance Co. Ltd. PLD 1963 SC 663 and Jalal Mehmood Shah v. Federation of Pakistan PLD 1999 SC 395 ref.

(p) Income Tax Ordinance (XXXI of 1979)---

---S.156---Workers' Welfare Fund Ordinance (XXXVI of 1971), S.4-- Levy of Workers' Welfare Fund---Failure to make order for such levy-- Rectification of mistake---Recourse to S.156 of the Income Tax Ordinance, 1979---Validity---Omission on the part of the Assessing Officer for making the order for levy of Workers' Welfare Fund at the time of finalizing the assessment even if considered to be an error or mistake visible or apparent from the record or found floating an order of the Assessing Officer, the Assessing Officer would not have the right to have recourse to S.156 of the Income Tax Ordinance, 1979, in circumstances.

(q) Income Tax Ordinance (XXXI of 1979)---

----S. 59A---Workers' Welfare Fund Ordinance (XXXVI of 1971), S.4(4)---Workers' Welfare Fund-- Determination of---Assessing Officer under S.4(4) of the Workers' Welfare Fund Ordinance, 1971, is under a statutory obligation/duty to make an order for levy of Workers' Welfare Fund while finalizing the assessment under the Income Tax Ordinance, 1979.

(r) Interpretation of statutes---

---- Duties/obligations imposed by statute---Scope---Where statute imposes duties/obligations on a person or Authority then they are bound to perform the same diligently, prudently and in accordance with provisions of the statute, which has conferred such duties/obligations on them and such duties and obligations would not be brought to an end or vanish on technicalities, inadvertence or negligence more so when such duties/obligations for the welfare of a particular class---Provisions of laws of beneficial nature are to be interpreted with a view to facilitate the adjudication on merits.

Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859 and Jameel Ahmed v. Late Saifuddin through Legal Representatives 1997 SCMR 260 ref.

(s) Income Tax Ordinance (XXXI of 1979)---

----Ss. 80C, 80 CC & 156---Workers' Welfare Fund Ordinance (XXXVI of 1971), S.4---Levy of Workers' Welfare Fund---Failure to determine the Fund by Assessing Officer---Rectification of mistake---Recourse to 5.156 of the Income Tax Ordinance, 1979---Validity---Where order for levy of Workers' Welfare Fund was not made within thirty days of the framing of assessment, such omission was not only violative of the provisions of the Workers' Welfare Fund Ordinance, 1971, but had also rendered the income-tax assessment order illegal and contrary to the provisions of the-Income Tax Ordinance, 1979, inasmuch as it would not be possible to calculate the correct income-tax payable by an assessee in view of the method of determining Workers' Welfare Fund on the total/taxable income, deduction of such fund from the total/taxable income and calculation of income-tax on the total/taxable income after deduction of Workers' Welfare Fund---Such assessment order suffered from an error or a mistake apparent on the face of the record and would be floating on the surface of the order and would be so clear and manifest as could not be permitted by any Court to remain on record, which for its correction would not require long drawn arguments, reassessment or re -examination of the material on record or interpretation of any provision either of the Income Tax Ordinance, 1979, or the Workers' Welfare Fund Ordinance, 1971, and would be rectifiable in accordance with the provision of S.156 of the Income Tax Ordinance, 1979---Immaterial whether such mistake or error was a mistake of fact or law since the requirement is that such mistake must be self-evident and floating on the surface of record.

Islamuddin and 3 others v. The Income-tax Officer and 4 others 2000 P T D 306; Muhammad Hashim v. The State P L D 1956 Kar. 485; Khan Ghulam Muhammad Khan v. The State P L D 1957 Lah. 417; Muhammad Aslam Malik v. The Province of West Pakistan PLD 1968 Lah. 1324 and Pakistan Tobacco Company (Pvt.) Ltd. v. Commissioner of Income-tax 1992 P T D 1648 ref.

Shaikh Haider, Nasrullah Awan, Muhammad Fareed, Jawaid Farooqi, Arif Motan and Aqeel Ahmed Abbasi for Appellants.

Rehan Hasan Naqvi, Sirajul Haq Memon, Arshad Siraj, Salman Pasha, Zamarrud Jafri, Hanif Khan, Irfan Sadat Khan, Z.H. Jafri and Rehan Jafri for Respondents.

Dates of hearing: 10th, 11th and 24th May, 2001.

JUDGMENT

SAIYED SAEED ASHHAD, C.l.---The aforesaid Income-tax Appeals and Income-tax Case have been filed by the Department against the order of the Income-tax Appellate Tribunal passed by it in a large number of appeals. In all the aforesaid Income-tax Reference, Income-tax Cases and Income-tax Appeals any one or all the following questions of law arise for determination by this Court:

(1) Whether Workers' Welfare Fund would be leviable on income exempted under the 2nd Schedule to the Income Tax Ordinance?

(2) Whether while levying Workers' Welfare Fund the assessee would be entitled to claim set off of the losses of earlier years?

(3) Whether Workers' Welfare Fund would be leviable on the income subjected to tax under the presumptive tax regime covered by sections 80C and 80 CC of the Income Tax Ordinance? and

(4) What would be the reasonable period for levying Workers' Welfare Fund after the finalisation of assessment of income-tax and omission to charge/levy Workers' Welfare Fund?

The facts giving rise to the aforesaid Income-tax Reference/Income-tax Cases/Income-tax Appeals are that the Assessing Officers in exercise of the powers conferred on them by section 4 of the Workers' Welfare Funds Ordinance, 1971 (hereinafter referred to as the Workers' Welfare Fund Ordinance) charged/levied Workers' Welfare Fund at the rate provided in the aforesaid section 4 while finalizing the assessment. In some of the cases the Assessees had claimed set off of the losses of the earlier years from the income in the ensuing years but the Assessing Officers did not allow the benefit and refused to set off the losses of the earlier years from the income of the assessment years in question.

In some of the cases the question involved was whether Workers' Welfare Fund would be chargeable/leviable on the income declared under the presumptive tax regime covered by sections 80C and 80 CC of the Income Tax Ordinance (hereinafter referred to as the Income Tax Ordinance) and the Assessing Officers rejected the contention of the assessees that Workers' Welfare Fund could not be charged/levied on the income/turnover declared under sections 80C and 80 CC and held that the income/turnover liable to tax under the presumptive tax regime under the aforesaid two sections was also liable to be charged or to the levy of Workers' Welfare Fund in accordance with section 4(1) of the Workers' Welfare Fund Ordinance.

In some of the cases the grievance of the department was the finding of the Tribunal that no Workers' Welfare Fund could be levied on income of the assessees which have been exempted from charge to tax in accordance with various clauses of the 2nd Schedule to the Income Tax Ordinance.

In some of the cases the Assessing Officers while finalizing the assessment had failed or omitted to subject the income to the charge/levy of Workers' Welfare Fund and when this omission was brought to their notice they determined the amount by an order subsequently. The delay between the making of the assessment order and the order determining the payment of Workers' Welfare Fund levied from 5 months and 17 days to 5 years 6 months and 15 days. The order of levying Workers' Welfare Fund was cancelled by the First Appellate Authority. The department preferred an appeal before the Income-tax Appellate Tribunal and it observed and concluded that the Assessing Officer could, in case he omits to male an order for levy .of Workers' Welfare Fund in the assessment framed by him, then he could make an order for levy within 0 days of the assessment order.

Mr. Muhammad Fareed appearing on behalf of the department/appellant raised the following objection with regard to the maintainability:

"That the Assessees have no right of appeal under sections 129 and 134 of the Income Tax Ordinance to challenge the levy of Workers' welfare Fund and the aforesaid cases would have not arisen inasmuch as majority of the aforesaid cases have been tiled by the department against the orders of the Income-tax Appellate Tribunal passed in appeals filed by the Assessees."

We have heard the arguments of Messrs Shaikh Haider, Nasrullah Awan, Muhammad Fareed, Javaid Farooqi, Arif Motan and Aqeel Ahmed Abbasi on behalf of the department/appellant, Messrs Rehab. Hasan Naqvi, Sirajul Haq Memon, Arshad Siraj, Salman Pasha, Zamarrud Jaffrey. Hanif Khan, Irfan Sadat Khan, Z.H. Jafri and Rehan Jaffrey, Advocates on behalf of the assessees/respondents. All the aforesaid learned counsel were put on notice that the aforesaid I.T.As. and I.T.C. would be heard/disposed of finally on merits at katcha peshi stage, if need be after admitting them to regular hearing.

Mr. Muhammad Fareed, the learned Advocate for the department vehemently contended that the assessees did not have the right to have recourse to sections 129 and 134 of the Income Tax Ordinance and could not have challenged the order of the Assessing Officers by filing an appeal before the Commissioner of Income-tax. He further submitted that as the assessees/respondents did not have the right to challenge the order of the Assessing Officers by filing an appeal under section 129 of the Income Tax Ordinance the question of filing an appeal under section 134 before the Income-tax Appellate Tribunal to challenge the order of the First Appellate Authority did not arise. Elaborating his arguments he submitted that sections 129 and 134 of the Income Tax Ordinance provide a right of appeal to an assessee who is aggrieved by an order of the Assessing Officer and the Appellate Authority relating to the determination of the income and charge/levy of the income-tax. He further submitted that all the asses sees/ respondents were not aggrieved by the assessment orders passed by the Assessing Officers in respect of any question relating to the determination/assessment of the income chargeable to tax and subsequent levy/charge of income-tax thereon but their grievance was with regard to the order levying/charging Workers' Welfare Fund which was made by the Assessing Officers in pursuance of the powers conferred by section 4 of the Workers' Welfare Fund Ordinance and that an issue or a finding in the assessment order which was not made or passed in exercise of any provisions of the Income Tax Ordinance could not be challenged byway of an appeal under section 129 of the Income Tax Ordinance. He further submitted that such an issue/finding would be deemed to have been made in exercise of the powers under the Workers' Welfare Fund Ordinance and in case of any illegality or irregularity therein it could be challenged in accordance with the provisions of the Workers' Welfare Fund Ordinance. He further submitted that though the Assessing Officers had finalized/made the assessment orders under sections 59, 59A, 5913, 59C and 62 of the Income Tax Ordinance and in doing so they had also decided the issue of levy/charge of Workers' Welfare Fund on the taxable income in exercise of the powers conferred by section 4 of the Workers' Welfare Fund Ordinance and, therefore, it could .not be said that the Assessing Officers in levying/charging Workers' Welfare Fund had exercised powers under the Income Tax Ordinance so as to render the order relating to the levy/charge of Workers' Welfare Fund liable to be challenged by way of an appeal under the provisions of Income Tax Ordinance. Messrs Rehan Hasan Naqvi, Sirajul Haq Memon, Arshad Siraj, Salman Pasha and. others appearing on behalf of the assessees/respondents vehemently refuted the arguments of Mr. Muhammad Fareed and submitted that they were without any substance and did not merit any consideration. Their contention was, no doubt, that the order/finding with regard to the levy/charge of Workers' Welfare Fund was made by the Assessing Officers in exercise of the powers conferred on them by section 4 of the Workers' Welfare Fund Ordinance but the Assessing Officers in doing so were proceeding in accordance with the powers conferred on them by the Income Tax Ordinance for making the assessment and during the course of finalizing the assessment they in exercise of the powers conferred by section. 4 of the Workers' Welfare Fund Ordinance had to decide the issue relating to the charge/levy of Workers' Welfare Fund. In order to decide this question it will be appropriate to reproduce the provisions of section 4 of the Workers' Welfare Fund Ordinance, which are as under:

"4. Mode of payment by, and recovery from industrial establishments.---(1) Every industrial establishment, the total income of which in any year of account commencing on or after the date specified by the [Federal Government] in the official Gazette in this behalf is not less than one lakh of rupees shall pay to the Fund in respect of that year a sum equal to two per cent. Of so much of its total income as is assessable under the [Ordinance] or would have been so assessable but for the exemption made by section [48] thereof.

(2) Every industrial establishment which is liable under sub section (1) shall pay the amount due from it to the Income-tax Officer having jurisdiction over the industrial establishment for purposes of the [Ordinance].

(3) The industrial establishment shall, on or before the date on which it is required to furnish a .return of income under [section 55 of the Ordinance], pay the amount due from it under subsection (1) calculated with reference to the total income reported in the said return.

At the time of making an assessment under [the Ordinance], or as soon thereafter as may be, the Income-tax Officer shall, by order in writing, determine the amount due from industrial establishment under subsection (1), if any, on the basis of the income so assessed after taking into account the amount paid by the industrial establishment under subsection (3) in respect of the year and the industrial establishment shall pay the amount so determined on or before the date specified in the order.

5)Any change by way of enhancement or reduction in the assessed income subsequent to the assessment made under [the Ordinance] shall be given effect to by adjustment of the amount due under subsection (1).

(6).......................................

(7)......................................

(8)........................................

(9)The provisions of [the Ordinance], relating to the mode and time of recovery of the income-tax leviable under the Act shall, so far as may be, apply to the recovery of the amount due under subsection (1)."

From perusal of the aforesaid subsections of section 4 of the Workers' Welfare Fund Ordinance it is absolutely clear that the Assessing Officer has been authorized to deal with the question/issue o charge/levy of Workers' Welfare Fund while finalizing the assessment proceedings of an assessee, who had furnished a return of income under section 55 of the Income Tax Ordinance. Thus the aforesaid section 4 has empowered or conferred the powers on the Assessing Officers in their capacity as Income-tax Assessing Officers exercising powers under the Income Tax Ordinance. From perusal of subsection (4) of section 4 of the Workers' Welfare Fund Ordinance it is also clear that the Income-tax Officer after finalizing the assessment and determining the income liable to tax has to determine the amount due from the assessee under subsection (1) of section 4 of the Workers' Welfare Fund Ordinance and the same would be payable by the assessee on or before the date specified in the order. Subsection (5) of section 4 requires adjustment of the amount paid by an assessee under subsections (2) and (3) of section 4 on account of any change by way of enhancement or reduction in the income declared and the income assessed by the Assessing Officer. Provision of subsection (9) of section 4 also unequivocally lend support to the contention that while determining the question of charge/levy of Workers' Welfare Fund the provision of Income Tax Ordinance relating to the mode and time of recovery of income tax shall apply to the recovery of the amount of Workers' Welfare Fund due under section 4(1) of the Workers' Welfare Fund. Ordinance. In this connection special reference may be made to subsection (4) of section 4 of the Workers' Welfare Fund Ordinance which specifically provides that the Income-tax Officer at the time of making an assessment under the Income Tax Ordinance shall be an order in writing determine the amount due from industrial establishment under subsection (1) of section 4 of the Workers' Welfare Fund Ordinance. From the aforesaid provisions, it is absolutely clear that the Assessing Officer while finalizing the assessment has to make an order relating to the charge/levy of Workers' Welfare Fund and such an order would be part of the assessment order. The order relating to charge/levy of Workers' Welfare Fund being part of the, assessment order made by the Assessing Officer could be challenged by an aggrieved party only in accordance with the provisions of the Income Tax Ordinance as the same would be incapable of being separated from rest of the assessment order. It is also pertinent to note that there is no provision in the Workers' Welfare Fund Ordinance providing a forum for challenging the order relating to the charge/levy of Workers' Welfare Fund by the Assessing Officer and. this fact also leads to a strong inference that a grievance of an assessee with regard to an order/finding relating to the charge/levy of Workers' Welfare Fund under section 4(1) of the. Workers' Welfare Fund Ordinance can be challenged by filing an appeal against the assessment order containing the finding/order relating to the charge/levy of Workers' Welfare Fund, else the aggrieved party would have no alternate forum or authority for redress of his grievances relating to any illegality or irregularity in charging/levying Workers' Welfare Fund by the Assessing Officer.

In the circumstances, we are unable to uphold the objection raised by Mr. Muhammad Fareed regarding maintainability of an appeal under section 129 of the Income Tax Ordinance against the order of the Assessing Officer making an order/finding relating to the charge/levy of Workers' Welfare Fund. In view of our above observation it follows that an appeal under section 129 of the Income Tax Ordinance would be maintainable then an appeal under section 134 of the Income Tax Ordinance by a party aggrieved by the order passed by the Appellate Authority under section 129 of the Income Tax Ordinance would b further appealable before the Income-tax Appellate Tribunal under section 134 of the Income Tax Ordinance. In the circumstances, the objection raised by Mr. Muhammad Fareed is overruled.

We will now proceed to examine the four questions which have arisen out of the aforesaid Income-tax Appeals and Income-tax Case which require a decision from this Court.

We have heard the arguments of the learned counsel named above on behalf of the department/appellant and the assessees/respondents on the aforesaid questions of law and we will now proceed to discuss the same.

QUESTION NO.1:

With regard to this question the contention of the learned counsel for the assessees was that Workers' Welfare Fund could not be charged/levied under section 4(1) of the Ordinance on the assessees whose income has been exempted from charged to tax in accordance with any of the clauses of the 2nd Schedule to the Income Tax Ordinance. They further submitted that this question has been decided by the judgment dated 28-3-2000 of the Supreme Court in Civil Petitions Nos. 38. 156 to 180, 199 to 276, 278 to 283, 285 to 320, 323 to 421 and 518 to 524 of 2000, where the Supreme Court had pronounced that Workers'. Welfare Fund would not be charged/levied on income of an assessee whose income was exempt from charge to income-tax under any of the clauses of the 2nd Schedule to the Income Tax Ordinance. Mr. Muhammad Fareed does not controvert the arguments advanced by the learned counsel for the assessees/respondents and conceded that in view of the pronouncement made by the Supreme Court in the afore-cite' petitions the question had to decide and that Workers' Welfare Fund would not be charged/levied on income of an assessee which was exempt from charge to tax under any of the clauses of the 2nd Schedule to the Income Tax Ordinance. Accordingly, this question stands decided/answered in the negative and no Workers' Welfare Fund would be charged/levied on income exempted under any of the clauses of the 2nd Schedule to the Income Tax Ordinance.

QUESTION NO. 2:

With regard to this question the contention of Mr. Muhammad Fareed and other learned counsel appearing on behalf of the department/appellant was that the assessees would not be entitled to the benefit of set off in respect of the losses of the earlier years by referring or claiming the same in the subsequent assessment years wherein the assessees had earned profits. The learned counsel for the assessees/respondents submitted that the assessees would be entitled to set off of the losses of the earlier years provided that they had been determined as such by the Assessing Officers in the earlier assessment years, in accordance with section 34 .of Income Tax Ordinance, during which the assessees had declared losses. Their further contention was that any loss or losses claimed by the assessees without such determination/computation could not be allowed and the Assessing Officers would not be authorized to determine/compute the losses in the assessment year in which the assessees had shown profits. The learned counsel appearing on behalf of the assessees/respondents submitted that their very contention was that the assessees would be entitled to set off of losses only in accordance with section 35 of Income Tax Ordinance which they had declared in the earlier years when they had suffered losses and which had been determined /computed by the Assessing Officers in accordance with section 34 of Income Tax Ordinance. They further submitted that they were not claiming benefit of set off in respect of the losses which had not been determined or computed as losses in the earlier years and they had no intention of claiming set off in respect of the losses which the assessees claimed in the assessment year in which profits were earned without their determination or computation as losses in the earlier year. In view of the contentions advanced by the learned counsel for the parties, we are of the view that there is no dispute with regard to the contention advanced on behalf of the assessees/respondent as the learned counsel appearing on behalf of the department/appellant had conceded that the assessees would be entitled to the benefit or claim of set off in respect of the losses, which they had declared in the earlier years and which had been determined/settled/computed as losses by the Assessing Officers in accordance with section 34 and carded forward in accordance with section 35 of Income Tax Ordinance. Accordingly, this question stands decided/ answered in the affirmative.

QUESTION NO. 3:

The next question which arises for determination is as to how the words "as is assessable" used in section 4 of the Workers' Welfare Fund Ordinance are to be interpreted and what would be connotation of the words "total as is assessable" udder the Workers' Welfare Fund Ordinance.

The aspect which requires consideration in determining this question is as to whether Workers' Welfare Fund would be charged/levied on the total income which is assessed by an Assessing Officer after computation of the income /expenditure, allowing exemption and taking into consideration all other relevant factors necessary for determining the taxable income or whether the same would be charged/levied on the total income as declared by the assessee which should also be taken as the total income for the purpose of computation of tax without any exercise being undertaken by the Assessing Officer for arriving at the total income. In other words it is to be decided as to whether the provisions of section 4 of the Workers' Welfare Fund Ordinance will apply to the total income/proceeds declared by an assessee under the presumptive tax regime embodied in sections 80C and 80 CC of the Income Tax Ordinance. Mr. Muhammad Fareed, one of the learned Advocates appearing on behalf of the department/appellant advanced arguments, which were adopted by all the learned counsel appearing on behalf of the department/appellant.

The arguments advanced by Mr. Muhammad Fareed were to the effect that the words "total income as is assessable" would mean the total income on which the income-tax was charged or levied irrespective of the fact whether it had been determined by the Assessing Officer after taking into consideration the gross income, expenditure, 'exemptions and other factors relevant for the purpose of determining the taxable income. According to him the words "as is assessable" appearing in section 4 did not lead to an inference that only such total income as was determined by an Assessing Officer while finalizing the assessment of an assessee would be subjected to charge/levy of Workers' Welfare Fund and further submitted that whatever income/proceeds were declared by an assessee at the time of filing of his return and which, according to the provisions of the Income Tax Ordinance were to be taken as the total income liable to tax without computation and determination thereof by an Assessing Officer, would also be subjected to charge/levy of Workers' Welfare Fund. He further submitted that the return of total income as envisaged in section 55 of the Income Tax Ordinance would include statements filed under sections 143 and 143B of the Income Tax Ordinance as they also declared the total income of the assessee and as such would be liable to charge/levy of Workers' Welfare Fund under section 4(1) of the Workers' Welfare Fund Ordinance. In support of his above arguments he placed reliance on subsection (3) of section 4 of the Workers' Welfare Fund Ordinance. Subsection (3) of section 4 of the Workers' Welfare Fund Ordinance has already been produced hereinabove but for the sake of ready reference it is reproduced herein as under:

"4. Mode of payment by, and recovery from industrial establishments.---

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

(2)

(3)The industrial establishment shall on or before the date on which it is required to furnish a return of income under [section 55 of the Ordinance], pay the amount due from it under subsection (1) calculated with reference to the total income reported in the said return. "

Mr. Muhammad Fareed relied heavily on the words: "pay the amount due from it under subsection (1) calculated with reference to the total income reported in the said return" and submitted that from perusal of the above it was absolutely clear and without any doubt that every industrial establishment was required to pay the amount due from it by way of Workers' Welfare Fund under subsection (1) of section 4 of the Workers' Welfare Fund Ordinance and further that the same was to be calculated with reference to the total income shown or reported in the said return which meant that payment of Workers' Welfare Fund was riot subject to the finalisation of any assessment by the Income-tax Officer and the words "total income" used in subsection (1) of section 4 of the Workers' Welfare Fund Ordinance would in the circumstances mean the income declared by an assessee in the return. He further submitted that statements under sections 143 and 143B of the Income Tax Ordinance would be equated with the return of income as envisaged under section 55 of the Income Tax Ordinance for the purpose of charge/levy of Workers' Welfare Fund inasmuch as they also contain the total income of the assessee in respect of the transaction/business for which the assessees have been exempted from filing detailed returns of total income and are required to file only statements declaring their total income/turnover/proceeds during a particular financial year which is to be taken as their income and would be deemed to be "the total income reported in the said return" as provided in subsection (3) of section 4 of the Workers' Welfare Fund Ordinance. On the other hand Mr. Rehan Hasan Naqvi vehemently refuted the arguments advanced by Mr. Muhammad Fareed and submitted that the arguments advanced by Mr. Muhammad Fareed were not based on proper understanding and appreciation of the various provisions of the Income Tax Ordinance as well as the definitions/.meaning of the words "as is assessable" used in section 4(1) of the Workers' Welfare Fund Ordinance and "return of income" as envisaged in section 55 of the Income Tax Ordinance. Mr. Rehan Hasan Naqvi further submitted that interpretation will have to be given to the words "as is assessable" used in section 4(1) of the Workers' Welfare Fund Ordinance and for this purpose it will be necessary to find out the exact meaning of the word "assessable". In this connection he submitted that the word "assessable" or "assessment" was not defined in the Income Tax Ordinance and, therefore, reliance would have to be placed on the ordinary meaning of the words "assessable" and "assessment". Mr. Rehan Hasan Naqvi then referred us to the various law and ordinary dictionaries for establishing the definition of the words "assessable" and "assessment". Mr. Rehan Hasan Naqvi referred us to the definition of the word "assess" as defined in Black's Law Dictionary, 5th Edition, on page 116 as under:---

"To ascertain; fix the value of. To fix the amount of the damages or the value of the thing to be ascertained. To fix, to calculate the rate and amount of tax."

In the book titled Excellent Legal Words and Phrases by Mian Muhibullah Kakakhel, Vo. I the word "assess" has been defined on page 552 as under:---

"To fix the amount to be paid as tax or assessment, i.e., that tax fixed as rate or rent."

On page 553 it defines word "assessable income" as under:

"Assessable income" means what the words convey namely that income which is assessable to income-Tax under the Income-tax Act.

In the same book on page 557 meaning of the word "assessment" ha been given as under:

" `assessment' in relation to taxation or revenue means the process of ascertaining or adjusting; determining the share of tax or duty to be paid by a person or apportioning the same among different taxable persons."

In the same book on page 559 the word "assessment" has been defined as under:---

"The word can bear a very comprehensive meaning. It can comprehend whole procedure for ascertaining and imposing liability upon the taxpayer; the word is used in the Income to Act, 1922 in a number of provisions in a comprehensive sense and includes all proceedings, starting with the filing of the return or issue of notice and ending with determination of the tax payable by the assessee."

Longman's Dictionary of Contemporary English, New Edition, oil page 64 defines the word "assess" as under:

"To calculate or decide the value or amount of."

On the same page word "assessment" has been defined as under:

"The act of assessing; the value or amount at which something is calculated."

In the Chamber's 20th Century Dictionary, New Edition, 1983, on page 73 the word "assess" has been defined to mean---

"to fix the amount of, as a tax; to tax or fine; to fix the value orprofits of, for taxation, to estimate." On the same page the words "assessable" and "assessment" have been defined to mean:

"The act of assessing, a valuation for the purpose of taxation."

Mr. Rehan Hasan Naqvi submitted that from a bare perusal of the aforesaid meanings of the words "assess", "assessable" and "assessment" it was to be concluded that the words "total income as is assessable" used in section 4(1) of the Workers' Welfare Fund Ordinance meant the total income which had been, derived and arrived or after computation, determination and calculation made by the Assessing Officer in respect of the profits, losses, exemptions, allowances etc. available to an assessee for determining the total income liable to tax. He further submitted that in view of the above, the income/proceeds, which had been subjected to tax under the presumptive tax regime and on which the assessee was liable to pay income-tax without any act of assessment undertaken by the Assessing Officer would not be liable to the charge/levy of Workers' Welfare Fund.

Mr. Muhammad Fareed vehemently relied on section 4(3) of the Workers' Welfare Fund Ordinance and submitted that a perusal thereof would indicate without any doubt that Workers' Welfare Fund was to be charged/levied on the total income reported in a return of total income filed by an assessee which completely negated the contention raised on behalf of the department that the words "total income" used in section 4(1) of the Workers' Welfare Fund Ordinance referred to the total income which was arrived at by an Assessing Officer after subjecting the return to scrutiny, examination and calculation. The contention advanced by Mr. Muhammad Fareed is not tenable. In advancing the abovesaid arguments, he had completely lost sight of subsection (4) of section 4 of the Workers' Welfare Fund Ordinance which provides the Assessing Officer by an order in writing to determine the amount of Workers' Welfare Fund due from an industrial establishment on the basis of the total income assessed by him whereafter in view of the provisions of subsection (5) of section 4 of the Workers' Welfare Fund Ordinance adjustment would be made by way of enhancement or reduction in the amount of Workers' Welfare Fund paid on the basis of the total income declared in the return and as assessed by the Assessing Officer. This contention, therefore, has no force and requires no consideration.

The contention of Mr. Muhammad Fareed that the statements to be filed by an assessee under sections 143 and 143B of the Income Tax Ordinance would for the purpose of charge/levy of Workers' Welfare Fund taken to be return as envisaged in-section 55 of the Income Tax Ordinance is also without any substance. Section 55 of the Income Tax Ordinance deals with the return of total income and in clauses (a), (b) and (c) of subsection (1,) of section 55 of the Income Tax. Ordinance provide the three categories of persons, who are required to file a return of total income. Section 55 also contains two provisos whereby, certain persons have been exempted from filing return of total income and it will be appropriate to refer to the second proviso, which says that person not required to file return of total income under section 80C or 80 CC would file return of wealth tax alongwith the certificate of statement of their income in lieu of such return of total income. It will be appropriate to reproduce second proviso to section 55 of the Income Tax Ordinance as under:

"[Provided further that the persons otherwise not required to file return of total income under the first proviso, or section 80C or section 80 CC shall, except in the case of firms, associations of persons, or bodies of individuals, whether incorporated or not, companies who are otherwise not chargeable to wealth tax under the Wealth Tax Act, 1963 (XV of 1963), [and persons whose declared income for the relevant year or the last declared or assessed income is less than one hundred thousand rupees] file return of wealth alongwith the certificate of statement of their income in lieu of such return of total income.]"

From a bare perusal of the second proviso to section 55 of the Income Tax Ordinance there can hardly be any doubt or ambiguity with regard to the fact that the persons, who are liable to pay income-tax under the presumptive tax regime as embodied in sections 80C and 80 CC of the income Tax Ordinance are not required to file return of total income. As requirement of filing a return of total income is one of the essential condition for levying Workers' Welfare Fund as per sub section (3) of section 4 of the Workers' Welfare Fund Ordinance, the assessee who is not required to file a return of total income could not be subjected to the levy of Workers' Welfare Fund. Apart from the above provisions of the Income Tax Ordinance and Workers' Welfare Fund Ordinance referred to above for the purpose of exempting the assessees, who are not required to file return of total income, from levy of Workers' Welfare Fund, there are other provisions in the Income Tax Ordinance which clearly lead to an inference that Workers' Welfare Fund would not be charged/levied on income on the assessees who are liable to be taxed under the presumptive tax regime inasmuch as they are neither required to file a return of total income nor the total income declared by them in the statements filed by them comes within the definition of the words "total income as is assessable" used in section 4(1) of .the Workers' Welfare Fund Ordinance. These provisions are reproduced as under:

"80C. Tax on income of certain contractors and importers.---

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

(2) ........................................

(3)................ .

(4) Where the assessee has no income other than the income referred to in subsection (1) in respect of which tax has been deducted or collected, the tax deducted or collected under section 50 shall be deemed to be the final discharge of his tax liability under this Ordinance and he shall not be required to file the return- of total income under section 55:

(5) .....................................

.

(6) ........................................

(7) In a case to which subsection (4) applies, an order under section 59A shall be deemed to have been made in respect of income referred to in subsection (1).

80 CC. Tax on income of certain exporters. ---(1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, where any amount referred to in sub section (5A) of section 50 is received by any person, the whole of such amount shall be deemed to be the income of the said person and tax thereon shall be charged at the rates specified in the First Schedule.

(2) Nothing contained in this Ordinance shall be so construed as to authorize any allowance or deduction against the income as determined under subsection (1) or any refund of tax deducted under subsection (5A) of section 50 or set off any loss under any provision of this Ordinance.

(3) Where the assessee has no income other than the income referred to in subsection (1) in respect of which tax has been deducted under subsection (5A) of section 50, the tax so deducted shall be deemed to be the final discharge of this tax liability under this Ordinance and he shall not be required to file the return of total income under section 55.

(4)........................................

(5) .

.

(6) In a case to which subsection (3) applies, an order under section 59A shall be deemed to have been made in respect of income referred to in subsection (1)."

The aforesaid provisions of the Income Tax Ordinance clearly exempt the assessee from filing a return of total income which is an essential requirement for subjecting the total income to the levy of Workers' Welfare Fund as per section 4(3) of the Workers' Welfare Fund Ordinance. From a bare perusal of subsections (4) and (7) of section 80C and subsections (3) and (6) of section 80 CC it is to be held that no assessment order as envisaged in section 62 of the Income Tax Ordinance is required to be made in respect of the assessees, who are liable to be charged to tax under sections 80C and 80 CC which means that no assessment is to be carried out and the total income declared by them in statements to be filed under sections 143 and 143B of the Income Tax Ordinance is to be taken or accepted as total income for levying income tax without undertaking the exercise of determining the total/taxable income. Upon consideration of the respective arguments advanced by Mr. Muhammad Fareed and others, learned counsel for the department and Mr. Rehan Hasan Naqvi and other counsel on behalf of the assessees and the above discussion we are clearly of the view that from the meanings/definitions of the words "assess, "assessable" an "assessment" given in the various laws and ordinary dictionaries the words "total income as is assessable" used in section 4(1) of Workers' Welfare Fund Ordinance would mean the total income which has bee arrived at by the Assessing Officer after computation and determination of the declared total income after providing for allowances and exemptions, benefits of determined losses, loans or payment of interest claimed by the assessee. In other words Workers' Welfare Fund will be charged/levied on the total income, taxable income, or the net income, whatever it may be called, which has been determined by the Assessing, Officer as the amount on which the income-tax would be charged. I case where the Assessing Officer is not required to make any calculation, computation and assessment for the purpose, of determining the total income/taxable income which would be liable to be charged income tax, such income would not come within the definition of the words "total income as is assessable" appearing in section 4(1) of the Workers' Welfare Fund Ordinance and no Workers' Welfare Fund would be charged/levied thereon. We have come to the above conclusion as, according to the principles of the interpretation of the statutes this is the only possible interpretation, which can be had. The general principle of interpretation is that the words used in a section of the statute are to be given their ordinary meaning if not already defined in the statute. By giving the ordinary meaning of the word "assessable" there can be no other possible interpretation than the one which we had arrived at hereinabove. From the above discussion the only conclusion which can be had is that assesses who are not required to file return of total income under the Income Tax Ordinance, relating to presumptive tax regime cannot be subjected to the charge/levy of Workers' Welfare Fund, Accordingly, this question stands decided/answered in the negative.

QUESTION NO 4:

The last question is as to within what period an Assessing Officer can make an order for levy of Workers' Welfare Fund in a case where he had omitted to do so at the time of framing the income-tax assessment in view of the words "as soon thereafter as may be". Connected with this question is the question as to whether on omission of the Assessing Officer to make an order for levy of Workers' Welfare Fund at the time of framing the assessment the omission would amount to a mistake which would be apparent from the record or would be found floating from the order so as to rectifiable under section 156 of the Income Tax Ordinance. The grievance of the department is with regard to the period of 90 days fixed by the Income-tax Appellate Tribunal for making the order in accordance with words "as soon thereafter as may be" and it was submitted by Mr. Shaikh Haider that the Tribunal had erred in limiting this period to 90 days without taking into consideration the fact that the Workers' Welfare Fund Ordinance was a welfare statute providing benefits to the industrial workers and the provisions thereof were to be construed and interpreted in such a manner so as to give the maximum benefit to the industrial workers. He further submitted that the avoidance of compulsory payment by the assesses under the statute for the benefit of the working classes was a common practice and by limiting the period to 90 days for making an order for levy of Workers' Welfare Fund the Income-tax Appellate Tribunal had given undue benefit to those assessees who do not observe the provisions of the statute and violate them by not complying with the requirements of determining and making payment towards Workers' Welfare Fund. Mr. Shaikh Haider further submitted that subsection (4) of section 4 of the Workers' Welfare Fund Ordinance had cast a duty upon the Assessing Officer to make an order relating to the payment of Workers' Welfare Fund at the time of finalisation of the assessment or as soon thereafter as may be and that the failure or omission of the Assessing Officer to make an order would be a violation of and consequently, an error or mistake on his part. He further submitted that such an error or mistake of the Assessing Officer would be visible from a bare reading of the assessment order and would be apparent from the record thus bringing such error or mistake within the meaning of the word "mistake apparent from the record" envisaged in section 156 of the Income Tax Ordinance thereby rendering it liable to rectification. Mr. Shaikh Haider further submitted that omission or failure to make an order for levy of Workers' Welfare Fund while making the assessment could be corrected without investigation or calling upon the parties to advance conflicting arguments, reassessment of evidence, consideration of additional evidence or interpretation of any provisions of law inasmuch as in correcting or rectifying the mistake regarding failure to make an order relating to the levy of Workers' Welfare Fund the Assessing Officer would only be required to fix/calculate Workers' Welfare Fund which would be payable on the total income which he had determined for the purpose of charge/levy of the income-tax. In support of his above contentions he had placed reliance on the judgment of this Court in the case of Islamuddin and 3 others v. The Income-tax Officer and 4 others reported in 2000 PTD 306. It will be appropriate to reproduce the relevant portion from the above judgment on which the reliance was placed by Mr. Shaikh Haider:

"From the above observations of the Hon'ble Supreme Court, it is to be seen that a mistake or an error to be rectifiable under section 156 must be a mistake, in the order which is apparent from the record, i.e., to say a finding which is absolutely contrary or in ignorance or in disregard of the evidence- and material on record or a finding which could not have been arrived at on the basis of the material on record or a mistake or error which may be seen floating and it should be so obvious that on reading of the order surfaces on the face of it. The other requirement for a mistake or an error to be apparent from the record is that in exercising power under section 156 of the Income Tax Ordinance the concerned Assessing Officer would not be required to undertake reappraisal of the evidence and interpretation of any provision of law for coming to a different opinion. If such an exercise was to be undertaken then it would not amount to rectification of the order and the concerned officer could not exercise power under section 156 of the Income Tax Ordinance for modifying and/or amending the finding or opinion expressed originally."

Mr. Rehan Hasan Naqvi appearing on behalf of the assessees also assailed the order of the Income-tax Appellate Tribunal fixing a period of 90 days within which the Assessing Officer could make an order for levy of Workers' Welfare Fund on his failure to do so at the time of framing the assessment and submitted that in view of the words "as soon thereafter as may be" would not give an unabridged power to the Assessing Officer to make an order relating to the levy of Workers' Welfare Fund after a lapse of very long period and such an order would have to be made within a reasonable time of days. As to what would be the reasonable time, Mr. Rehan- Hasan Naqvi submitted that due importance would have to be given to the word "soon" used in sub section (4) of section 4 of the Workers' Welfare Fund Ordinance and for this purpose he referred us to the meaning of this word as provided in the legal and ordinary dictionaries and it will be appropriate to reproduce the meanings of the word "soon" from the various legal and ordinary English dictionaries as under:

Chambers 20th Century Dictionary, New Edition 1983 o page 1234 defines the word "soon" to mean: "immediately" o in a short time; without delay; early; readily."

Longman's Dictionary of Contemporary English, New Edition o page 1220 defines the word "soon" to mean; "before long; within a short time; quickly; early."

Black's Law Dictionary, 6th Edition on page 1395 defines the word "soon" to mean: "within a reasonable time; as soon a practicable. " It further defines phrase "as soon as practicable" to mean; "within a reasonable time".

Mr. Rehan Hasan Naqvi submitted that in view of the aforesaid meanings of the word "soon" appearing in the various legal and original dictionaries a period of ninety days could not by any stretch of imagination be considered or treated to be a reasonable time within which an Assessing Officer would be competent or entitled to make an order requiring levy of Workers' Welfare Fund. Mr. Arshad Siraj, the learned Advocate who also appeared on behalf of the assessees adopted the arguments of Mr. Rehan Hasan Naqvi and vehemently submitted that the words "as soon thereafter as may be" could never be interpreted to provide a period of ninety days to the Assessing Officer to make an order relating to the payment of Workers' Welfare Fund. In support of his above contention he referred us to the cases of (1) Muhammad Hashim v. The State reported in PLD 1956 Karachi 485 and (2) Khan Ghulam Muhammad Khan v. The State reported in PLD 1957 Lah. 497. In the first case the words "as soon as may be" as they appeared in subsection (5A)(1) of section 3 of the Balochistan Public Safety Regulation were interpreted in such a manner that a period of two months in providing or supplying reasons to the detenu for his detention was considered to be unreasonable. In the second case the question involved before the principal seat at Lahore of the erstwhile West Pakistan High Court was whether the communication of the grounds of detention after 16 days were actually the grounds on which the action was taken and it did not deal with the sufficiency of the period which should live lapsed between the detention and communication of the grounds, therefore, this case has no relevance to the facts of this case. Mr. Arshad Siraj has also referred us to the case of Muhammad Aslam Malik v. The Province of West Pakistan, reported in PLD 1968 Lahore 1324. In this case the erstwhile West Pakistan High Court Lahore while interpreting the phrase "as soon as may be" observed that in majority of cases it meant simultaneously as soon after the order is made and a delay of 35 days in serving the grounds of detention allegedly on account of preoccupation of officer concerned with some other matters was held to be a hardly satisfactory explanation for authorities dealing with liberty of subject. Thus in both the cases of Muhammad Hashim v. The State and Muhammad Aslam Malik v. The Province of West Pakistan (supra), the words "as soon as may be" used for communication of the grounds o detention were interpreted to mean within the earliest possible time. In the present case the words "as soon thereafter as may be" are more or less at par with the words "as soon as may be". Consequently, the period of 90 days fixed by the Tribunal would be considered to be too long o excessive. In the circumstances, the period of 90 days fixed by the Tribunal is reduced to thirty days.

The question which now arises for determination as contended by Mr. Shaikh Raider is whether the omission on the part of the Assessing Officer to make an order for levy of Workers' Welfare Fund would be an error or mistake apparent from the record or floating on the order so as to bring it within the scope of section 156 of the Income Tax Ordinance thereby enabling the Assessing Officer to rectify the same within a period of 4 years from the date of the order. It is to be observed that in view of the words "as soon thereafter as may be" appearing in section 4(4) of the Workers' Welfare Fund Ordinance the Assessing Officer would have to resort to make an order for levy of Workers' Welfare Fund within the period of 30 days as held above on this omission to make such an order at the time of framing the assessment. The Assessing Officer would have no option but to make an order for levy o Workers' Welfare Fund on the principle of interpretation of statute that every word used in a statute has to be given effect to and no word or provisions of a statute is to be treated as surplusage and redundant. The case of East and West Steambship Co. v. Queensland Insurance Co. Ltd. reported in PLD 1963 SC 663 can be cited in support of the above proposition. A similar observation was made by the Supreme Court in the case of Jalal Mehmood Shah v. Federation of Pakistan reported in PLD 1999 SC 395. In the circumstances, the omission on the part of the Assessing Officer for making the order for levy of Workers' Welfare Fund at the time of finalizing the assessment even if considered to be a error or mistake visible or apparent from the record or found floating from a bare reading of the order of the Assessing Officer, he would not have the right to have recourse to section 156 of the Income Tax Ordinance.

The situation, however, would be different if no order relating to levy of Workers' Welfare Fund is made even after 30 days of the framing of the assessment. The question which would then arise for determination is as to whether on expiry of the period of 30 days the matter of levy of Workers' Welfare Fund would come to an end and the concerned assessee would be relieved of his obligation to pay Workers' Welfare Fund. In this connection it is to be observed that obligation for payment of Workers' Welfare Fund by an assessee who comes within the definition of industrial establishment is a statutory obligation/responsibility in view of section 4(1) of the Workers' Welfare Fund Ordinance and in view of provisions of section 4(4) of the Workers' Welfare Fund Ordinance, the Assessing Officer has been made responsible to determine and levy Workers' Welfare Fund on the class of the assessee mentioned above. In other words the Assessing Officer is under a statutory obligation/duty to make an order for levy of Workers' Welfare Fund while finalizing the assessment under the Income Tax Ordinance. When a statute imposes duties/obligations on a person or authority then they are bound to perform the same diligently, prudent and in accordance with provisions of the statute, which has conferred such duties/obligations on them and such duties and obligations would no be brought to an end or vanish on technicalities, inadvertence or negligence more so when such duty/obligation is for the welfare of a particular class. Provisions of laws of beneficial nature are to be interpreted with a view to facilitate the adjudication on merits as propounded by the Supreme Court in the case of (i) Muhammad Hanif and others v. Muhammad and others reported in PLD 1990 SC 859; and (ii) Jameel Ahmed v. Late Saifuddin through Legal Representatives reported in 1997 SCMR 260. Order for levy of Workers' Welfare Fund is not made within thirty days of the framing of assessment, such an omission would not only be violative of the provisions of the Workers' Welfare Fund Ordinance but would also render the income-tax assessment order illegal and contrary to the provisions of the Income Tax Ordinance inasmuch as it would not be possible to calculate the correct income-tax V payable by an assessee in view of the method of determining Workers' Welfare Fund on the total/taxable income, deduction of such fund from the total/taxable income and calculation of income-tax on the total/taxable income after deduction of Workers' Welfare Fund as laid down by the Supreme Court in the case of Pakistan Tobacco Company (Pvt.) Ltd. v. Commissioner of Income-tax, reported in 1992 PTD 1648. Such assessment order would suffer from an error or a mistake, which as discussed above, would be patently apparent on the face of the record, would be- floating in the order would be so clear and manifest as could not be permitted by any Court to remain on record, which for its correction would not require long drawn arguments, reassessment or re -examination of the material on record or interpretation of any provision either of the Income Tax Ordinance or the Workers' Welfare Fund Ordinance and would be rectifiable in accordance with the provision o section 156 of the Income Tax Ordinance. It is immaterial as to whether such mistake or error is a mistake of fact or of law and the requirement is whether it is mistake of fact or of law, it must self-evident and floating on surface. Is question is answered, accordingly.

It will be appropriate to sum up our answers/decisions on all the four questions referred to in the aforesaid I.T.As. and I.T.C. as under:

Question No. 1:

Negative, Workers' Welfare Fund would not be leviable on income exempted under the various clauses of the 2nd Schedule to the Income Tax Ordinance.

Question No. 2:

Affirmative. An assessee would be entitled to the benefit of set off of the losses, which have been determined/settled in accordance with provisions of sections 34 and 35 of the Income Tax Ordinance.

Question No. 3:

Negative. The Workers' Welfare Fund would not be leviable on the income declared under the presumptive tax regime which is not to be subjected to assessment for determining the total/taxable income as such not coming within the scope of the words "total income as is assessable" used in section 4(1) of the Workers' Welfare Fund Ordinance; and

Question No. 4:

A period of 30 days would, be a reasonable period during which the Assessing Officer would be required to make an order for levy of Workers' Welfare Fund on this failure to do so in the assessment order. However, if such order is not made even within thirty days of the original assessment order, then on expiry of thirty days the provisions of section 156 of the Income Tax Ordinance would be attracted and the error/mistake in not levying Workers' Welfare Fund would be rectifiable thereunder.

All the aforesaid Income-tax Appeals and Income-tax Case stand disposed of in terms of the above observations and decisions.

Q.M.H./M.A.K./C-34/K Order accordingly.