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

‑‑‑‑Ss. 30(2)(b), 22,.12(5), 2(11), 2(29A) & 62‑‑‑Income Tax Ordinance (XLIX of 2001), S.18(1)(c)‑‑‑Modaraba Companies and Modarabas (Floatation and Control) Ordinance (XXXI of 1980), Ss 2(c) & 17‑‑ Income from other sources ‑‑‑Modaraba Management Fee‑‑‑Assessment of fee under S.30 of the Income Tax Ordinance, 1979 as Technical fee and not as business income ‑‑‑Validity‑‑‑Modaraba company business was to float Modarabas and to earn management fee‑‑‑Such receipt/income of the Modaraba Company was liable to be computed under the head, "income from other sources" under S.30 of the Income Tax Ordinance,/ 1979.

LTA. No. 618/KB of 1995‑96 distinguished.

I.T.A. No.618/KB of 1995‑96; 1999 PTD (Trib.) 708 and 1997 PTD 460 ref.

(b) Income Tax Ordinance (XLIX of 2001)‑‑‑

‑‑‑‑S. 18‑‑‑Income Tax Ordinance (XXXI of 1979), Ss.12(5)(a) & 30‑‑‑ Modaraba Companies and Modarabas (Floatation and Control) Ordinance (XXXI of 1980), S.2(c) & 17‑‑‑Income from business‑‑‑Modaraba Management Fee‑‑‑Management fee defined in S.18 of the Income Tax Ordinance, 2001 qualified the definition of "Fee for technical services" to be charged under S.30 of the Income Tax Ordinance, 1979 as `income from other sources in view of Explanation attached to S.12(5)(a) of the Income Tax Ordinance, 1979 which by all means was relevant so far S.30 of the Income Tax Ordinance, 1979 was concerned.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Incorrect interpretation‑‑‑Value‑‑‑Incorrect interpretation of law cannot be taken as a gospel truth.

(d) Income‑tax‑‑‑

‑‑‑‑Assessment‑‑‑History‑‑‑Principles‑‑‑If law permits to move in a correct direction, the officers implementing law, may follow the correct path ignoring the history and without taking into consideration the previous and continuous practice adopted for years together.

(e) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S. 30(2)(b)‑-‑Income Tax Ordinance (XLIX of 2001), S.18(1)(c)‑‑ Modaraba Companies and Modarabas (Floatation and Control) Ordinance (XXXI of 1980)‑‑‑Income from other sources ‑‑‑Modaraba Management Fee‑‑Inclusion of management fee derived by a management company, floating Modaraba share in S.18, of the Income Tax Ordinance, 2001, empowered the department to charge tax on such income under the head "income from business" which did not mean that the Department had been given free hand to charge the income under S.22 of the Income Tax Ordinance, 1979 for the period not falling within the ambit of Income Tax Ordinance, 2001‑‑‑In absence of any such. provision in Income Tax Ordinance, 1979 the Department had no other course except to invoke the provision of S.30 of the Income Tax Ordinance, 1979 for computing the income of Modaraba Company carrying on'‑ business of floating Modarabas and to earn management fee.

(f) Interpretation of statutes‑‑‑

‑‑‑‑ Fiscal statute‑‑‑Department, Tribunal or the Court, must look at all the words of statute and interpret the same in the light of what is clearly expressed.

1971 SCMR 128 and 1997 SCMR 371 rel.

(g) Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss. 22 & 30(2)(b)‑‑‑Income Tax Ordinance (XLIX of 2001), S.18(1)(c)‑‑‑Modaraba. Companies and Modarabas (Floatation and Control) Ordinance (XXXI of 1980)‑‑‑Income from business ‑‑‑Scope‑‑ Extension of ‑‑‑Modaraba Management Fee‑‑‑Appellate Tribunal could not extend the scope of the statute by an analogy that scope of S.22 of the Income Tax Ordinance, 1979 had been extended to management fee in the Income Tax Ordinance, 2001, as the same would amount to prevent a real, clear and supposed anomaly‑‑‑Appellate Tribunal should depend upon the exact wordings of the law prevailing at the relevant time and not upon the subsequent changes in law.

Akbar G. Merchant, F.C.A. and Miss Yasmeen Ajani, F.C.A. for Appellant (in I.T.As. Nos.1028/KB, 1029/KB and 1294/KB to 1296/KB of 2000‑2001).

Aqeel Ahmed Abbasi, Legal Advisor for Respondent (in I. T. As. Nos. 1028/KB, 4029/KB, 1294/KB to 1296/KB.of 2000‑2001).

Shabbir Jamsa, I.T.P. for Appellant (in I.T.As. Nos. 1405/KB to 1407/KB, 1014/KB and 2429/KB of 2001)

Aqeel Ahmed Abbasi, Legal Advisor for Respondent (in I.T.As. Nos. 1405/KB to 1407/KB, 1014/KB and 2329/KB of 2001).

Nemo for Appellant (in I.T.As. Nos.1412/KB to 1415/KB and 1515/KB of 2001).

Aqeel Ahmed Abbasi, Legal Advisor for Respondent (in I.T.As. Nos. 1412/KB to 1415/KB and 1515/KB of 2001).

Khaliq‑ur‑Rehman, F.C.A. for Appellant (in LT.As. Nos.731/KB, 166/KB and 732/KB of 2000‑2001).

Aqeel Ahmed Abbasi, Legal Advisor for Respondent (in I.T.As. Nos.731/KB, 166/KB and 732/KB of 2000‑2001).

Muhammad Rehan Siddiqui, I.T.P. for Appellant (in I.T.A. No.1430/KB of 2001).

Aqeel Ahmed Abbasi, Legal Advisor for Respondent (in I.T.A. No. 1430/KB of 2001).

S. Hassaan Naeem for Appellant (in I.T.A. No.1439/KB of 2001).

Aqeel Ahmed Abbasi, Legal Advisor for Respondent (in I.T.A. No. 1439/KB of 2001).

Khaliq‑ur‑Rehman, F.C.A. for Appellant (in I.T.A. No.1759/KB of 1999‑2000).

Aqeel Ahmed Abbasi, Legal Advisor for Respondent (in I.T.A. No. 1759/KB of 1999‑2000).

Aqeel Ahmed Abbasi, Legal Advisor for Appellant (in I.T.A. No. 1827/KB of 1999‑2000).

Khaliq‑ur‑Rehman, F.C.A. for Respondent. (in I.T.A. No. 1827/KB of 1999‑2000).

Date of hearing: 29th June, 2002.

ORDER

S. HASAN IMAM (JUDICIAL MEMBER).‑‑‑The Hon'ble Chairman Income Tax Appellate Tribunal on the request of Division Bench in case of Messrs B.R.R. Investments (Pvt.) Ltd. in I.T.A. No.1028/KB of 2000‑2001 and others, has been pleased to direct the formation of Full Bench of the Tribunal to adjudicate and determine the issue hereunder:‑‑

"Whether Modaraba Management Fee, received by Management Company by managing Modarabas floated by it under the Modaraba Companies and Modaraba (Floatation & Control) Ordinance, 1980, is assessable as Business Income under section 22 of the Repealed Income Tax Ordinance, 1979 and not as Technical Fee assessable under section 30, as Income From Other Sources?

2. Decision, dated 9-2-1998 in case of Messrs D.G. Modaraba Management (Pvt.) Ltd., Karachi, bearing I.T.A. No.618/KB of 1995‑96 has been distinguished per incuriam during the hearing of appeal bearing I.T.A. No. 1028/KB of 2000‑2001, for the reason that fundamental law of Modaraba has not been taken into consideration, the ratio of the order referred to above is reproduced hereunder:‑‑

'"In view of Division Bench ruling cited above, it is not possible to record any different finding from the one taken by the one Division Bench of the Tribunal. It would be appropriate that a Full Bench is constituted by the Hon'ble Chairman and for that we are referring this matter to the Hon'ble Chairman for constitution of Full Bench."

At this stage it would be necessary to refer the ratio of the order, dated 9‑2‑1998 alongwith finding of the Tribunal in I.T.A. No.618/KB of 1995‑96:‑--

"(4) Mr. M.D. Ghangat, learned counsel for the respondent has submitted before us that the respondent has earned management fee income and, therefore, the expenses should be allowed. Elaborating his contention, he has submitted that entire affairs of D.G. Modaraba are being managed by the respondent namely D.G. Modaraba Management (Pvt.) Ltd. and thus all the expenses are allowable. He has submitted that the income earned by the appellant on account of management fee is assessable under section 22. He has submitted that in the assessment year 1994‑95, the Assessing Officer has himself described the income from management fee as business income. However, so far dividend income, interest income and profit on PICIC certificates are concerned, Mr. Ghangat has conceded that they are assessable under section 30 of the Income Tax Ordinance, 1979.

(5)On the other hand the learned D.R. has submitted that the management fee falls within the purview of fee for technical services as defined in the explanation of section 12(5) of the Income Tax Ordinance, 1979. He has taken us through the explanation to section 12(5) of the Income Tax Ordinance according to which fee for technical service means any consideration including any lump sum consideration for the rendering of any managerial, technical or consultancy services (including the provision of the services of technical or other personnel). He has submitted that since the assessee has itself shown income as management fee, therefore, it falls within the purview of fee for technical services and as such the income is assessable under section 30. Mr. M.D. Ghangat tried to meet the objection raised by the learned D.R. and submitted, that the income earned by the respondent was not management fee only but it was for incurring of the administrative expenses on behalf of D.G. Modaraba. In support of his contention he produced articles 'and memorandum of association of the D.G. Modaraba as well as D.G. Modaraba Management (Pvt.) Ltd. A perusal of the articles and memorandum of association of both the companies shows that the respondent was to receive 10 % of the income of D.G. Modaraba on account of management fee. It clearly appears on page 18 of the booklet containing Articles and Memorandum of Association of the two companies. When confronting with this provision Mr. M.D. Ghangat had no explanation whatsoever. In these circumstances it is held that the management fee income declared by the respondent is assessable under section 30 of the Income Tax Ordinance, 1979 and not under section 22 of the Income Tax Ordinance."

3. Mr. Akbar G. Merchant, assisted by Ms. Yasmeen Ajani led the arguments on behalf of the assessees above. Mr. Kaliqur‑Rehman FCA, supported Mr. Merchant and also advanced some new arguments and, thereafter arguments in addition were made by Mr. Irfan Saadat Khan, Advocate. Learned counsel Mr. Aqeel Ahmed Abbasi represented the department, in all the above appeals, duly supported by learned D.R.

4. To resolve the issue as to whether the management income derived by the assessee company is liable to be computed under the head "income from business" under section 22 or under the head "income from other sources" under section 30. Mr. Akbar G. Merchant, the learned A.R. submitted that all the assessees are Modaraba Companies, constituted under the Modaraba Companies and Modaraba (Floation & Control) Ordinance, 1980 which conceived Modaraba Company as engaged in the business of floating and managing Modaraba as per section 2(c) of the Modaraba Law, Same definition has been adopted in section 2(29A) of the Income Tax Ordinance, 1979. He added that section 2(c) above, defines Modaraba Company, to mean a company engaged in the business of floating and managing Modaraba, whereby stressed that same definition has been adopted in section 2(29A) of the Income Tax Ordinance, 1979, whereas section 7 imposes bar in the terms "no Modaraba Company, shall engage in any business of the same nature and compete with the business carried on by Modaraba floated or controlled by it".

5. The learned counsel further argued that section 18 envisages provision of remuneration payable to a Modaraba Company for floating share of Modaraba, in lieu of duties and responsibilities enjoyed by the Modaraba Company , for day-to-day management of Moadarabas such as issuance of Modaraba Certificates maintenance of separate bank account, funds, assets and liabilities of each Modaraba, preparation and circulation of annual accounts, reports, etc. appointment and removal of Auditor of a Modaraba capitalization of profits, distribution of profits & reserves, arranging funds from different sources and utilization thereof to increase the activities of Modaraba, in absence of Board of Directors. To manage arid oversee such functions, is in the nature of business and its reward, as a continuous activity, as such, assessable under section 22, as business income, rather than nature of "Technical Fee", assessable under section 30, as income from "Other Sources", as done by the Income Tax Department.

6. Mr. Akbar G. Merchant, FCA further contended that admittedly all the Management Companies float Modarabas, from which Modaraba Management Fee is earned since inception of each Modaraba, which has been consistently and correctly assessed under section 22, under Business head, since long. However, without any change in law or in facts, the Income Tax Department deviated midstream from said treatment, in case of Messrs D.G. Modaraba, by assessing Management Fee, as income from "Other Sources" and Tribunal also maintained the said treatment. The learned IAC following the unreported ITAT judgment, in case of the appellant, Messrs B.R.R. Investments (Pvt,) Ltd., a Modaraba Company, has resorted to section 66A, for five years (assessment years, 1994‑95 to 1998‑99), and, in other cases, DCIT, under section 62 in relevant assessment years listed above, assessed Modaraba Management Fee, as "Technical Fee", whereby treated it as income from "Other Sources" chargeable under section 30, so as to deny the claim of admissibility of certain expenses, inter alia, depreciation.

The learned A.R. in view of above arguments, forcefully contended that the aforesaid treatment of assessability under section 30 is not correct former practice of assessing under section 22 is not suffering from any irregularity and no reason appears to deviate from past practice. He further contended that section 30 is a residuary provision categorically containing all sources of income which are not includible under any other head of section 15, whereas Modaraba Management Fee derived from Business of Management Modaraba has nothing to do with section 30 of the Income Tax Ordinance, 1979. It is further stressed that under New Income Tax Ordinance, 2001, though definition of "Technical Fee" remains unchanged yet "Madataba Management Fee" is specifically made assessable vide section 18(1)(e), under head "business" for its chargeability, which implies that even in the Repealed Income Tax Law, it is conceived as chargeable under. Business heads vide section 22.

7. Mr. Khaliqur Rehman, FCA, representing AI‑Noor Modaraba Management (Pvt.) Ltd., adopting all the above arguments and referring definition of "Business" provided in section 2(11) of the Repealed Income Tax Ordinance, 1979 and its elaboration in the reported Full Bench decision of ITAT in 1999 PTD 708 (Trib.) and 1997 PTD 460 of Madras High Court, further argued that dependence of Tax Department on section 12(5) read with section 30 is neither proper nor judicious as these are deeming provisions of law, which are irrelevant in case of Modaraba Management fee, because such Fee is actually received/ accrued at the end of the year.

8. Mr. Irfan Saadat, Advocate, and all other learned A.R.s on behalf of their respective assessees, adopted the arguments of Mr. Akbar Merchant, FCA and Mr. Khaliqur Rehman, FCA.

9. Mr. Aqeel Ahmed Abbasi, the learned Legal Adviser of the Department, referring sections 22.and 30 of the Income Tax Ordinance, 1979, vehemently opposed the above arguments whereby stressed that section 22 exclusively deals with the income falling under categories (a), (b) & (c), whereas the term Fee does not find any place therein and as against this, the term Fee finds place in clause (b) of subsection (2) of section 30, as such income from Management Fee is liable to be computed under section 30. In support of his contention, the learned counsel also referred Explanation to section 12(5), which is reproduced as under:

"For the purposes of this subsection, clause (b) of section 24, subsection (2) of section 30, subsection (3‑A) of section 50 and section 80AA, "Fee for technical services" means any consideration (including any lump sum consideration) for rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel) but does not include the consideration for any construction, assembly or like project undertaken by the recipient of the consideration which would be income of the recipient chargeable under the head salary."

Mr. Abbassi further explained that the very definition of the term "business" needs to establish that it is merely trade, commerce and manufacturing, whereas the assessee is not doing any trade and is also not involved in commerce or manufacturing activity, on the contrary, rendering services of managerial skills on a fixed consideration as "remuneration `which shall not accede 10% of net annual profit calculated on the basis of audited profit and loss account of the Modaraba. Owning to nature and character of such services, legislature allowed, Modaraba Formation of Companies, in order to change the character of rendition of services from mere employment of individuals by employee to that of a group of managers rendering services on contractual basis and this rendition of services does not in any manner tentamounts to carry on business, trade, commerce or manufacturing. The learned counsel also urged that statement of account will show that no trading activity is being carried on at all and the statement does not, therefore, constitute trading account emanating P&L, account and since it constitutes income and expenditure therefore, the income earned from such activity falls within the ambit of section 30(2)(b), as such Modaraba Management Companies are separate and distinct assessees for the purpose of Income Tax Ordinance, 1979, therefore, separate accounts are being maintained and are also assessed separately, the actual business is carried out by the Modaraba whereas the Modaraba Management Company, has the privacy of contract with the Modaraba to manage the affairs of the Modaraba and does provide managerial consultancy and technically services to the Modaraba.

10. We have considered the arguments and have gone through the case‑laws. "Modaraba", "Modaraba Company" and "Modaraba Certificate", have been defined as under:‑‑

Modaraba

"Modaraba" means a business in which a person participates with .his money and another with his efforts or skill or both his efforts and skill and shall include Unit Trust and Mutual Funds by whatever name called.

Modaraba Company.

"Modaraba Company' means a company engaged in the business of floating and managing Modaraba.

Modaraba Certificate

"Modaraba Certificate" means a certificate of definite denomination issued to the subscriber of the Modaraba acknowledging receipt of money subscribed by him.

11. Besides above Modaraba Company has been assigned specific jobs to float a Modaraba. A Modaraba cannot operate unless a Modaraba Management. Company exists for its erection, the Modaraba Company has distinct legal entity as compared to Modaraba. One being incorporated under the Companies Law and the other being authorized by the Registrar of Modaraba Companies for floatation as a Modaraba vide section 12(1) and held to be a legal person (S. 11). A Modaraba company derives the following sources of income:‑‑

(a)Management fee, fixed percentage of the Modaraba profit, restricted to 10% out of net annual profits of Modaraba (section 18).

In some cases this is stipulated to reimburse certain expenses incurred by the Modaraba Company for itself as well as the Modaraba. However, this position may not exist in all cases.

(b)Profit on its compulsory investment in the Modaraba at 10 % of the certificates issued (section 17(3)).

12. So as to determine and conclude the issue in controversy, whether it is a business income falling under section 22 or income from other sources under section 30? It would be necessary to consider the character and nature of the management fee earned, keeping in view the above definitions and other relevant facts involved in constitution of Modarabad Company. It is the character of a receipt which determines, whether it is a business receipt or otherwise? In the case of a Modaraba Company, the fee is earned for performing the various services detailed in the Modaraba Ordinance. Since the receipt by its character is a fee for technical services as per provisions of 12(5) of the Income Tax Ordinance, 1979, hence would definitely fall under section 30, relevant section reads as under:‑‑

Section 12(5)

Any income by way of fees for technical services payable by:‑‑

(a)a person who is a resident, except where the fees are payable in respect of services utilized in a business or profession carried on by such person outside Pakistan or for the purpose of making or earning any income from any source outside Pakistan; or

(b)a person who is a non‑resident, where the fees are payable in respect of services utilized in a business or profession carried on by such person in Pakistan or for the purposes of making or earning any income from any sources in Pakistan,

shall be deemed to accrue or arise in Pakistan.

Section 30

(1)Income of every kind which may be included in the total income of an assessee under this Ordinance shall be chargeable under the head "Income from other sources", if it is not included in his total income under any other head.

(2)In particular and without prejudice to the generality of the provisions of subsection (1) the following incomes shall, save as otherwise provided in this Ordinance, be chargeable under the head "Income from other sources", namely:‑‑

(a).....

(b)interest, royalties and fees for technical services:

(c)......

(d).......

(e).......

13. The term "fees for technical services' which finds place in subsection 2(b) of section 30, has been defined in Explanation to section 12(5) reproduced above, and leaves no doubt that "fees for technical services" means any consideration (including any lump sum consideration) for rendering of any managerial, technical or consultancy services, which also finds support from Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980, apart from Memorandum of Article of Association of the Companies which has already been considered by the Tribunal in a decision cited above, we. therefore, have no hesitation to hold that the management fee defined in section 18, is qualifying the definition of "fee for technical services" to be charged under section 30 as income from other sources, in view of Explanation available to section 12(5)(a) of the Income Tax Ordinance. 1979 which by all means, is relevant so far section 30 of the Income Tax Ordinance, 1979 is concerned as the assessee‑company is admittedly rendering technical management and consultancy services to the Modaraba under the certificate of management company, in terms of management fee.

14. We have also considered the arguments of the learned counsel for the assessee that for a decade, the Assessing Officer assessed the income under section 22 of the Income Tax Ordinance, 1979 hence deviation from the history would amount to cause damage to the interest of the assessee and shall deprive him from a right created due to lapse of time making history.

15. There is no legal bar to deviate from the previous treatment followed regularly for a decade, even otherwise incorrect interpretation of law, cannot be taken as a gospel truth. If law permits to move in a correct direction, the officers implementing law, may follow the correct path ignoring the history and without taking into consideration the previous and continuous practice adopted for years together. The language of the statute remains unchanged even then the law grows through the judicial process. The Income Tax Law may afford wide scope for difference of judicial opinion on a variety of legal questions. In fact the learned IAC and DCIT have rightly attempted to elucidate the basis principles involved in the cases above. It must be remembered that forwarding step of the IAC and DCITs. is based on order of the learned Tribunal, as such they realize the profoundness of the observation of the Tribunal. The interpretation of law, therefore, must necessarily be inspired by the principle of growth, we, therefore, find that law cannot be standstill and never reached logical consistency being in the process of growth; hence history cannot sustain being, a sand wall in such circumstances.

16. The next version of learned A. R. also find no merit. We are not in agreement with his contention that under the new Income Tax Ordinance, 2001, though definition of technical fee remains unchanged and yet Modaraba Management Fee is specifically included in section 18(1)(c) under the business head for its chargeability which implies that even in the repealed Income Tax law it is conceived as chargeable under business head vide section 22.

17. We have taken into consideration the above argument at length It is worth‑mentioning that apart from Income Tax Ordinance, 2001 the similar provision of law finds place in Indian Income Tax Act vide subsection (2)(a) and (b) of section 28. The relevant sections are reproduced hereunder:‑‑

Income Tax Ordinance 2001

" 18. Income from business.‑(1) The following incomes of a person for a tax year other than income exempt from tax under this Ordinance, shall be chargeable to tax under the head "Income from business"‑

(a)......

(b) ..:.

(c) ........

(d).........

(e)any management fee derived by a management company including a Modaraba."

Income Tax Act 1961 (India)

"28. Profits and gains of business or profession. The following income shall be chargeable to income‑tax under the head `profits and gains of business or profession'

(i)the profits and gains of any business or profession which was carried on by the assessee at any time during the previous year;

(ii)any compensation or other payment due to or received by,‑‑

(a)any person, by whatever named called managing the whole or substantially the whole of the affairs of an Indian company at or in connection with the termination of his management or the modification of the terms of conditions relating thereto.

(b) .... ..

(c) .

(d) .

(iii) .

(iv) .

18. No doubt same provision of law has been provided as referred to above that any compensation or any other payment due to or received by a person managing the whole or substantially the whole of the affairs of a company, shall be computed under section 28 of Indian Income Tax Act and section 18(1)(c) of the 'Income Tax Ordinance, 2001 being related to profits and gains of business or profession. However, in Income Tax, Ordinance, 1979 we find something contrary to the argument' of the learned A.R. Inclusion of the management fee derived by a management company, floating Modaraba share in section 28 of Indian Income‑Tax. Act and section 18 of the Income Tax Ordinance, 2001, empowered the department to charge tax on such income under the head "Income from business", which does not mean that the department has been given free hand to charge the income under section 22 for the period not falling within the ambit of Indian Income Tax Act and Income Tax Ordinance, 2001. Apparently in the absence of arty such provision in ordinance I9'79, the department has no other course except to invoke the provision of section 30 of the Income Tax Ordinance, 1979, for computing the

income of Modaraba Company carrying on business of floating Modarabas and to earn management fee. We also find that it would amount to give retrospective effect to the new provision of law embodied in Ordinance, 2001 presuming that the intention of adding this section implies to charge management fee under section 22.

19. While interpreting a fiscal statute, the Department. Tribunal or the Court; must look all the words of statutes and interpret the same in the light of what is clearly expressed, therefore, we do not find ay reason to imply anything which is not expressed. In this context, reliance is placed oh the case-law cited as 1971 SCMR 128 and 1997 SCMR 371.

20. It is worth‑mentioning that we cannot extend the scope of the statute by an analogy that scope of section 22 of the Ordinance, 1979 has been extended to management fee in the new law. It would amount to prevent a real, clear and supposed anomaly The Tribunal, should, therefore, depend upon the exact wordings of the Sections prevailing at the relevant time and not upon the subsequent changes in law.

21. Before parting, it would not be unaccustomed to point out that the earlier finding of the ITAT does not specifically elaborate provisions of Modaraba Ordinance, which, has been discussed now at length, however, it is evident that the Articles and Memorandum of Association of the Modaraba Company, were duly taken into consideration, by the Division Bench to arrive at the finding that, "it is Modaraba Company business to float Modarabas and, to earn management fee, hence receipt is assessable under section 30.

22. In the circumstances supra and after taking into consideration the case‑law and all relevant facts, we find no reason to distinguish the decision of the ITAT in case of Messrs D.G. Madaraba Management (Pvt.) Ltd., Karachi, bearing ITA No.618/KB 1995‑96, dated 9‑2-498 as inadvertent/per incuriam.

23. As a result thereof, we find that the income of the Modaraba Company is liable to be computed under the head income from other sources under Section 30 of the Income Tax Ordinance, 1979.

24. The remaining Issues involved in the appeals shall be decided by the respective Benches.

25. Order accordingly.

C M A./850/Tax(Trib )Order accordingly.