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

----Ss.80-BB & 80-C---Constitution of Pakistan (1973), Art. 199 Constitutional petition---Maintainability---Question involved in the case was as to whether loading and unloading would constitute a part of "transportation" or not---Such aspect did not entail any detailed factual inquiry, therefore, Constitutional petition was maintainable.

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

----Ss.80-BB & 80-C---Constitution of Pakistan (1973), Art.199-- Cons.titutional petition---Income derived from plying of goods trans port vehicles---"Transportation" and "ply"---Meaning---Provisions of Ss.80-BB & 80-C, Income Tax Ordinance, 1979 were to be read in harmony and any interpretation was to be made accordingly---Taxation Officer, in the present case, had failed to amplify his opinion with reference to the meanings of words "transportation" and "to ply" as used in the relevant S.R.O. and sections of the statute---High Court in circumstances, directed the Taxation Officer to interpret the whole issue involving the said words in accordance with their meanings, given in the judgment of the High Court and come to a conclusion accordingly---If the Taxation Officer needed to take any guidance from the Commissioner who was the Controlling Officer, he should have no reservation about the same---High Court further observed that the impugned assessment order will not be acted upon until the new finding had been given by the Taxation Officer---Principles.

Section 80-BB, Income Tax Ordinance, 1979 in its text uses the words "in respect of income derived from plying of goods transport vehicles".

"Transportation" means: "the movement of goods or persons from one place to another, by a carrier". Whereas, the meanings of word `ply' `are to use or wield diligently or vigorously, to make regular journeys over a route; to make one's way, direct one's course'.

Section 80-BB which was brought on the statute book by the Finance Ordinance, 2000, dealt with such matters.

According to the present situation, section 80-BB and section, 80-C are to be read in harmony and any interpretation shall be done accordingly.

Taxation Officer, in the present case, had failed to augment with reference to the meanings of these words which were boldly used in the S.R.O. and the relevant sections and Was himself looking for decision of a superior Court for enabling him in taking a correct decision.

High Court directed the Taxation Officer to interpret the whole issue involving these words in accordance with their meanings, given above, and come to a conclusion accordingly. In case the Taxation Officer has to take any guidance from his Commissioner who is the Controlling Officer, he should have no reservation about it.

The assessment order which was impugned, therefore, will not be acted upon until the new finding had been given.

Black's Law Dictionary and Chambers' Twentieth Century Dictionary ref.

(c) Words and phrases---

-------- Transportation and "ply"---Meaning.

Black's Law Dictionary and Chambers' Twentieth Century Dictionary ref.

Latif Ahmad Qureshi for Petitioner.

Shahid Jamil for Respondent.

Dates of hearing: 19th and 20th February, 2004.

JUDGMENT

A preliminary objection has been taken by the learned counsel appearing on behalf of the department to the effect that this writ petition is not maintainable because the petitioner ought to have gone in appeal against impugned assessment order, dated 2-6-2003 (Annexure A-1). Replying to this preliminary objection, the learned counsel for they petitioner stated that the assessment was made under the provisions of section 52(a) of the Income Tax Ordinance; 1979, and there is no provision for appeal under section 129 with respect thereto.

2. Learned counsel for the department went on to say that in case no provisions for appeal were there, the petitioner could have filed a revision petition under section 122(a) of the new law. Learned counsel states that going to the Commissioner in a revision petition would not have helped him. He knew very well that the fate of the case is already sealed and the same position would have prevailed with the Commissioner: Further dwelling on this, the learned counsel stated that several representations were made to the Commissioner against this and who could have, suo motu, exercised the visitorial jurisdiction under the law.

3. With respect to the third objection, the question involved in this case is whether loading and unloading would constitute a part of transportation or not and, therefore, which aspect does not entail any detailed factual inquiry. The preliminary objections are thus overruled.

4. Whereas, the S.R.O. (Annexure-D) used the word transportation of goods through goods transport vehicles, section 80-BB in its text uses the words "in respect of income derived from plying of goods transport vehicles". Learned counsel for the petitioner states that after the goods, reach at a designated place, cranes are used for further lifting these and placing them at the place .of storage. That this is also plying and crane is a transport through which these are lifted and shifted.

5. According to the "Black's Law Dictionary", `transportation' means:--

"The movement of goods or persons from one place to another by a carrier."

Whereas, the meanings of word `ply' according to the Chambers Twentieth Century Dictionary' are as follows:--

"to use or wield diligently or vigorously; to make regular journeys over a route; to make one's way, direct one course."

6. Section 80-BB which was brought on the statute books by the Finance Ordinance, 2000 dealt with such matters. It is said by the petitioner side that section 80-BB is now specific to the issue. Whereas, the learned counsel appearing on behalf of the department is of the view that section 80-C was the governing law.

7. Anyway, according to the present situation, section 80-BB and D section 80-C are to be read in harmony and any interpretation shall be done accordingly.

8. A relevant excerpt from impugned order is reproduced below:--

"The provision of section 80-BB reveals that it is applicable only in cases where the income is derived from plying of goods transport vehicles by any person being the owner of such vehicles. Here as already discussed above the nature of contract is not that of transportation of goods only. It is a contract which included various nature of contracts and the receipts from transportation of goods cannot be separated. Therefore, the receipts do not qualify for the deduction of tax at a reduced rate under Notification , No.27 or chargeable to tax under section 80-BB of the Income Tax Ordinance, 1979. 1 am convinced beyond any iota of doubt that the tax was deductible at the rate of 50%/60% on the receipts of the assessee and chargeable to tax under section 80-C of the said Ordinance.

(iv)A copy of the agreement has also been obtained from Sui Northern Gas Pipe Lines Limited under section 176 of the Income Tax Ordinance, 2001 which also reflects the same position as discussed above. Therefore, tax was deductible under section 50(4) at the rate of 50 % /60 %.

(v)The assessee has failed to provide any decision of the superior Courts/Tribunal in support of its contention. No limitation provided for recovery of tax due under section 52-A.

(vi)The Honourable Federal Tax Ombudsman has not stayed the proceedings, therefore, these are being concluded on the merit of the case."

9. Before passing of the impugned order, it is said that the case the petitioner was dealt with under the provisions of section 80-C and was allowed the benefit for payment of tax at 2 % rather than 5 % which the impugned order determines.

10. The question whether the learned Taxation Officer had correctly appreciated the meanings of the words, defined above or had he not or was he misled by his own definitions of the above terms. In the portion of the order, reproduced above, the learned Taxation Officer stated that he was convinced that the case of the petitioner was one which was exposed to 5 % tax, is suggestive of this. Whereas, he ought to have augmented his arguments with reference to the meanings of these words which were boldly used in the S.R.O. and the relevant sections. This Court also observed in the latter part of the excerpt, re-produced above, that the learned Taxation Officer was himself looking for a decision of a superior Court for enabling him in taking a correct decision. This Court now provides him with an answer to that effect.

11. Therefore, this Court directs the learned Taxation Officer to interpret the whole issue involving these words in accordance with their meanings, given above, and come to a conclusion accordingly. In case the learned Taxation Officer needs to take any guidance from his Commissioner who is the Controlling Officer, he should have no reservation about it.

12. Presently, the assessment order which is impugned, therefore, will not be acted upon until the new finding has been given.

13. With these observations, the writ petition is disposed of.

M.B.A./M-91/L Order accordingly