FEDERAL BOARD OF INTERMEDIATE & SECONDARY EDUCATION, ISLAMABAD VS FEDERATION OF PAKISTAN through Secretary, and 6 others, 2005 PTD-LAHORE-HIGH-COURT-LAHORE 2082 (2004)

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

----S. 14---Income Tax Ordinance (XLIX of 2001), S. 53---Income of University or other educational institutions established solely for educational purposes and not for purposes of profit---Exemption---Conditions.

Any income shall be exempted upon' payment of tax under the Income Tax Ordinance, 1979 and Income Tax Ordinance, 2001 subject to the following conditions:-

(i)if it is an income of any university, or

(ii)if it is an income of other educational institution,

(iii)if it is established solely for educational purpose, and

(iv)not for purposes of profits.

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

----Ss. 50(2A), 14 & Sched. II, Item No.86---Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), Preamble---Federal Board of Intermediate and Secondary Education Act (XVIII of 1975), Preamble---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Income of bank interest of Boards of Intermediate and Secondary Education---Exemption---Contention of the Revenue was that only such Institutions would be exempted where only teaching was imparted in various courses and since the Boards did not involve themselves in the teaching process directly, they would not be entitled to the said exemption---Validity---Held, words used by the Legislature in the statutes creating the Boards were "established solely for educational purposes" as distinct from "for purposes of profits"---Boards had not been established for purpose of profits rather the purposes were duly laid down in the respective statutes creating them--- Profits accruing from the deposits of their funds with Scheduled Banks were accruing not because the purpose of the Boards was to earn profits rather these deposits were in compliance with the provisions of the law governing the Boards---Boards established primarily for the purpose of organizing, regulating, developing and controlling Intermediate and Secondary Education in their respective territories, had been established for education purposes---Act of the Revenue in deducting or causing or directing to deduct any tax under the Income Tax Ordinance, 1979 or Income Tax Ordinance, 2001 qua the said deposits was declared to be void and without lawful authority by the High Court.

Afnan Karim Kundi and Hafiz Muhammad Idrees for Petitioners.

Arshad Majeed Malik and Malik Muhammad Nawaz for Respondents.

Date of hearing: 7th April, 2004.

JUDGMENT

This judgment shall decide W.P. No.121 of 2004 and W.P. No.1974 of 2001 as common questions are involved.

2. The petitioner in W.P. No.121 of 2004. (hereinafter to be referred as the first petitioner) is a creature of the Federal Board of Intermediate and Secondary Education Act, 1975 (hereinafter to be referred as the Act of 1975) while the petitioner in W.P. No.1974 of 2001 (hereinafter to be referred as the second petitioner) is a creature of the Punjab Board of Intermediate and Secondary Education Act, 1976 (hereinafter to be referred as the Act of 1976). Both the petitioners have been depositing their respective funds with scheduled Banks and in receipt of profits accruing therefrom. In both the cases, during the financial year, 2000-2001, the respondents-Authorities intimated the petitioners or their bankers deduction of tax under section 50(2A) of the Income Tax Ordinance, 1979 on the profits earned on the said deposits of the petitioners. The second petitioner brought its grievance to this Court in the year, 2001 while the first petitioner took its grievance to the learned Federal Tax Ombudsman who recorded findings on 24-6-2002 that the said action of the respondents constitutes maladministration. The respondents filed a representation which was accepted by the President of Pakistan on 25-10-2003. Inter alia, it was observed by the President that the question relating to taxability the Board's income is pending before the High Court and it would be just and appropriate that legal questions arising in the case are decided by the appropriate legal forum.

3. Messrs Afnan Karim Kundi and Hafiz Muhammad Idrees, Advocates for the petitioners respectively argue that the petitioners are entitled to exemption granted vide Item No.86 of Schedule-II to the Income Tax Ordinance, 1979 and reiterated in Item No.92 of the said Schedule to the Income Tax Ordinance, 2001. It is further contended that the first petitioner has been constituted by the Federal Government under the said Act or 1975 while the second petitioner has been constituted by the Government of the Punjab under the said Act of 1976. The precise contention is that the two petitioners for all purposes are extension of the Federal Government or the Provincial Government otherwise are a local authority set up under the said statutory provisions.

4. Messrs Malik Muhammad Nawaz and Arshad Majeed Malik, Advocates, for the Revenue, on the other hand, object that the petitioners must first avail the remedies provided under the Income Tax Ordinance and the writ petitions as such are .incompetent. They vehemently argue that the petitioners do not constitute a University or an educational institution within the meaning of the said Items of Schedule-II to the Ordinances of 1979 and 2001. According to the learned counsel, the petitioners cannot be said to be imparting education.

5. I have given some thought to the respective contentions of the learned counsel for the parties. I deem it proper to reproduce hereunder the said similarly worded entry in Item with reference to section 14 of the Income Tax Ordinance, 1979 and section 53 of the Income Tax Ordinance, 2001:--

"Any income of any university or other educational institution established solely for educational purposes and not for purpose of profit."

It will, .therefore, be seen that any income shall be exempted upon payment of tax under the said laws subject to the following conditions-

(i)if it is an income of any university, or

(ii)if it is an income of other educational institution,

(iii)established solely for educational purpose, and

(iv)not for purposes of profits.

6. Now the first petitioner has been established by the Federal Government under section 3 of the said Act of 1975 while the see3nd petitioner has been established under section 3 of the said Act of 1976 by the Provincial Government. Upon a reading of section 8 of the said Act, 1975 and section 10 of the said Act of 1976, the petitioners have the power to organize, regulate, develop and control Intermediate Education and Secondary Education. The said provisions then particularize the powers without prejudice to the said general provision and these include the powers to hold and conduct all examinations pertaining, inter alia, to Intermediate and Secondary Education, to prescribe courses of study for the examinations, to prescribe the Rules for admission of candidates to the examinations and to recognize institutions.

7. In the case of the first petitioner, the Federal Government and in case of the second petitioner the Minister for Education or the Provincial Government has the power to cause an inspection to be made by such person or persons as it may direct, of the offices, activities and funds of, and of the examinations conducted by the Board and to cause an enquiry to be made in like manner in respect of any matter concerning the Boards i.e. the petitioners. The said Acts of 1975 .and of 1976 respectively provide for the audit of the accounts of the petitioners. The principal officers of the petitioners i.e. the Chairman and the Secretary are to be appointed by the Federal Government in the case of the first petitioner and the Controlling Authority in the case of the second petitioner.

8. Upon a reading of the said provisions of the Act of 1975 and the said of 1976 it is but apparent that the petitioners have been constituted by the Federal and the Provincial Governments respectively for the sole purpose organizing, regulating, developing and controlling Intermediate education and Secondary education in the Islamabad Capital Territory and the Rawalpindi Division respectively.

Now as already stated by me above, the said Income Tax Ordinance exempts any income of a university or an educational institution established solely for educational purposes and not for purposes of profits. Now I have examined the University of the Punjab Act, 1973 and the Quaid-i-Azam University (erstwhile University of Islamabad) Act, 1973. I find that' section 3 of the said two Acts are almost in para materia. Under the said provisions of the said two Acts, the Universities reconstituted respectively at Lahore and at Islamabad, under section 4 of the said Acts, shall have the powers, inter alia, to provide for instruction in such branches of learning as the University may deem fit and to make provision for reason and for the advancement and dissemination of knowledge in such manner as the University may determine, to prescribe courses of studies to be conducted by it and the Colleges; to hold examinations and to award and confer degrees, diplomas, certificates and other academic distinctions to and on persons who have been admitted to and have. passed its examinations under prescribed conditions.

10. It will be thus seen that one of the primary power/function of the said Universities is to hold examinations in the manner prescribed and as a result to confer the said awards upon successful candidates.

11. Now the contention of the learned counsel for the respondents as noted above is that the exemption envisaged by the said Income Tax laws is to be availed only by such institutions who impart education. Precisely, what is being tried to be argued is that only such institutions would be exempted where only teaching is imparted in various courses and since the petitioners-Boards do not involve themselves in the teaching process directly they would not be entitled to the said exemption. In my humble opinion, the contention is wholly misplaced. The words used by the Legislature are "established solely for educational purposes" as distinct from "for purposes of profits." It can be safely stated that the petitioners-Boards have not been established for purpose - of profits rather the purposes are duly laid down in the said respective Federal and Provincial enactments. Now the said profits are accruing not because the purpose of the petitioners is to earn those profits rather the first petitioner has made those deposits in compliance with the provisions of the law governing it while the second petitioner is maintaining its c funds also in accordance with the said Act of 1976. It cannot at all be said that the petitioners established primarily for the purpose of organizing, regulating, developing and controlling Intermediate and Secondary Educations in their respective territories have not been established solely for education purposes.

12. So far as the said preliminary objection raised by the learned counsel for the respondents is concerned, suffice it to say that in view of the persistent conduct of the respondents in the matter, the remedies provided under the said Income Tax Ordinance would be illusory.

13. For all that has been stated above, both the writ petitions are allowed and the act of the respondents in deducting or causing or directing to deduct any tax under the Income Tax Ordinance, 1979 or Income Tax Ordinance, 2001, qua the said deposit is declared to be void and without lawful authority. No orders as to costs.

M.B.A./F-100/LPetitions allowed.