Messrs SHAHROON INTERNATIONAL (PVT.) LTD., LAHORE VS COMMISSIONER OF INCOME TAX, COMPANIES ZONE-I, LAHORE
2005 P T D 2397
[Lahore High Court]
Before Nasim Sikandar and Jawwad S. Khawaja, JJ
Messrs SHAHROON INTERNATIONAL (PVT.) LTD., LAHORE
Versus
COMMISSIONER OF INCOME TAX, COMPANIES ZONE-I, LAHORE
P.T.R. No. 79 of 2001, decided on /01/.
th
April, 2005. Income Tax Ordinance (XXXI of 1979)---
----Ss. 2(43), 62 & 130(1) [as amended by Finance Act (XII of 1994) and Finance Act (IX of 1996)]---Re-opening of assessment for year 1991-92 through order, dated 28-2-1998---Appeal against, such order before Appellate Authority---Payment of Rs.25 instead of Rs.1000 as appeal fee---Non-making good such deficiency by assessee---Validity---Date of filing of appeal would be relevant for payment of such fee, and not the date of filing of return or initiation of proceedings by original Authority---World "tax" as defined in S.2(43) of Income Tax Ordinance, 1979 had nothing to do with rate of appeal prescribed in S.130(1) thereof, which could not be connected with or made relatable to assessment year---Appeal was dismissed as non-maintainable.
Lahore Development Authority, Lahore and another v. Muhammad Saeed Mehdi, Commissioner Lahore Divisions, Lahore and another, 1994 CLC 2313 and Maharajah of Pithapuram v. Commissioner of Income Tax 1945 13 ITR 221 rel.
Ch. Anwar-ul-Haq for Petitioner.
ORDER
This is an application under section 136(2) of the late Income Tax Ordinance, 1979 alleging that following questions of law arise out of the impugned order of the Income Tax Appellate Tribunal Lahore Bench, dated 6-12-2000.
(1) Whether in view of the facts and the circumstances of the case, was applicant/assessee required to pay Rs. 1,000 instead of Rs.25 'under section 130(1) of the Ordinance as appeal fee for the assessment year 1991-1992, in view of the amendments and in said section through Finance Act, 1994 and 1996?
(2) Whether in view of the facts and the circumstances of the case, had the Tribunal correctly interpreted the decision, dated 14-4-1997 of the Single Bench of the Hon'ble Lahore High Court, Lahore in Writ Petition No9212 of 1997 that "the fee is to be paid in accordance to the law applicable on the date of filing the appeal"?
(3) If the answer of the question No.2 is affirmative, then, was the decision, dated 14-4-1997 of the Single Bench of the Hon'ble Lahore High Court, Lahore in Writ Petition No.9212 of 1997 in accordance with the provisions of the Income Tax Ordinance, 1979?
(4) Whether in view of the facts and the circumstances of the case, was the assessee required to pay any fee against an order passed under section 62/135 of the Ordinance in the second/third round of appeal, where in the first round of appeal he had paid appeal fee with the memorandum of appeal under section 62 and the matter was remanded back for re-consideration by the appellate forum?
2. These questions were earlier submitted before the Tribunal which refused to refer them to this Court for the reasons recorded in para-3 thereof.
"For the assessment year 1991-92, the appellant filed an appeal with the learned CIT(A) Zone-I, Lahore against order, dated 28-2-1998 under section 62/135. The said appeal was dismissed by the learned CIT(A) for the reason that the assessee has paid fee Rs.25 only whereas it had to pay fee according to the amendment made under section 129 vide Finance Act, 1994 and 1996. The assessee was called upon vide order, entry, dated 10-5-1999 by the learned CIT(A) Zone-I, Lahore to make good the deficiency but no further payment was made by the assessee and hence the appeal was dismissed in limine as not being maintainable. Feeling aggrieved, the assessee has filed the appeal before this Tribunal."
3. After hearing the learned counsel for the petitioner we will agree with the learned Members of the Tribunal that there hardly appears any doubt as far payment of fee is concerned. In revenue matters it is the date of filing of appeal which is relevant and neither the filing of return nor initiation of proceedings before the original authority. A reference to the assessment year involved is all the more irrelevant inasmuch as the language used in the Finance Act, 1994 and 1996 prescribed fee for filing of appeals under section 136(1) of the late Income Tax Ordinance did not 'make any reference to the assessment year in respect of which the appeal was being filed before Commissioner of Appeals. The language of the Statute being clear and unambiguous the interpretation of the petitioner would amount to assume so many things and to read a number of words in the language of the Statute which can hardly be justified. The reliance of the learned counsel for the petitioner on the ratio settled in re; Lahore Development Authority, Lahore and another v. Muhammad Saeed Mehdi, Commissioner Lahore Divisions, Lahore and another, (1994 CLC 2313) and re. Maharajah of Pithapuram v. Commissioner of Income Tax (1945) 013 ITR 221) is totally impertinent. Also we are of the view that the word "tax" as defined in section 2(43) of the late Income Tax Ordinance has nothing to do with the rate of appeal provided for in the aforesaid provisions of the late Ordinance. In the presence and availability of a specific provision of law which, as observed earlier, is clear and unambiguous it cannot be said that retrospective effect was being given to the fee prescribed by making a reference to the definition of the word "tax" as contained in the late Ordinance. There is no doubt that the fee under the late Ordinance did include in the definition of "tax However, the payment of that fee having not been made with reference to either the assessment year, the date of filing of return or the date of initiation or completion of assessment proceedings, it cannot be corrected or made relatable to the assessment year in respect which the proceedings were being taken to the first appellate forum.
4. As observed above, since the provision of law is clear and un ambiguous, we will refuse to entertain any of the aforesaid questions.
5. Dismissed.
S.A.K./S-398/LReference dismissed.