COMMISSIONER OF INCOME TAX VS DAWOOD HERCULES CHEMICALS LTD., 2006 PTD-SUPREME-COURT 2498 (2006)

(On appeal from the judgment, dated 6-7-2001 passed by the Lahore High Court, Lahore in Writ Petition No. 2985 of 1996).

Income Tax Ordinance (XXXI of 1979)---

----Ss. 53(2) & 87---Constitution of Pakistan (1973), Art.185(3)---Delay in filing of estimate---Revised estimate filed next year---Allegation against petitioner-company was that estimate filed by it was delayed by two days, hence, it was issued notice by Department for payment of additional tax---High Court while accepting Constitutional petition filed by company found that in revised estimate filed by company 'next year, it paid all dues/tax on the basis of revised estimate and earlier default of two days in filing estimate was of no consequence--Plea of laches raised by Department was not accepted by High Court---Validity---Revised estimate was filed by company six days before the target date---Company had paid all its liability on the basis of revised estimate---Course adopted by company was supported by S.53(2) of Income Tax Ordinance, 1979---Earlier default of one or two days became irrelevant in facts and circumstances of the case---Petition for leave to appeal filed by Department was dismissed.

M. Ilyas Khan, Senior Advocate Supreme Court and M. Aslam Chatha, Advocate-on-Record for Petitioners.

Dr. Ilyas Zafar, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Respondents.

ORDER

KARAMAT NAZIR BHANDARI, J.---Respondent-Company was issued a notice under section 87 of the Income Tax Ordinance, 1979 in respect of assessment year 1991, calling upon the Company to pay additional tax in the sum of Rs.12,40,015. The Assessing Officer was of the view that:

(i) The alleged estimate filed on 17-9-1989 was out of time;

(ii) The alleged estimate filed on 19-3-1990 for the, third instalment was also out of time; and

(iii) The Company has willfully and deliberately withheld the funds of the Government and used the same for its business activities. Therefore, the company should pay additional tax on so much of the Government funds used by it".

2. The notice was questioned by the company in the Lahore High Court, through Writ Petition No.2985 of 1996. The High Court allowed the petition on the ground that the respondent-Company had filed revised estimate on 9-6-1990 and paid all the dues/tax on the basis of that estimate and that earlier default of two days in the filing of the estimate for the quarter ending 15-9-1989, was of no consequence. The plea of laches raised by the petitioner herein was also not accepted by the Lahore High Court.

3. In support of this petition for leave to appeal from the judgment of the Lahore High Court, dated 6-7-2001, Mr. Ilyas Khan, learned Advocate Supreme Court after taking us through section 53 of the Income Tax Ordinance, 1979 has emphasized that undisputedly the estimate filed on 17-9-1989 was delayed by two days and as such the impugned notice for payment was justified in law. In reply it has been argued by the learned counsel for the respondent-Company that 16th of September, 1989 was Sunday and therefore a closed day as such estimate filed on 17th September, 1989 was within time.

4. It is, established from record and it has not been disputed before us that final and revised estimate was in fact filed by the company on 9-6-1990, six days before the target day i.e. 15-6-1990. It is also not disputed that the company had paid all its liability on the basis of the revised estimate. The course adopted by the respondent, in the facts and circumstances of the case, has the backing of section 53(2) of the Income Tax Ordinance, 1979. The High Court, therefore, correctly allowed the Constitutional Petition filed by the Company. The earlier default of one or two days becomes irrelevant in the facts and circumstances of the case.

5. No ground for leave is made out which is refused and this petition is dismissed.

S. M. B./C- 14/SCPetition dismissed.