COMMISSIONER OF INCOME TAX/WEALTH TAX, LAHORE VS SURRAYA ZAFAR
2008 P T D 202
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C. J., Nasir-ul-Mulk, Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ
COMMISSIONER OF INCOME TAX/WEALTH TAX, LAHORE
Versus
SURRAYA ZAFAR and 941 others
C. As. Nos.1704 to 1905, 2427 to 2625 of 2006 and 33 to 38, 54 to 568, 647 to 653, 725 to 771, 821, 822; 829, 830, 964 and 965 of 2007, decided on 18/10/2007.
(a) Wealth Tax Act (XV of 1963)---
----Ss.17-A(1)(b), 14(1)(2) & 15---Time limit for completion of assessment and reassessment--Held, to a return submitted under S.14(1) or 14(2), Wealth Tax Act, 1963 four years limitation applies for making an order of assessment---Limitation for making an order of assessment on a return under S.15 or revised return thereunder, is two years from the date of return but by virtue of the "clause" whichever is later, it may extend beyond' four years in a given case---Assessment orders on the returns filed under S.14(1) or 14(2) of Wealth Tax Act, 1963 passed after four years are liable to be set aside---Principles.
W.T.As. Nos.417/LB to 419/LB etc.; 2004 PTD (Trib.) 388; 2004 PTD (Trib.) 1014; Understanding of the Statutes by S.M. Zafars; Interpretation of Statutes by Bindra; Commissioner of Income Tax/ Wealth Tax, Lahore v. Muhammad Shafiq 2007 PTD 20; W.T.As. Nos.217/LB to 219/LB 2006 PTD (Trio.) 987, in W.T.As 1667/LB to 1674/LB-2004-PTD Tribunal 1014 and W.T.As. Nos.236/LB to 242/LB etc. 2005 PTD (Trib.) 517 ref.
(b) Interpretation of statutes---
----Every word in a statute is to be assigned some meaning and of course all provisions, ostensibly conflicting, have to be reconciled.
Muhammad Iqbal Vehniwal, Advocate Supreme Court for Appellants (in C.As. Nos.55 to 134, 306 to 317 of 2007).
Ahmer Bilal Sufi, Advocate Supreme Court for Appellants (in C.As. Nos.1837 to 1905, 1704 to 1718, 1722 to 1738 of 2006).
Malik Muhammad Nawaz, Advocate Supreme Court for Appellants (in C.A. No.830 of 2007).
Raja Abdul Ghafoor, Advocate Supreme Court for Appellants (in C.As. Nos.964, 965 of 2007).
Malik Amjad Hussain, Advocate Supreme Court for Appellants (in C.As. 543 to 568 of 2007).
Muhammad Ilyas Khan, Advocate Supreme Court for Appellants (in C.As. 1704 to 1905, 2427 to 2625 of 2006, 33 to 38 of 2007).
Syed Najum-ul-Hassan Kazmi, Advocate Supreme Court for Respondents (in C.As. Nos.1939, 1849, 1854, 1855, 1843, 1844, 1860, 1863, 1867 and 1870 of 2006).
Asghar Ahmad Kharal, Advocate Supreme Court for Respondents (in C.As. Nos. 1802, 1798 of 2006 and C.A. No.408 of 2007).
Syed Mansoor Ali Shah, Advocate Supreme Court, Iqbal Ahmed Cheema, R.I.P., Siraj-ud-Din Khalid, Advocate Supreme Court, Muhammad Iqbal Hashmi for Respondents (in C.As. 54, 380, 381 of 2007, 2499, 2529, 2507 and 2508 of 2006).
Muhammad Naeem Shah, Advocate Supreme Court for Respondents (in C.As. Nos.1771 to 1786, 1755 of 2006, 94, 398, 399, 400 and 401 of 2007).
Dr. Ilyas Zafar, Advocate Supreme Court for Respondents (in C.As. Nos.181, 279, 192, 265, 295 and 296 of 2007, 2561 and 2562 of 2006).
Muhammad Iqbal Hashmi, Advocate Supreme Court for Respondents (in C.As. Nos.436 to 438, 456 to 461, 427 to 429, 422 to 425, 413, 726 to 728, 732, 733 and 546 of 2007, 1795, 1748, 1760 of 2006).
Siraj-ud-Din Khalid, Advocate Supreme Court for Respondents (in C.As. Nos.1709, 711, 1738, 1742, 1754, 1801, 1806, 1851, 1902, 1795, 1799, 1746 and 1747 of 2006, 422 of 2007).
Syed Naveed Andrabi, Advocate Supreme Court and Faiz-ur-Rehman, Advocate on Record for Respondents (in C.As. Nos.2453, 2488, 2556, 1815, 2651 of 2006, 141, 142, 226, 268, 269 and 518 of 2007).
Respondent in person (in C.A. 448 and 528 of 2007).
Date of hearing: 18th September, 2007.
JUDGMENT
SYED JAMSHED ALI, J.---This judgment will govern disposal of listed 942 appeals as all these cases involve a common question of law i.e. interpretation of clause (b) of subsection (1) of section 17-A of the repealed Wealth Tax Act (XV of 1963) (hereinafter referred to as the Act). In most of these cases, assessment was finalized within four years from the end of the assessment year and in some stray cases even after four years. The case of the department is that outer limit for making assessment order is four years while the case of the assessees is that in case a return is filed within the time contemplated by section 14(1), it is two years and the outer limit of four years does not apply in such cases.
2. Since the controversy relates to interpretation of section 17-A (1)(b), it will be appropriate to reproduce the relevant extract there-from: --
S.17-A "Time limit for completion of assessment and re-assessment.---(1) No order of assessment shall be made under section 16 at any time after the expiration of a period of:---
(a) four years commencing on and from the first day of July, 1981, or two years from the date of the filing of a return or a revised return under section 15, whichever is later, where the assessment year is an assessment year commencing before that date; or
(b) four years from the end of the assessment year in which the net wealth was first assessable, or two years from the date of the furnishing of a return or a revised return under section 15, whichever is later, where the assessment year is an assessment year commencing on or after the first day of July, 1981
3. Before the controversial provision is examined, it may be noted that in all these cases assessment was made by the Assessing Officer (Deputy Commissioner, Wealth Tax) determining the liability of the assessees to pay wealth-tax. However, on appeals the Commissioner set aside the assessment orders which were maintained by the Income Tax Appellate Tribunal as also by the learned High Court. The learned Commissioner while interfering in the assessment orders observed that the assessment was required to be finalized within two years from the date of filing of a wealth tax return. He placed reliance on the judgments of the Income Tax Appellate Tribunal in (2004 PTD (Trib.) 388) and 2004 PTD (Trib.) 1014. The learned Income Tax Appellate Tribunal disposed of the appeals of the revenue with a short order by referring to the aforesaid judgments. The question of law identified before the learned High Court was, however, examined by a learned Division Bench of the said Court in some details. It held that two parts of clause (b) of subsection (1) of section 17-A providing for two limitations have to be read disjunctively and the rider `whichever is later' is relatable to the date of the return or the revised return filed under section 15 of the Wealth Tax Act. Accordingly, assessment made beyond the period of two years from the date of return or revised return was held to be invalid.
4. Mr. Muhammad Ilyas Khan, Advocate Supreme Court appearing for the appellants was critical of the order passed by the learned Tribunal as according to him it was a cryptic non-speaking order and the provision of law was not examined at all by the Tribunal. According to him, the two parts of clause (b) aforesaid, have to be read conjunctively. He maintains that outer limit to make assessment order on a return filed under section 14 of the Act is four years and the limitation of two years was contemplated in the eventualities mentioned therein and therefore in some cases it may even be more than four years.
5. Mr. Muhammad Nawaz Malik, Advocate Supreme Court brought to our notice various provisions of Wealth Tax Act to contend that clause (b) has illegally been interpreted by the learned High Court. Mr. Ahmer Bilal Sufi, Advocate Supreme Court referred to Understanding of the Statutes by Mr. S.M. Zafar and Interpretation of Statutes by Bindra to emphasize that punctuation is part of the statute and commas appearing after "Section 15" and the word "later" seen in the context of the basic provision i.e. section 17(1)(b) clearly makes the provision conjunctive and `whichever is later' is to be read in the context of the outer limit of four years. Ch. Abdul Ghafoor, Advocate-On-Record and Mr. Amjad Hussain Malik, Advocate Supreme Court also appeared for the appellants and adopted the submissions made by the other learned counsel for the appellants.
6. Syed Mansoor Ali Shah, Advocate Supreme Court appearing on behalf of the assessees submitted that clause (b) of section 17-A(1) clearly contemplates a period of two years from the date of filing of a return and, therefore, it cannot be stretched to four years. He also referred to various provisions of Wealth Tax Act to contend that in case of a compliant tax payer which has discharged his obligation of submitting wealth tax return there would not be any justification whatsoever of extending time to four years. Learned counsel appearing for the assessees were of the opinion that four years period has been prescribed for non-compliant tax payers who have not at all filed the return and, therefore, the said provision does not apply to a return filed within the contemplated period. Learned counsel relied on Commissioner of Income Tax/Wealth Tax, Lahore v. Muhammad Shafiq (2007 PTD 20), W.T.As. Nos. 217/LB to 219/LB (2006 PTD (Trib.) 987), in W.T.As 1667/LB to 1674/LB (2004 PTD (Trio.) 1014) and W.T.As. Nos.236/LB to 242/LB etc. (2005 PTD (Trib.) 517).
7. Mr. Andrabi, Advocate Supreme Court, Mr. Siraj Khalid, Advocate Supreme Court, Dr. Ilyas Zafar, Advocate Supreme Court, Mr. Iqbal Hashmi, Advocate Supreme Court, .Mr. Asghar Ahmad Kharral, Advocate Supreme Court, Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court and Mr. Muhammad Naeem Shah, Advocate Supreme Court also briefly made submissions on behalf of the assessees. Their thrust of the arguments is that for a compliant tax payer shorter limitation of two years applies while for a non-compliant assessee it is four years.
8. It will be appropriate to note the relevant provisions requiring submission of wealth tax return. Section 14(1)(a) of the Act requires submission of return by the category of persons mentioned therein. This is the first voluntary return. Section 14(1)(a) prescribes the period i.e. 30th day of September of the corresponding assessment year i.e. the year following the financial year. Section 14(2) authorizes the Deputy Commissioner (Wealth Tax Officer) to direct an assessee to file a return in the prescribed form and manner or supply further information. Subsection 2 of section 14 is reproduced herein for facility of reference because an argument has also been addressed before us that this provision contemplates a case where no return has been filed by a person:--
S.14(2) "If the Deputy Commissioner is of the opinion that---
(i) the net wealth of any person is of such an amount; or
(ii) the assets of any person are of such nature, as to render him liable to wealth tax under this Act, then notwithstanding anything contained in subsection (1), he may serve a notice upon such person requiring him to furnish within thirty days from the date of service of such notice, or such longer or shorter period as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be required in respect of the net wealth or assets of such person as 'on the valuation date mentioned in the notice".
(3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
We are not persuaded by the argument that section 14(2) applies to the such cases and four years outer limit applies to cases in which no return has been filed. This, in fact, is the first step, the Assessing Officer is required to take and in case he is of the opinion that in a given case prima facie clause (i) or clause (ii) of section 14(2) is attracted he may put the person submitting return to notice to file return in the prescribed form and manner -or to furnish other information required for making an order of assessment. We may also like to observe here that a case where a person does not file return, at all is squarely and expressly covered by section 17 and if it was intended to be covered by the legislature by section 14(2), section 17 would have not been required. If what is being argued before us is accepted it will render section 17 negatory which is against the basic principle of interpretation that the legislature does not intend superfluity. Every word in a statue is to be assigned some meaning and of course all provisions, ostensibly conflicting, have to be reconciled. Then an occasion to file a return is contemplated by section 15 where a person (required to furnish a return) does not furnish a return within the time allowed by section 14 or wants to revise a return on discovery of any omission or a wrong statement. Section 15 is reproduced herein below:-
S.15 "Return after due date and amendment of return.---If any person has not furnished a return within the time allowed under section 14 or having furnished a return under that section discovers any omission or a wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made."
9. Then under section 16, a Deputy Commissioner has to record an order of assessment on a return filed under section 14 or 15 and in case he is not satisfied he may require the assessee to produce books of accounts etc. or other evidence and then proceed to make an order of assessment.
10. Section 17 of the Act covers three situations; firstly, when no B return at all is filed secondly, when from a return full and true facts are not disclosed. To put it simply it refers to a case of concealment of wealth. The third situation contemplated is where the net wealth chargeable has escaped assessment in, case of first two categories, section 17 provides that a notice could be addressed to an assessee within five years and in the third category of case within four years. It will be appropriate to reproduce the aforesaid section.
S.17 "Wealth escaping assessment,---(1) If the Deputy Commissioner: ---
(a) has reason to believe that by reason of the omission or failure on the part of the assessee to make a return of his net wealth under section 14 for any assessment year or to disclose fully and truly all material facts necessary for his assessment for that year, the net wealth chargeable to tax has escaped assessment for that year, whether by reason of under-assessment or assessment at too low a rate or otherwise; or
(b) has, in consequence of the information in his possession reason to believe, notwithstanding that there has been no such omission or failure as is referred to in clause (a), that the net wealth chargeable to tax has escaped assessment for any year, whether by reason of under-assessment or assessment at or too low a rate or otherwise [;or]
(c) has reason to believe that the verification by the Revenue Officer in respect of a return filed in pursuance of the provisions of first proviso to subsection (1) of section 14 is not correct or incomplete.
he may, in case falling under clause (a), or clause (c) at any time within [five years] and in cases falling under clause (b), at any time within four years of the end of that assessment year, serve on the assessee a notice containing all or any of the requirements which may be included in a notice under subsection (2) of section 14, and may proceed to assess or re-assess such net wealth, and the provisions of this Act shall, so far as may be, apply as if the notice had been issued under that subsection:
Provided that no proceedings under this subsection shall be initiated unless definite information has come into the possession of Deputy Commissioner or he has obtained the previous approval of the Inspecting Additional Commissioner of Wealth-tax in writing to do so.
(2) Nothing contained in this section limiting the time within which any proceeding for assessment or re-assessment may be commenced shall apply to an assessment or re-assessment to be made on such person in consequence of or to give effect to any finding or direction contained in an order under sections [17B;] 23, 24, 25, 26, 27 or 29:
Provided that the provisions of this subsection shall not apply in any case where any such assessment or re-assessment relates to an assessment year in respect of which an assessment or re-assessment could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any provision limiting the time within which any action for assessment or re-assessment may be taken."
11. A perusal of section 17 read with section 17-A(2) shows that these provisions provide complete mechanism for cases in which no return is filed or the assets are undervalued or the wealth chargeable has escaped assessment. Section 17-A(1)(b) excludes a case of omission to file a return because it contemplates an order of assessment under section 16 while the latter section refers to assessment order on the returns filed under section 14 or 13. The opening part of section 17(1)(b) contemplates four years and this, to our mind, is relatable to a return filed under section 14 of the Wealth Tax Act. As observed earlier this could not refer to a non-compliant tax payer because of section 17 and the limitation prescribed by section 17(2) for making an order of assessment in relation to the cases falling under section 17. Thus, the situation contemplated by section 17 cannot be imported in section 17(1)(b) the other limitation is two years from date of a return or a revised return under section 15. A return contemplated in this part of section 17(1)(b) is not under section 14. The return first occurring in clause (b) has reference to the revised return under section 15 because the said section contemplates two returns. First, when a return has not been filed within due date and second when a revised return is filed. The filing of return under section 15 may in some cases be after two years, therefore, in those cases even four years cut of period may not apply as the two years period contemplated is from the date of return or revised return under section 15. If this two years is within the period of four years then the limitation will not be extended beyond four years but in some cases this two years may over-run four years attracting the expression "whichever is later". We say with respect to the learned Judges that their interpretation of the expression "whichever is later" in clause (b) as referring to the return or revised return, is simply out of place for the reason that a revised return under section 15 is going to be later then a return filed under either section 14 or section 15. There may be cases in which even a return under section 14(1) or section 15 may be revised. In fact, minimum of four years is prescribed for a compliant tax payer while the period may be more than four years in case of a non-compliant tax payer.
12. Syed Mansoor Ali Shah, Advocate Supreme Court referred to a number of judgments of the learned High Court, which, in fact, are based on the impugned judgments and, therefore do not advance the proposition that when a return is filed under section 14(1) the two years rule is attracted.
13. As a result of the above, our conclusions are as follows:--
(a) To a return submitted under section 14(1) or 14(2) of the Act four years limitation applies for making an order of assessment.
(b) Limitation for making an order of assessment on a return under section 15 or revised return thereunder is two years from the date of return but by virtue of the clause "whichever is later" it may extend beyond four years in a given case.
14. Accordingly, all orders inconsistent with, our above findings are, therefore, set aside and in all such cases, the appeals are allowed. The assessment orders on the returns filed under section 14(1) or 14(2) passed after four years have rightly been set aside. Such appeals stand dismissed. All the appeals are disposed of in above terms.
M.B.A./C-32/SCOrder accordingly.