VS, 2009 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1716 (2009)

Income Tax Ordinance (XLIX of 2001)---

----Ss. 170(4), 153(1)(b)---C.B.R. Letter No. 5 (1)-M (FAATE) dated 29-12-2005---Refund---Claim of refund was rejected by the Taxation Officer by holding that the services by assessee fell under Presumptive Tax Regime---Appellate Tribunal had already decided that services rendered or provided did not fall under the Presumptive Tax Regime---High Court also held that all the services be that of any form were chargeable under general tax provision and not as full and final discharge---Appeal allowed by the First Appellate Authority was confirmed by the Appellate Tribunal in circumstances.

2006 PTD 1936 and 2008 PTD 1243 rel.

M. Farooq Azam, Memon, D.R. for Appellant.

Abdul Tahir Ansari, I.T.P. for Respondent.

ORDER

KHALID SIDDIQUI (ACCOUNTANT MEMBER).---These appeals have been filed by the department against the considered order of the learned C.I.T. (A) dated 15-3-2007 on the following grounds:--

(1) That the learned C.I.T. (A) Hyderabad was not justified to allow relief to the tax payer as nature of the business of the taxpayer does not fall within the definition as laid down in section 153 (9) of the Income Tax Ordinance, 2001, which is reproduced here under

"Service" includes the, services of accountants, architects, dentists, engineers, interior decorators and lawyers, otherwise than as an employees."

Apparently job done by the, taxpayer through execution of contract does not fall, with the meaning of section 153(1)(b) of the Income Tax Ordinance, 2001.

(2) That the learned C.I.T. (A) Hyderabad was also not justified to allow relief as he has not considered the implications of the insertion of the word "providing of" in clause (b) of sub-section (1) of section 153 through Finance Act, 2005. The term services have further been clarified by the C.B.R. vide No.5(1)-M (FAATE) dated 29-12-2005.

2. Brief facts of the case are that the assessee is an individual derives income of rendering services, Taxation officer rejected the refund application under section 170(4) of the Income Tax Ordinance, 2001 for the reason that above types of service do not fall under section 153(1)(b) because the word "providing of" have been included in section 153(1)(b) vide Finance Act 2005. Assessee being dissatisfied with the order of the taxation officer filed appeal before the 1st Appellate Authority, who vide the impugned order allowed the appeals of the assessee. Department dissatisfied with the order of the L/C.I.T. (A) filed the appeals before this Tribunal.

3. I have heard the learned representatives of both the parties and have also perused the impugned order of the learned C.I.T. (A), assessment order and the relevant record.

4. After perusal of the case record it reveals that for these years under appeal the claim of refund was rejected by the taxation officer by holding that services by assessee fall under PTR. On this score the ITAT in a reported judgment of 2006 PTD 1936 by placing reliance on the earlier judgment of ITAT has already decided that services rendered or provided do not fall under the presumptive tax regime. While also the Honourable Lahore High Court in case reported as 2008 PTD 1243 held that all the services be that of any from are held to be chargeable under general tax provision and not as full and final discharge.

In the light of above case laws, I find no reason of any deviation from the impugned order, therefore, it is confirmed.

C.M.A./87/Tax(Trib.)Appeal rejected.