2010 P T D (Trib.) 68
[Income-tax Appellate Tribunal Pakistan]
Before Jawaid Masood Tahir Bhatti, Judicial Member, Khalid Waheed Ahmed, Chairman and Khalid Siddiqui, Accountant Member
I.T.As. Nos. 1609/KB, 1610/KB, 1611/KB and. 1612/KB of 2005, decided on 20/08/2009.
(a) Income Tax Ordinance (XXXI of 1979)---
----Ss.80-D & 80-DD---Minimum tax on income of certain persons---Calculation of tax liability---Where assessee was taxed under Presumptive Tax Regime under S.80D or S.80DD of the Income Tax Ordinance, 1979 his final tax liability was first calculated under normal tax regime on the basis of total income as the return in that regard was filed by the assessee in accordance with law.
(b) Income Tax Ordinance (XXXI of 1979)---
----Ss.80-D, 80-DD & 50(5)---Minimum tax on income of certain persons---Levy of surcharge---Validity---Provisions of S.80-D or S.80DD, Income Tax Ordinance, 1979 were applicable only when the liability under the normal law regime were taxed on this basis was less than the tax deducted under S.50(5) of the Income Tax Ordinance, 1979---In some cases it may be more than the tax calculated under the normal tax regime including the surcharge and it is against the very scheme of the Income Tax Ordinance, 1979 to levy surcharge from an assessee who had already paid tax at an amount higher than the tax calculated under normal law regime as the tax paid under S.80D/80DD were the final tax liability including income tax and surcharge---Assessee would be subjected to an additional charge in the shape of surcharge only when it was more than the income tax and super tax, if any, payable for that year under the normal tax regime.
(c) Income Tax Ordinance (XXXI of 1979)---
----Ss. 9, 10 & First Sched.---Charge of income tax---Surcharge---Where income tax was not levied under S.9 of the Income Tax. Ordinance, 1979 no surcharge could be levied under S.10 of the Income Tax Ordinance, 1979 as both the sections were read in conjunction---Section 10 of the Income Tax Ordinance, 1979 provide that an additional duty in the form of surcharge will be levied on the income tax payable under S.9 of the Income Tax Ordinance, 1979 at the rate as given in the First Schedule of the Income Tax Ordinance, 1979.
(d) Income Tax Ordinance (XXXI of 1979)---
----First Sched., Ss.9 & 10---Rate of tax---Inducing provisions---Nexus of Schedule with sections---Schedule of Income Tax Ordinance, 1979 had direct nexus with certain sections in the main enactment, which were called the inducing sections, which control and regulate the schedule---Inducing sections of the First Schedule were Ss.9 & 10 of the Income Tax Ordinance, 1979.
(e) Income Tax Ordinance (XXXI of 1979)---
----Ss.10, 80D & 80DD---Charge of super tax and surcharge---Under S.10 of the Income Tax Ordinance, 1979 surcharge was to be levied on the basis of assessed total income---Where tax was not levied on the basis of assessed total income, no surcharge could be levied.
(f) Income Tax Ordinance (XXXI of 1979)---
----First Sched., Part-III, Para-C---Certain sections of Presumptive Tax Regime had been mentioned in Para-C of Part-III of the First Schedule of the Income Tax Ordinance, 1979 only to clarify that wherein a person was assessed to tax under normal law regime and his income also includes a portion of income covered under the Presumptive Tax Regime the late will be excluded.
(g) Income Tax Ordinance (XXXI of 1979)---
----Ss.80-D, 80DD & First Sched., Part-III, Para-C---Minimum tax on income of certain persons---Levy of surcharge---Validity--Sections 80-D and 80DD of the Income Tax Ordinance, 1979 were separate and independent provisions of law having no direct nexus with the provision of the First Schedule and surcharge---Provision of Part-III of the First Schedule of the Income Tax Ordinance, 1979 regarding rates of surcharge were not relevant to S.80D and S.80DD of the Income Tax Ordinance, 1979.
2006 PTD (Trib.) 1189 approved.
I.T.A. Nos. 1238 to 1240/KB of 2003 overruled.
2005 PTD (Trib.) 1882; 2000 PTD 2173; 2002 MLD 209; Oxford Encyclopedic English Dictionary; 2004 PTD (Trib.) 204; I.T.As. Nos. 820, 821, 1175 and 6859/LB/2004 ref.
Aminuddin Ansari for Appellant.
Rehmatullah Khan Wazir, D.R. and Farrukh Ansari, D.R. for Respondent.
ORDER
This Full Bench has been constituted by the Honourable Chairperson to resolve the issue of levy of surcharge on tax under section 8ODD of the repealed Income Tax Ordinance, 1979 as while deciding the above referred appeals the Division Bench of this Tribunal has referred the matter due to the conflicting judgments on the issue reported as 2006 PTD (Trib.)1189 and the decision of this Tribunal in the case of Messrs Wazir Ali Industries Ltd., Karachi in I.T.As. Nos.1238 to 1240/KB/2003 dated 9-3-2005. In both the set of appeals titled above the facts of the case are nearly common as in both the cases, the Taxation Officer issued show-cause notice showing intention to rectify the order under section 221 to levy surcharge at 5% on minimum tax payable under section 8ODD. Assessees furnished their replies but the Taxation Officer found the replies of the assessees unsatisfactory and rectified the orders under section 221 in both the years under review and levied surcharge at 5% which was not levied under section 8ODD at the time of passing the original order under section 62. The Taxation Officer in this regard has placed reliance on the decision of this Tribunal, dated 9-3-2005 in I.T.As. Nos.1238 to 1240/KB/2003 wherein it has been held that "surcharge @ 5% on minimum tax payable under section 80DD is quite justified and in accordance with the provisions of law." The learned CIT(A) has upheld the treatment meted out by the Taxation Officer with the observation that:--
"In the present case the position is quite different. In the original assessment the Taxation Officer omitted to levy surcharge which he was obliged to levy under the provisions of Para-C of Part-III of First Schedule of the repealed Income Tax Ordinance, 1979. Such an omission on his part at the time of original assessment was an error apparent from the record of the case because the relevant provision is a mandatory provision of law which casts an obligation on the assessing officer to levy the surcharge."
Mr. Aminuddin Ansari, Advocate has appeared on behalf of both assessees and has argued that in view of the provisions of section 80DD of the repealed Income Tax Ordinance, 1979 covered with non-obstante clause available in section 80DD, the levy of surcharge of tax paid under section 50(5) at the custom stage is illegal, besides, the act of the learned CIT(A) to confirm the levy on the basis of the order of the Federal Tax Ombudsman is unjustified. He has contended that as per section 80DD where the final tax liability determined under the Ordinance exceeds the amounts collected at the customs stage under section 50(5), the said amount shall be adjustable against such final tax liability. He is of the view that the tax paid under section 50(5) at the custom stage will be the minimum tax and nothing else. Therefore, tax having been paid at the customs stage being an excess of final tax payable, no further surcharge would be leviable. Learned counsel in this regard has placed reliance on the decision of this Tribunal reported as 2005 PTD (Trib)1882 and the decision of the Honourable High Court of Sindh on the issue of the non-obstante clause reported as 2000 PTD 2173 and 2002 MLD 209, to support of his version that the orders passed by both the officers being violative of the provisions of law are not sustainable.
On the other hand representing the department Mr. Rehmatullah Khan Wazir and Mr. Farrukh Ansari have contended that section 8ODD provides that the tax collected under subsection (5) of section 50 on import of edible oil as raw material by an industrial undertaking shall be deemed to be the minimum amount of tax payable under this Ordinance and shall be adjustable where the final tax liability exceeds the amount collected under said subsection. They have emphasized on the definition of tax referring section 2(43) of the repealed Ordinance, 1979 to make out a case that tax means income tax, super tax, surcharge and additional tax chargeable or payable under this Ordinance and also includes penalty, if and or other charges or any consumption or amount leviable or payable under this Ordinance. They have contended that the definition of tax includes any income tax and surcharge therefore according to them that section 80DD makes reference to subsection (5) of section 50 of the repealed Income Tax Ordinance, 1979 which provides that the Collector Customs shall in the case of every number of goods collected advance tax computed, on the basis of value of such goods as increased by the customs duty and sales tax, if any, at the rates specified in the 1st Schedule and credit in any financial year subject to provisions of section 53 for the assessment years commencing on 1st day of July next following the said financial year or the assessment year, in which the "said date" has referred to therein falls, whichever later. They have submitted that in the case of the present assessees to whom section 72 or 81 applies, the assessment year in which the "said date", as referred to therein, falls whichever later. They have further argued that under clause-A the tax shall be collected in the same manner and at the same time as the customs duty, as if such goods (even though exempt from such duty) were liable to such duty and all the provisions of the Customs Act, 1969 shall so far as may be applied accordingly, hence according to the learned DR the treatment meted out by the two officers below is correct and requires no further interference. They have in this regard elaborating certain provisions of law tried to justify the treatment meted out by the officers below. They have referred section 80DD which reads as under :-
"80DD. Minimum tax on income of importers of edible oils etc.---Notwithstanding anything contained in this Ordinance, or any other law for the time being in force, the tax collected under subsection (5) of section 50 on import of edible 'oils as raw material by an industrial undertaking shall be deemed to be the minimum amount of tax payable under this Ordinance and where the final tax liability determined under this Ordinance exceeds the amount collected under the said subsection, the said amount shall be adjustable against such liability."
They have referred section 2(43) which defines "tax" as under:--
"(43) "tax" means income tax, super tax, surcharge and additional tax chargeable or payable under this Ordinance, and includes any penalty, fee or other charge or any sum or amount leviable or payable under this Ordinance."
They have contended that this brings both income tax and surcharge in its ambit. They have argued that section 8ODD makes reference to subsection (5) of section 50, which reads as under:--
"(5) Notwithstanding anything contained in any law for the time being in force.
(a) the Collector of Customs shall, in the case of every importer of goods, collect advance tax computed, on the basis of the value of such goods as increased by the customs duty and sales tax, if any, levied thereon, at the rates specified in the First Schedule, and credit for the tax so collected in any financial year shall, subject to the provisions of section 53, be given in computing the tax payable by such importer for the assessment year commencing on the first day of July next following the said financial year, or in the case of an assessee to whom section 72 or section 81 applies the assessment year, in which the "said date", as referred to therein, falls, whichever is the later;
(b) the tax under clause (a) shall he collected in the same manner and at the same time as the customs duty, as if such goods (even though exempt from such duty) were liable to such duty, and all the provisions of the Customs Act, 1969 (IV of 1969) shall, so far as may be, apply accordingly:
Provided that in the case of a manufacturer importing raw materials, other than edible oils, exclusively for its own use, the Regional Commissioner of Income Tax may certify reduction of the rate of collection under this subsection [upto one hundred per cent, if the aggregate of tax paid or collected during that year equals the amount of tax paid by such assessee in the immediately preceding year and the certificate is not issued during the first year of assessee's business:
Provided further that the provisions of this subsection shall not apply to:
(i) any person re-importing re-usable containers for re-export qualifying for customs and sales tax exemptions on temporary import under Customs Notification S.R.O. 344(I)/95, dated 25th April, 1995; or
(ii) any person importing the following petroleum products, mainly:--
Motor Spirit (MS), Furnace Oil (FO, JP-1 & MTBE.
Provided also that if at any stage it is known that the provisions of this proviso have been misused, such person shall be treated as an assessee in default in respect of such tax and be treated accordingly;
Explanation:- As used in this subsection,
(i) "value", in relation to any goods, means the value as determined under section 25 of the Customs Act, 1969 (IV of 1969), as if the goods were subject to ad valorem duty; and
(ii) "Collector of Customs" means a person appointed as Collector of Customs under section 3 of the Customs Act, 1969 (IV of 1969) and includes a Deputy Collector of Customs, an Assistant Collector of Customs or an officer of Customs appointed as such under the afore-said section."
According to them this subsection itself makes reference to the 1st Schedule, hence the plea taken in Lahore Bench case that 1st Schedule does not originate from section 8ODD, and is therefore inapplicable to it does not hold good. According to the learned DR it is also pertinent to note that rates of tax under section 80C (which relates to presumptive tax regime), are specifically prescribed under the 1st Schedule, thus negating the premise that this Schedule is only applicable in case of assessments made under normal law. They have submitted that the rate of collection of tax under subsection (5) is prescribed in Para F of Part 1 of 1st Schedule, which reads as under:
F. Rate for collection of income tax. Six per cent. Tax under subsection (5) of section 50.
According to the learned DR this uses the words "income tax" instead the word "tax" alone.
Rates of surcharge are prescribed under Part-III of 1st Schedule which reads as under:--
"C. In respect of the income year relevant to the assessment year commencing on or after the first day of July, 2000, a company, not being a banking company, shall pay surcharge equal to five per cent of the amount of income tax payable excluding the amount of presumptive income tax payable under section 80BB, 80CC or 80CD."
It is contended by the learned DR that this specifically excludes section 80B, 80C, 80CC or 80CD from its ambit. According to the learned DR had the legislature desired to exclude section 80DD also, it could have expressly done so. According to learned DR surcharge is included in the definition of "tax". It is chargeable at the rate of five per cent of the amount of income tax payable, which is prescribed under para F above. According to them it hence follows that the word "tax" as used in section 8ODD includes both Income Tax and Surcharge. In this regard they have also referred sections 9 and 10 which are reproduced below:--
"9. Charge of income tax.---(1) Subject to the provisions of this Ordinance, there shall be charged, levied and paid for each assessment year commencing on or after the first day of July, 1979, income tax in respect of the total income of the income year or years, as the case may be, of every person at the rate or rates specified in the First Schedule:
Provided that where, by virtue of an amendment in the First Schedule, the rate of income tax, for the purpose of assessment in respect of any assessment year, is altered, the rate of income tax existing prior to the said alteration shall continue to apply in respect of any assessment year to which the said existing rate is applicable.
(1A) Notwithstanding anything contained in section 37 of the Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980 (XXXI of 1980), or any other law for the time being in force, there shall be charged levied and paid for each assessment year commencing on or after the first day of July, 1993, income tax in respect of the total income of a modaraba at the rate specified in the First Schedule:
Provided that the total income of a modaraba shall not be chargeable to tax for the first three assessment years after commencement of its business if not less than ninety per cent of its profits in a year is distributed to the modaraba certificate holders.
(2) Where, by virtue of any provision of this Ordinance, income tax is to be deducted at source or collected or paid in advance, it shall be so deducted, collected or paid, as the case may be, accordingly.
10. Charge of super tax and surcharge.---(1) In addition to the income tax charged for any year, there shall be charged for any year, there shall be charged, levied and paid for that year in respect of the total income, or any part thereof,' of the income year or years, as the case may be, of every person, an additional duty of income tax (in this Ordinance referred to as `super tax') and surcharge at the rate or rates specified in the First Schedule:
Provided that where, by virtue of an amendment in the First Schedule, the rate of super tax and surcharge, for the purposes of assessment in respect of any assessment year, is altered, the rate of super tax and surcharge existing prior to the said alteration shall continue to apply in respect of any assessment year to which the said existing rate is applicable.
(2) Subject to the provisions of this Ordinance, the total income of any person shall, for the purposes of super tax and surcharge, be the total income as assessed for the purposes of income tax, and where an assessment has become final and conclusive for the purposes of income tax for any year, the assessment shall also be final and conclusive for the purposes of super tax or surcharge, as the case may be, for the same year.
(3) All the provisions of this Ordinance relating to the charge, assessment, deduction at source, collection, or payment in advance, recovery and refund of income tax shall apply, so far as may be, to the charge, assessment, deduction at source, collection, payment in advance, recovery and refund of super tax and surcharge, as the case may be."
According to them sections 9 and 10 both refer to the term "income, which is defined under section 2(44) as under:--
"(44) "total income" means the total amount of income referred to in section 11 computed in the manner laid down in this Ordinance; and includes any income which, under any provision of this Ordinance, is to be included in the total income."
In this regard they have submitted that assessment is defined as under:
"(7) "assessment" includes re-assessment and additional assessment and the cognate expressions shall be construed accordingly;".
According to learned D.R. this is not an exhaustive definition, but an inclusive one, thus having a wider scope. According to learned D.R. the word "assess" as defined in Oxford Encyclopedic English Dictionary, includes in its meaning:--
"1a estimate the quality of. 1b estimate the value of property for taxation or insurance purposes. 2a (usu. Foll. By on) fix the amount of (a tax etc. and impose it on a person or community.... etc. "
According to them this again is a wide definition, and carries within its ambit any sum on which a tax is charged. According to them the basis of chargeability under section 9 is "total income", and not "assessed income". They have stressed that section 9 begins with the words "Subject to the provisions of this Ordinance", and is a subordinate clause. Its scope is ousted when it is in conflict with the non-obstante clause, which is not the case here. According to them section 10 creates an additional charge, in addition to the charge created under section 9 According to them the creation of this additional charge on cases covered of under section 80DD is fortified by a reading of Para. Schedule, together with Para F of Part-I of 1st Schedule. The use of the word "tax" in section 80, DD, and the phrase "income tax" in Para F of Part-I of 1st Schedule, shows, that section 80DD is not in conflict with sections 9 and 10, and both can coexist.
We have heard the representatives from both the sides and have also perused the impugned orders, case-law referred and other relevant record of the case.
We have found that in the decision of this Tribunal dated 9-3-2005 in I.T.As. Nos.1238 to 1240/KB/2003 (Assessment Years, 1999-2000 to 2001-2002) this Tribunal had upheld the surcharge @ 5% on minimum tax payable under section 80D to be justified for the reason that:--
(a) Section 80D as well as 80DD both are charging sections providing for charge of minimum tax which is charged on the basis of turn over of certain persons under section 80DD and on the value of imported edible oil to be used as raw material by an industrial undertaking under section 80DD.
(b) The Tribunal in its decision reported as 2004 PTD (Trib.) 204 dated 21-7-2003 has held that both the provisions of law are pari-materia to each other. The Tribunal in its decision has held as under:--
"Income Tax Ordinance, 1979 (XXXI of 1979)---Section 50(5), 80DD---Second Schedule---Part I---Clause (118-C)---C.B.R.'s letter No.F.I-167/ITI)99, dated 20-9-2001-Minimum tax on income---Sale of ghee and cooking oil---Levy of tax under section 80DD---Deletion by CIT(A)---Validity---Assessees deriving income from manufacture and sale of ghee and cooking oil---They are enjoying tax holiday---Assessments were finalized and by invoking provision of section 80DD minimum tax was levied by placing reliance on C.B.R.'s Circular dated 20-9-2001-Treatment of Assessing Officer was assailed before CIT(A) who deleted imposition of minimum tax levied---Challenge to---Special as well as general law on same subject in field which one prevails---Question of---Whether from plain reading of sections 80D and 80DD, it is evident that both sections of law are pari materia to each other to extent that minimum tax is payable in both of sections---Held, yes---Whether proviso to section 50(5) is relevant to those assessees who are paying tax and RCIT may certify reduction of tax if tax paid or collected during assessment year equals amount of tax assessed and paid by assessee in preceding assessment--Held, yes---Whether when legislature has given its attention to separate subject and made provision for its, presumption is that subsequent general enactment is not intended to interfere with special provision unless it manifests that intention very clearly---Held, yes---Whether in absence of any specific provision that section 80DD will prevail over Economic Reforms Act XII of 1992, later statute i.e. Economic Reforms Act XII of 1992 though earlier in time consequence will prevail over section 80DD of general statute---Held, yes ."
(c) Para-C of Part-III of 1st Schedule which empowers an assessing officer to levy surcharge, specifically excluding income tax chargeable under sections 80BB, 80C & 80CC from levy of surcharge. But it does not exclude 80D as well as 80DD from the levy of surcharge. For the sake of convenience Para-C of Part-III of Ist Schedule is reproduced below:--
"[In respect of the income year relevant to the assessment year commencing on or after the first day of July, 2000, a company, not being a Banking-Company, other than a Banking-Company shall pay surcharge equal to five per cent of the amount of income tax payable excluding the amount of presumptive income tax payable under sections 80BB, 80C, 80CC or 80CD":]
[Provided that no surcharge under this sub-paragraph shall be payable for the assessment year commencing on or after the first day of July, 2002.]
While this Tribunal in its decision reported as 2006 PTD (Trib.) 1189 has held that:-
11. "We have considered the rival contentions and have also perused the relevant record and the precedents relied upon by the learned counsel for the assessee and are persuaded to agree with him. The learned, AR is right in stating that before an assessee is taxed under minimum tax regime as contemplated in section 80DD his final tax liability is first calculated under the normal tax regime on the basis of total income and it is only when the liability under the normal law regime worked out on this basis is less than the tax deducted under subsection (5) of section 50 that he is taxed under section 80DD and the tax deducted under subsection (5) of section 50 is taken as the minimum tax payable by the assessee, though actually it is more than the tax calculated under the normal tax regime including the surcharge under Para-C; and it is against the very scheme of the repealed Ordinance to charge surcharge from an assessee who is already paying tax at an amount higher than the tax calculated under the normal law regime which section 80DD calls the final tax liability and which includes both the income tax and surcharge. In other words it is only when the final tax liability including both income tax and surcharge is less than the tax deducted under subsection (5) of section 50 that the tax deducted under subsection (5) of section 50 is taken as the minimum tax payable by the assessee under section 80DD. The language of the section 80DD does not support the stance of the Department that once the assessee is taxed under section 80DD and the tax deducted under subsection (5) of section 50 is taken as the minimum liability the assessee will be subjected-to an additional charge in the shape of surcharge because the minimum charge will be imposed only when it is more than the income tax and surcharge payable under the normal tax regime.
12. We also agree with the submission of the counsel for the assessee that surcharge will be levied only when income tax will be levied under section 9. Where income tax is not levied under section 9 no surcharge can be levied under section 10. Which is apparent, if both the sections are read in conjunction, section clearly states that an additional duty in the form of surcharge will be levied on the income tax payable under section 9 at the rate as given in the First Schedule. It also supports the contention of the counsel for the assessee that a Schedule has nexus with, certain sections in the main enactment, which are called the inducing sections, which control and regulate the Schedule. The inducing sections of the First Schedule are the sections 9 and 10 and where no tax is charged under section 9 no surcharge can be levied under section 10. The judgment of the Honourable Karachi High Court referred supra also supports the contention of the counsel for the assessee.
13. Under section 10 surcharge is levied on the basis of assessed total income meaning thereby that where tax is not levied on the basis of assessed total income no surcharge can be levied. It is no ones case that tax under section 80DD is levied on the basis of the assessed total income; and if tax is not levied on the basis of assessed total income no surcharge can be levied. The reason given by the learned CIT(Appeals) for disallowing the appeal of the assessee is unsustainable. When the very scheme of the repealed Ordinance does not support the levy of surcharge on tax recovered under section 80DD there was no need to specifically refer section 80DD in Para-C. Additionally we agree with the contention of the counsel for the assessee that certain sections of the presumptive tax regime have been mentioned in Para-C only to clarify that where a person is assessed to tax under normal law regime and his income also includes a portion of income covered under the presumptive tax regime the later will be excluded."
Although the above referred decision of this Tribunal reported as 2006 PTD (Trib.) 1189 has been upheld by the Full Bench of this Tribunal vide order dated 21-11-2008 while deciding various appeals bearing I.T.As. Nos.820, 821, 1175 and 6859/LB/2004 (Assessment years, 2001-2002), we want to reassert that in the cases where assessee is taxed under Presumptive Tax Regime under section 80D or 80DD of the late Income Tax Ordinance, 1979 his final tax liability is first calculated under the normal tax regime on the basis of total income as the return in this regard are being filed by the assessee in accordance with the law. The provisions of section 80D or 80DD are applicable only when the liability under the normal law regime are taxed out on this basis is less than the tax deducted under subsection (5) of section 50 of the late Ordinance, 1979. In some cases it may be more than the tax calculated under the normal tax regime including the surcharge under above referred Para-C and it is against the very scheme of the repealed Ordinance, 1979 to levy surcharge from an assessee who has already paid tax at an amount higher than the tax calculated under normal law regime as the tax paid under sections 80D/80DD is the final tax liability including income tax and surcharge. We are of the view that the assessee will be subjected to an additional charge in the shape of surcharge only when it is more than the income tax and super tax, if any, payable for that year under the normal tax regime. In the cases where the income tax is not levied under section 9 no surcharge can be levied under section 10 as both the sections are read in conjunction. Section 10 states that on additional duty in the form of surcharge will be levied on the income tax payable under section 9 at the rate as given in the 1st Schedule of the repealed Income Tax Ordinance, 1979. We are of the view that the schedule of the Income Tax Ordinance has direct nexus with certain sections in the main enactment, which are called the inducing sections, which control and regulate the Schedule. The inducing sections of the 1st Schedule are the sections 9 and 10 of the repealed Income Tax Ordinance, 1979. Under section 10 surcharge is levied on the basis of assessed total income meaning thereby that where tax is not levied on the basis of assessed total income, no surcharge can be levied. We have already held that certain sections of the Presumptive Tax Regime have been mentioned in Para-C of Part-III of the First Schedule of the repealed Ordinance, 1979 only to clarify that wherein a person is assessed to tax under normal law regime and his income also includes a portion of income covered under the presumptive tax regime the later will be excluded. Sections 80D and 80DD are separate and independent provisions of law having no direct nexus with the provision of the 1st Schedule and surcharge. It is therefore held that the provisions of Para-III of the First schedule of the repealed Income Tax Ordinance regarding rates of surcharge are not relevant to sections 80D and 80DD of the late Ordinance, 1979. Consequently the decision of this Tribunal, dated 9-3-2005 in I.T.As. Nos.1238 to 1240/KB/2003 (Assessment Years, 1999-2000 to 2001-2002) and the similar view taken in this regard by the other Benches of the Tribunal are overruled and the decision of this Tribunal reported as 2006 PTD (Trib.) 1189 and the similar view taken in this regard by the other Benches of the Tribunal being already approved by the Full Bench of this Tribunal are upheld.
As this Full Bench was constituted to consider a limited question pertaining to scope of levy of surcharge on minimum tax under sections 80D and 80DD of the repealed Income Tax Ordinance, 1979, therefore, the above titled appeals may be placed before the Division Bench of this Tribunal for deciding other issues, if any, raised in the relevant appeals.
All the four appeals are disposed of accordingly.
C.M.A./125/Tax(Trib.)Order accordingly.