COMMISSIONER OF INCOME TAX/WEALTH TAX, COYS ZONE, ISLAMABAD VS AL-MUSTAFA TRUST, RAWALPINDI
2010 P T D 1194
[Islamabad High Court]
Present: Muhammad Munir Peracha and Muhammad Ramzan Chaudhry, JJ
COMMISSIONER OF INCOME TAX/WEALTH TAX, COYS ZONE, ISLAMABAD
Versus
AL-MUSTAFA TRUST, RAWALPINDI
Tax Reference No. 33 of 2007, decided on 27th July, 2009.
(a) Income Tax Ordinance (XXXI of 1979)--- ----S.2(16)(bb)---Trust Act (II of 1882), S.5---Trust formed under provisions of general law i.e. Trusts Act, 1882 and not under a special law, would not fall within scope of definition of `company' given in S.2(16) of Income Tax Ordinance, 1979.
(b) Income Tax Ordinance (XXXI of 1979)---
----S.2(16)---Trusts Act (II of 1882), S.5---Phrase "a trust formed, under any law for the time being in force "---Connotation---Trust formed under a special law would fall into the definition of a company for the purposes of Income Tax Ordinance, 1979 and a trust formed under the provisions of general law, i.e. Trust Act, 1882, is outside the scope of the definition of a company given in S.2(16) of the Income Tax Ordinance, 1979.
Qazi Ghulam Dastagir for the Petitioner.
Hafiz Muhammad Idrees for the Respondent.
Date of hearing: 10th June, 2009.
JUDGMENT
MUHAMMAD MUNIR PERACHA, J.---The respondent assessee is a Trust, registered and governed by the Trust Act, 1882. The assessee filed return of income for the income year 2002-03. The taxation officer vide order-dated 25-5-2005, assessed the income of the assessee and Income Tax thereon as a company. The assessee challenged the order passed by the taxation officer through an appeal filed with Commissioner of Income Tax (Appeals). The Commissioner (Appeals) vide order dated 27-8-2005, came to the conclusion that the status of the assessee is that of an AOP. The Commissioner of Income Tax felt aggrieved of the said order and approached income tax Appellate Tribunal. The Appellate Tribunal vide judgment dated 7-1-2006, concurred with the finding recorded by the Commissioner (Appeals). The Commissioner Income Tax has challenged the order dated 7-1-2006, passed by the Tribunal through the present reference. The question of law proposed by the Commissioner Income Tax is as under:
"Whether on the facts and in the circumstances of the case the learned ITAT was justified to hold that the assessee though registered and governed by the provisions of Trust Act, 1882 cannot be assigned the status of company under section 2(16)(bb) of the Income Tax Ordinance, 1979"?
2. Company is defined in section 2(16) of the Income Tax Ordinance, 1979 to mean:---
(a) company as defined in the Companies Ordinance, 1984 (XLVII of 1984); or
(b) a body corporate formed by or under any law for the time being in force; or
(bb) a Trust formed by or under any law for the time being in force; or
(c) a body corporate incorporated by or under the law of a country outside Pakistan relating to incorporation of companies; or
(cc) a Modaraba as defined in the Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980 (XXXI of 1980)];
(d) the Government of a Province;
(e) a foreign association, whether incorporated or not, which the Central Board of Revenue may, by general or special order, declare to be company for the purposes of this Ordinance for such assessment year or years (whether commencing before, on or after the first day of July, 1979) as may be specified in the said order;]
3. It is to be examined whether the assessee Trust has been formed by or under any law for the time being in force. It is not denied that the assessee Trust has not been formed by any law for the time being in force. The point to be determined is what meaning should be assigned to the phrase "a Trust formed, under any law for the time being in force". In our opinion a Trust formed under a special law would fall into the definition of a company for the purposes of Income Tax, Ordinance, 1979. A Trust formed under the provisions of general law, Trusts Act, 1882, is outside the scope of the definition .of a company given in section 2(16) of the Income Tax Ordinance, 1979. We, therefore, answer the question proposed in the positive.
S.A.K/C-1/Isl.Question answered in positive.