ALLIED BANK LTD. VS DISTRICT OFFICER (REVENUE)
2011 P T D 1442
[Lahore High Court]
Before Syed Mansoor Ali Shah, J
ALLIED BANK LTD.
Versus
DISTRICT OFFICER (REVENUE) and others
Writ Petition No.3681 of 2011, decided on 13/04/2011.
(a) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction---Scope---Alternate remedy---Adequacy, satisfactoriness and acceptability of the alternate remedy is to be gauged in every case---Alternate remedy alone is not sufficient until it is also adequate---Considerations to adjudge adequacy of the remedy enumerated.
The remedy has to be adequate to the requisite relief, i.e. the removal, or lessening of the cause of distress or anxiety; the deliverance from that which was burdensome. It is evident that the trouble, expense and delay in getting what is wanted are all as much ingredients of the sum total of that what can be described as relief as the substance of that which is wanted. Taken in this light, the adequacy of the remedy must be judged in relation to three separate considerations;
(1)the nature and extent of relief;
(2)the point of time when that relief would be available, and
(3)The conditions on which that relief would be available particularly the conditions relating to the expense and inconvenience involved in obtaining it. [p.1448] A & B
Judicial Review of Public Actions by Justice (R.) Fazal Karim, Pakistan Law House (p.963) qouted.
(b) Registration Act (XVI of 1908)---
----S. 77---Punjab Finance Act (VI of 2010), S.6(4)(b)---Constitutionof Pakistan, Arts. 199 & 23---Constitutional petition---Efficacious remedy---Refusal of Registrar to register sale-deed on the ground that capital value tax had to be paid at 2% on the recorded value of the entire immovable property in the instrument of sale---Contention of the counsel for the department was that constitutional petition was not maintainable as the petitioner had alternate remedy to institute a civil suit under S.77 of the Registration Act, 1908 against the impugned order of the Registrar---Petitioner had already paid the capital value tax besides other taxes and was entitled to an expeditious disposal of the matter, delay in registering property also impaired the fundamental right of the petitioner to property which allowed petitioner to use and enjoy his property, subject only to reasonable restrictions---No cogent reason had been given by the Registrar for the deficiency in capital value tax under S.6(4)(b) of the Punjab Finance Act, 2010---In the present case, all such factors did not qualify the filing of the suit under S.77 of the Registration Act, 1908---Constitutional petition was allowed, in circumstances.
Messrs Julian Hoshang Dinshaw Trust and others v. Income Tax Officer, Circle XVIII South Zone, Karachi and others 1992 SCMR 250; Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer, Chittagong PLD 1971 SC 205; Edulji Dinshaw Limited v. Income Tax Officer 1990 PTD 155 and Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others 2001 SCMR 209 ref.
(c) Punjab Finance Act (VI of 2010)---
----S. 6(4)(b)---Guidelines for Calculation of CVT on 'Urban Immovable Property issued by the Board of Revenue dated 7-7-2010, Illustration II(b)---Capital Value Tax for the purposes of commercial property situated in urban area, as per S.6(4)(b) of the Punjab Finance Act, 2010, has to be paid in the manner as 2% of the recorded value of the landed area (as opposed to the recorded value of the immovable property inclusive of the constructed area) plus capital value tax at the rate of Rs.10 per Sq.ft. of the constructed area---Illustration II(b) of the Guidelines for Calculation of CVT on Urban Immovable Property issued by the Board of Revenue dated 7-7-2010 is incompatible with S.6(4)(b) of the Punjab Finance Act, 2010---Principles.
Reading of S.6(4)(b) of the Punjab Finance Act, 2010 shows that commercial immovable property has been divided into two distinct categories namely; (i) Landed Area and (ii) Constructed Area. Therefore under item No.(i) in the table in S.6(4)(b) of the Punjab Finance Act, 2010,CVT is 2% of the recorded value of the Landed Area. "Landed" means "consisting of land." Item number (ii) of the table, though not applicable to the present case, helps clarify item No.(i). In case the value of the immovable property is not recorded in the instrument of sale, CVT charged is on the basis of one hundred rupeesper square feet of the landed area. Joint reading of items No.(i) and (ii) of the table shows that the emphasis is on LANDED AREA for the purposes of calculating CVT on immovable property. After this item No.(iii) adds further clarity when it charges CVT at the rate of ten rupees per square feet of the CONSTRUCTED AREA in addition to the value worked out. The term and phrase "Constructed Area" and "in addition to the value worked out" are important and make it clear that the CVT is to be charged separately for theCONSTRUCTED AREA, which is then to be added to the CVT calculated on the LANDED AREA. Therefore, immovable property for the purposes of CVT is divided into Landed Area and Constructed Area with different modes of calculation for working out the CVT. It is also incongruous to have two different modes of calculating CVT for the constructed Area. First @ 2% under item No.(i) and then @ Rs.10 per sq.ft of the constructed area under item No.(ii). This does not appeal to logic besides such discordant interpretation cannot be attributed to a taxing statute.
Illustration No.II(b) of the Guidelines, issued by the Board of Revenue dated 7-7-2010 is not in line with section 6(4)(b) of the Punjab Finance Act, 2010. By simply providing that 2% CVT is to be charged on the recorded value of the immovable property, the said Illustration fails to differentiate between LANDED AREA and CONSTRUCTED AREA as has been done by the law itself. Perusal of Illustration-II (a) Commercial Open plot where the value of the property is recorded of the same Guideline further shows that the Board of Revenue has maintained nodistinctionbetweentherecordedvalueofacommercialopenplot and that of a constructed commercial property. Illustration-II(b) of the Guidelinesdated7-7-2010is,therefore,incompatiblewithsection 6(4)(b) of the Punjab Finance Act, 2010.
CVT like any other tax cannot be charged twice on any transaction unless specifically provided by the legislature. Once while calculating 2% on the recorded value of the immovable property and then again on the constructed area at the rate of Rs. 10 per sqft. This results in doubletaxation which is not permissible unless specifically provided by the legislature. "The rule of avoidance of double taxation is merely a rule of construction; therefore, it ceases to have application when the legislature expressly enacts a law, which results in double taxation of the same income. The law so made cannot be held to be invalid merely on the ground that it results in double taxation. In the absence of a clear provisions stipulating double or multiple levies, the courts would lean in favour of avoiding double taxation.
In the present case, the intention of the legislature to tax constructed area of a commercial immoveable property twice, is not visible from the legislation, in fact it is otherwise.
CVT for the purposes of commercial immoveable property situated in urban area as per section 6(4)(b) of the Punjab Finance Act, 2010 has to be paid in the following manner;
(i)2% of the recorded value of the landed area (as opposed to the recorded value of the immovable property inclusive of the constructed area) plus
(ii)CVT attherateofRs.10persq.ftoftheconstructed area.
Black's Law Dictionary, 8th Edn. By Thomson-West p.894; Introduction of Interpretation of Statutes by Dr. Avtar Singh, reprint Edn. 2007 p.236and Municipal Council, Kota v. Delhi Cloth and General Mills Co. Ltd. AIR 2001 SC 1060 ref.
(d) Words and phrases---
----Landed---Meaning.
Black's Law Dictionary, 8th Edn. By Thomson-West p.894 ref.
(e) Interpretation of statutes---
----Double taxation---Rule of avoidance of double taxation is merely a rule of construction; therefore, it ceases to have application when the legislature expressly enacts a law, which results in double taxation of the same income---Law so made cannot be said to be a valid law merely on the ground that it results in double taxation---In the absence of clear provisions stipulating double or multiple levies, the courts would lean in favour of avoiding double taxation.
Introduction of Interpretation of Statutes by Dr. Avtar Singh, reprint Edn. 2007 p.236 qouted.
Municipal Council, Kota v. Delhi Cloth and General Mills Co. Ltd. AIR 2001 SC 1060 ref.
Syed Ali Zafar along with Talib Hussain for Petitioner.
Nayyar Abbas Rizvi, Asstt. A.-G., Punjab, Khawaja Salman Mahmood, Asstt. A.-G., Punjab and Tariq Saeed Khan, Senior Law Officer Board of Revenue, Punjab for Respondents.
Date of hearing: 13th April, 2011.
JUDGMENT
SYED MANSOOR ALI SHAH, J.---Brief facts of the case are that the petitioner bank purchased a 10 storeyed commercial building over land measuring 8-Kanals 3-Marlas and 199 sq ft, situated at Plot No.3-4, Tipu Block New Garden Town Lahore. The total covered area of the building is 3,25,308 sq ft.
2.The Sale Deed dated 2-7-2010 records the value of the immovable property i.e., the commercial building in the following manner:--
| Value of the land = 400 million Value of the structure = 1,550 million Total: = 1,950 million |
3.It is contended that the petitioner has already paid stamp duty in the sum of Rs.39 million and corporation fee in the sum of Rs.19.50 million and Capital Value Tax (CVT) under the Punjab Finance Act, 2010 in the sum of Rs.11,253,080.
4.Grievance of the petitioner is that in spite of having paid all the taxes and duties, the Deputy District Officer (Registration) Gulberg Town, Lahore refused to register the Sale-Deed of the petitioner vide impugned order dated 28-9-2010 on the pretext that CVT has to be paid @ 2% on the recorded value of the entire immovable property in the instrument of sale. Petitioner preferred an appealagainstorderdated28-9-2010 under section 72 of the Registration Act, 1908 before the District Officer(Revenue) who upheld the decision of the Deputy District Officer vide order impugned dated 6-1-2011. Both these orders have been assailed before this Court.
5.Learned counsel for the petitioner contends that the provision of CVT on immovable property provided in section 6(4)(b) of the Punjab Finance Act, 2010 ("Finance Act") has been misinterpreted by respondents Nos.1 and 2. It is contended that according to the said subsection the petitioner has paid 2% of the recorded value of the landed area in the sum of Rs.8 million (2% of Rs.400 million) and Rs.10 per square feet for the constructed area in the sum of Rs.3,253,080. Petitioner has, therefore, paid a total of Rs.11,253,080 (approx Rs.11.3 million)as CVT under the Finance Act.
6.Learned Law Officers appearing on behalf of the respondents at the very outset raised a preliminary objection that the instant petition is not maintainable as the petitioner has an alternate remedy to institute a civil suit under section 77 of the Registration Act, 1908 against the impugned order of the District Officer (Revenue) and in support of this, learned Law Officer relied on Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another (2005 SCMR 37), Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others (2001 SCMR 1493), Rana Aftab Ahmed Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066) and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 SC 969).
7.The learned Law Officers further contended that Guidelines for calculationofCVTonUrbanImmovablePropertydated7-7-2010 issuedbytheBoardofRevenue, PunjabareclearandIllustration-II(b) - Constructed Commercial Property, where the value of the property is recorded shows that 2% of the value of the immovable property as recorded in the Sale Deed is to be considered for the purposes of calculating CVT rather than just the recorded value of the landed area alone.
8.Arguments heard. Record perused.
9.Let me first address the preliminary objection emphatically raised by the law officers. It is submitted that the petitioner has an alternate remedy of filing a suit under section 77 of the Registration Act, 1908 ("Act") and hence this petition is not maintainable.
10.Section 77 of the Act provides that in case of order of refusal by the Registrar (now District Office Revenue) petitioner may file a suit challenging the same. Is filing a suit in the present circumstances of the case adequate remedy? Article 199(1) of the Constitution refers to Adequate Remedy. Adequacy, satisfactoriness and acceptability of the alternate remedy is to be gauged in every case. Alternate remedy alone is not sufficient until it is also adequate:--
"The first question in construing the meaning of 'adequate remedy', therefore, is to what has the remedy to be adequate. In the context, we think the answer must be that the remedy has to be adequate to the requisite relief, i.e. the removal, or lessening of the cause of distress or anxiety; the deliverance from that which was burdensome. It is evident that the trouble, expense and delay in getting what is wanted are all as much ingredients of the sum total of that what can be described as relief as the substance of that which is wanted. Taken in this light, the adequacy of the remedy must be judged in relation to three separate considerations....
(a)the nature and extent of relief;
(2)the point of time when that relief would be available, and
(3)The conditions on which that relief would be available particularly the conditions relating to the expense and inconvenience involved in obtaining it."1
12.The matter in hand necessitates interpretation of a taxing statute (section 6(4)(b) of the Punjab Finance Act, 2010), the instant case pertains to the levy of CVT on registration of documents entailing fiscal liability. The petitioner has already paid CVT in the sum of (approx) Rs.11.3 million besides other taxes in the sum of Rs.58.5 million (Stamp Duty and Corporation fee) and is entitled to an expeditious disposal of the matter, delay in registering property also impairs the fundamental right of the petitioner to property (Article 23) which allows the petitioner to use and enjoy his property, subject only to reasonable restrictions. Perusal of the impugned orders reveal that no cogent reason has been given for the deficiency in CVT under section 6(4)(b) of the Finance Act. All these factors do not qualify the filing of the suit under Section 77 of the Act, as an adequate remedy in the instant case. The preliminary objection raised by therespondents is therefore overruled. Reliance is placed on Messrs Julian Hoshang Dinshaw Trust and others v.Income Tax Officer, Circle XVIII South Zone, Karachi and others (1992 SCMR 250), Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer,Chittagong (PLD 1971 SC 205) and Edulji Dinshaw Limited v. Income Tax Officer (1990 PTD 155), Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others(2001 SCMR 209).
13.Moving on to the merits of the case. In order to appreciate the contention of the parties, it is important to reproduce the relevant provision of law that provides for Capital Value Tax (CVT) on the commercial immovable property of any size situated in an urban area. Section 6(4)(b) of the Punjab Finance Act, 2010 reads as under:--
| (i) | Where the value of the immovable property is recorded | Two percent of the recorded value of the landed area | Whenever ishigher |
| (ii) | Where the value of the immovable property is not recorded | One hundred rupees per square feet of the landed area | |
| (iii) | Where the immovable property is a constructed property. | Ten rupees per square feet of the constructed area in addition to the value worked out above | |
14.Reading of the above subsection shows that commercial immovable property has been divided into two distinct categories namely; (i) Landed Area and (ii) Constructed Area. Therefore under item No.(i) in the table above, CVT is 2% of the recorded value of the Landed Area. Black's Law Dictionary2 defines "Landed" to mean "consisting of land." Item number (ii) of the above table, though not applicable to the present case, helps clarify item No.(i). In case the value of the immovable property is not recorded in the instrument of sale, CVT charged is on the basis of one hundred rupeesper square feet of the landed area. Joint reading of items No.(i) and (ii) of the table above shows that the emphasis is on LANDED AREA for the purposes of calculating CVT on immovable property. After this item No.(iii) adds further clarity when it charges CVT at the rate of ten rupees per square feet of the CONSTRUCTED AREA in addition to the value worked out above. The term and phrase "Constructed Area" and "in addition to the value worked out above" are important and make it clear that the CVT is to be charged separately for theCONSTRUCTED AREA, which is then to be added to the CVT calculated on the LANDED AREA. Therefore, immovable property for the purposes of CVT is divided into Landed Area and Constructed Area with different modes of calculation for working out the CVT. It is also incongruous to have two different modes of calculating CVT for the constructed Area. First @ 2% under item No.(i) and then @ Rs.10 per sq. ft. of the constructed area under item No.(ii). This does not appeal to logic besides such discordant interpretation cannot be attributed to a taxing statute.
15.I have also gone through the Guidelines issued by the Board of Revenue dated 7-7-2010 which are reproduced hereunder for ready reference:--
Illustration No.II. (b) Constructed Commercial Property where the value of the property is recorded:
| Rate Notified by District Collector (in rupees) | Recorded value (in rupees) | Value for CVT (in rupees) | Tax (in rupees) | Constructed Area (square feet) | Tax on the constructed area | Total Tax (in rupees) |
| 8,00,000 | 8,00,000 | 8,00,000 | 16,000 | 500 | 500 x 10 = Rs.5,000 | 16,000+ 5,000 = 21,000 |
| 8,00,000 | 9,00,000 | 9,00,000 | 18,000 | 500 | 500 x 10 = Rs.5,000 | 18,000 + 5,000 = 23,000 |
16.Iamafraid,theaboveillustrationisnotinlinewithsection 6(4)(b) of the Punjab Finance Act, 2010. By simply providing that 2% CVT is to be charged on the recorded value of the immovable property, the said Illustration fails to differentiate between LANDED AREA and CONSTRUCTED AREA as has been done by the law itself. Perusal of Illustration-II (a) Commercial Open plot where the value of the property is recorded of the same Guideline further shows that the Board of Revenue has maintained no distinction between the recorded value ofacommercialopenplotandthatofaconstructed commercialproperty.Illustration-II(b)oftheGuidelinedated 7-7-2010 is, therefore, incompatible with section 6(4)(b) of the Finance Act.
17.There is another aspect of the matter. CVT like any other tax cannot be charged twice on any transaction unless specifically provided by the legislature. The impugned Orders and the argument of the learned law officers if taken at its face value would result in a purchaser of a commercial constructed immovable property to pay CVT twice on the constructed area. Once while calculating 2% on the recorded value of the immovable property and then again on the constructed area at the rate of Rs.10 per sq.ft. This results in double taxation which is not permissible unless specifically provided by the legislature. "The rule of avoidance of double taxation is merely a rule of construction; therefore, it ceases to have application when the legislature expressly enacts a law, which results in double taxation of the same income. The law so made cannot be held to be invalid merely on the ground that it results in double taxation. In the absence of a clear provision stipulating double or multiple levies, the courts would lean in favour of avoiding double taxation.3
18.In the present case the intention of the legislature to tax constructed area of a commercial immoveableproperty twice, is not visible from the legislation, in fact it is otherwise, and, therefore, this court strongly dispels interpretation put on section 6(4)(b) of the Finance Act by the respondents.
19.For the above reasons, I hold that CVT for the purposes of commercialimmoveablepropertysituatedinurbanareaaspersection 6(4)(b) of the Punjab Finance Act, 2010 has to be paid in the following manner:--
| (i) 2% of the recorded value of the landed area (as opposed to the recorded value of the immovable property inclusive of the constructed area) plus (ii) CVT at the rate of Rs.10 per sq.ft of the constructed area. |
Theimpugnedordersareagainsttheclearprovisionoflaw i.e.,section 6(4) of the Punjab Finance Act, 2010 and area, therefore, not sustainable and are hereby set aside.
20.This writ petition is allowed with no order as to costs.
M.A.K./A-111/LPetition allowed.