COMMISSIONER OF INCOME TAX, LAHORE VS PROSPERITY WEAVING MILLS (PVT.) LTD., 2011 PTD-SUPREME-COURT 159 (2010)

(On appeal from the judgment dated 26-9-2005 passed by the Lahore High Court, Lahore in W.Ps. Nos. 1803, 4993, 5486, 6183 of 2004, 18903 of 2005 respectively).

Income Tax Ordinance (XXXI of 1979)---

----Second Sched. Part-I, Cls. 77-C & 77-C(A)---Income Tax Ordinance (XLIX of 2001), S. 239(14)---S.R.D. 100(1)/93, dated 2-2-1993, R.9---National Saving Schemes---Exemption from deduction of withholding tax on profits paid in said schemes---Scope---Exemption has been extended to all kinds of investments made in the National Saving Schemes, which continued on the enforcement of Income Tax Ordinance, 2001 by virtue of its S.239(14), which saved the application and continuity of Cl.77-C, of Part-I of Second Schedule of the Income Tax Ordinance, 1979---Only restriction which remained in force was that said exemption, shall be available on the yield of the investments made on or before 30-6-2001---When the exemption was available to the investments of National Saving Schemes under the express provisions of law, such exemption could not be snatched, withdrawn or taken away by a sub-legislative instrument of the Federal Government, which might have been issued in the garb of interpreting the provision of any law.

Muhammad Ilyas Khan, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Appellants (in all cases).

Saghir Ahsan Farooqui, NSO for the Applicants (in C.M.A. Nos.2398 to 2401 of 2009).

Siraj Khalid, Advocate Supreme Court and Dr. Ikram-ul-Haq, Advocate Supreme Court for Respondents.

Date of hearing: 26th October, 2010.

JUDGMENT

MIAN SAQIB NISAR, J.---In the noted matters common questions of law and the facts are involved therefore, these are being disposed of through this single judgment.

2. The facts of the cases are that the respondents/writ petitioners had invested in various schemes of the National Savings Organization (hereinafter called the Organization). The Organization, on the basis of Rule 9 of Finance Division Notification S.R.O.100(I)/93 dated 2nd February, 1993 (hereinafter referred to as the Notification) as an agent of the Income Tax Department, (the Revenue) contemplated to deduct the withholding tax from the profits paid in these schemes at the rate of 10%. The respondents assailed the action in the constitutional jurisdiction of the High Court. The appellant (the Revenue) contested the matters by filing parawise comments, in which the deduction of withholding tax was defended as legally justified on the basis of the Notification (S.R.O. 100(I)/93).

3. The High Court while analyzing the genesis and development of law which took place in the realm of the exemption granted on the investments made in the National Saving Schemes, particularly by mentioning clause 77-C of-Part (I) of Schedule (2), Ordinance, 1979; clause 77-C(A) inserted in Part-I Second Schedule to the same Ordinance vide S.R.O. 1343(I)/99 dated 16-12-1999 and especially while relying upon subsection (14) of section 239 of the Income Tax Ordinance, 2001 as remolded by Finance Act, 2003 came to the conclusion that:--

"I am of the view that the deduction of withholding tax on the profits earned by the petitioners on various National Savings Schemes by reference to rule 9 of the aforesaid notification is not justified on the face of it. A collective reading of the exemption clauses as contained in the late Income Tax Ordinance, 1979 as well as the Ordinance, 2001 as amended by Finance Act, 2003 supports the case of the petitioners. A yield from National Savings Schemes of respondents/Directorate of National Savings enjoys exemption where investment was made on or before 30th June, 2001".

It is further held that:--

"The exemption clauses contained in the Second Schedule to the late Income Tax Ordinance 1979 as also the similar clauses in the schedule to the Income Tax Ordinance, 2001 make it clear that a continuous exemption from levy of income tax is available to the recipients of the profit/interest/income to various schemes of the National Savings Organization."

4. Leave to appeal in these cases (C.As. Nos. 640 to 643 of 2006) was granted vide order dated 20-4-2006 in the following terms:--

"Leave to appeal is granted to inter alia examine whether the Income Tax is exempted on the regular income certificates scheme issued by the National Saving Organization after 1993 except those schemes which are covered under the Mahana Amadani Scheme meant for pensioners, widows, senior citizens etc."

5. Mr. Muhammad Ilyas Khan, learned counsel for the appellants/ petitioner, has also made extensive reference to the historical context of the exemption granted from time to time on such investment schemes by specifying various provisions of the statutes i.e. Income Tax Ordinance 1979 and Income Tax Ordinance 2001 and has finally submitted that on account of the Notification, exemption was not available to all such schemes rather, it was restricted only to Mahana Amadani Scheme and that too for the profit not exceeding Rs.1,000 per month, besides to those which find mention in the leave granting order of this court. We are afraid that the reference to the historical backdrop is of no avail to the case of the appellants/petitioner, rather on the contrary clause 77-C which formed part (1) of Second Schedule of 1979, in clear and unambiguous terms extended the exemption to all kinds of the investments made in the National Saving Scheme; which (exemption) undoubtedly was continued on the enforcement of Income Tax Ordinance, 2001 by virtue of subsection (14) of section 239, which saved the application and continuity of clause 77-C ibid, as was remolded thereafter by Finance Act, 2003, however the only restriction which remained in force was that said exemption shall be available on the yield of the investments made on or before 30th June, 2001. When questioned, learned counsel for the appellants/petitioner, has not disputed that all the investments relate to the period prior to the noted date. As regards reliance upon the Notification is concerned, suffice it to say that when the exemption is available to the investments of National Saving Schemes under the express provisions of law which have been aptly relied upon by the High Court, such exemption cannot be snatched, withdrawn or taken away by a sub-legislative instrument of the Federal Government, which may even have been issued in the garb of interpreting the provision of any law, resultantly, no valid plea for non-exemption can be structured by the appellant (revenue) on the basis of the Notification. Therefore, in all these matters, we are not impressed if the High Court while rendering impugned decision has committed, any error of law or fact calling for interference by this Court. These appeals and the Petition No. 1001-L of 2006 therefore have no merits and are hereby dismissed. Accordingly C.M.As Nos. 2398 upto 2401 of 2009 are also declined.

M.A.K./C-9/SCPetition dismissed.