COMMISSIONER INLAND REVENUE VS CHICAGO METAL WORKS
2015 P T D 1913
[Lahore High Court]
Before Muhammad Farrukh Irfan Khan and Shahid Jamil Khan, JJ
COMMISSIONER INLAND REVENUE
versus
Messrs CHICAGO METAL WORKS
Tax References Nos.48, 49 of 2011 and 26 to 41 of 2009, heard on 09/02/2015.
Income Tax Ordinance (XLIX of 2001)---
----Ss. 120, 170 & 171---Refund, payment of---Procedure---Dispute was with regard to payment of additional refund---Validity---Word 'may' as used in S. 171(1) of Income Tax Ordinance, 2001, did not make filing of application for refund as optional---Word 'may' was used for applying to Commissioner for refund within two years---Option to apply for refund in two years was given for the reason that taxpayer could also opt for adjustment of refund against his future tax liability or for adjustment against demand under other taxing statutes---Word 'shall' as used in S. 171(2) of Income Tax Ordinance, 2001, not only made filing of application for refund as mandatory but application had to be in the manner and in the form as prescribed by Rules---Commissioner under S. 171(3) of Income Tax Ordinance, 2001, was to satisfy himself that tax was overpaid and he was obliged to reduce payable refund by adjusting tax payable under Income Tax Ordinance, 2001, and under other statutes---High Court declined to agree with interpretation given by Appellate Tribunal Inland Revenue and questions of law were decided in negative in favour of authorities---Reference was allowed in circumstances.
Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others PLD 2005 SC 605 ref.
Agha Muhammad Akmal Khan for Applicants (in T.Rs. Nos. 48 and 49 of 2011).
Syed Khalid Javaid Bukhari for Applicants (in T.Rs. Nos. 26 to 41 of 2009).
Mian Abdul Basit for Respondents (in T.Rs. Nos. 48 and 49 of 2011).
Date of hearing: 9th February, 2015.
JUDGMENT
SHAHID JAMIL KHAN, J.---This judgment shall also decide connected Tax References, detailed at bottom of this judgment, as common legal proposition is proposed, for expression of this court, in all reference applications filed by Department.
Appellate Tribunal Inland Revenue ("Appellate Tribunal"), in its orders under consideration, has dealt with the issue regarding additional payment for delayed refund, under Section 171 of the Income Tax Ordinance, 2001 ("Ordinance"). The issue was decided through an elaborate order dated 5-3-2009 (in most of the appeals), ratio of which was followed in subsequent orders. Appellate Tribunal concluded that refund becomes due on the date when order under Section 120 is taken to have been issued by the Commissioner, operative part from the order is reproduced for ease of reference:--
"11. Cumulative reading of above shows that in terms of section 170(4) the Commissioner is duty bound to issue refund within 45 days of receipt of application, but under section 170(3)(c), even no refund application is required, for him to refund any amount overpaid after adjustment if any. In other words, the refund in this case was "due" for the purpose of section 171(1) on the date of order treated to have been made and after lapse of three months from the said date, the compensation was due. Section 171(2) relied upon by the Department does not vitiate the right of compensation as elaborated above. The Department has failed to appreciate the fact that section 171(2) is creating a legal fiction for certain specific "refund due" in section 171(1) and "a refund shall be treated as having become due "[section 171(2)] is not synonymous. The first deals with "refund" due on happening of an event, in this case the movement order under section 120 creating refund comes into existence. In the second situation a refund shall be treated as having become due i.e. when it was not otherwise due. Had this not been the case, there was no need to provide legal fiction as elaborated in detail in earlier paragraphs."
2.Though different questions of law are framed on the legal proposition, however for the sake of brevity following representative questions are being considered to answer the proposition of law:--
"(1)Whether on the facts and in the circumstances of the case, learned Tribunal was justified to dismiss departmental appeal and hold that refund becomes due on the date of deemed assessment under section 120 of the Income Tax Ordinance, 2001 for the purpose of additional payment for delayed refund?
(2)Whether on the facts and in the circumstances of the case learned Tribunal was justified to hold that application for refund under section 170(4) is not obligatory while interpreting the word "may" in subsection (1) of section 170 of the Income Tax Ordinance, 2001?
(3)Whether on the facts and in the circumstances of the case, the learned Tribunal was justified to ignore the provisions of clause (c) of subsection (2) of section 171 of the Income Tax Ordinance, 2001 which provides that a refund shall be treated as having become due on the date the refund order is made?"
3.Agha Muhammad Akmal Khan, Advocate for applicants (in some of the cases), submitted that, besides being in clear violation of express provisions contained in Section 171(2)(c), the order of Appellate Tribunal is oblivious of Scheme under the Ordinance. He argued that filing of an application, under Section 170, for issuance of refund is mandatory; Refund could be issued, only on Commissioner's satisfaction that tax to be refunded was overpaid.
Syed Khalid Javaid Bukhari Advocate, arguing for applicants in connected Tax References, added that refund claimed in a return is always subject to certain verifications and has to be issued through an order within stipulated time.
4.Mian Abdul Basit, Advocate for respondents opposed the arguments, reiterating the reasons given by Appellate Tribunal. He submitted that word "may" is used in subsection (1) of Section 170 of the Ordinance, which makes the application for refund as optional. He emphasized that the order under Section 120 is an order for all purposes of the Ordinance including issuance of refund.
Respondents, in some of the Reference Applications, had been proceeded ex-parte through order dated 21-1-2014.
5.Office had raised objection of limitation for maintainability of some References Applications.
Syed Khalid Javaid Bukhari, Advocate appearing for applicants in T.Rs. Nos. 26 to 41 of 2009 has explained that References were not being entertained in summer vacations for the year 2009, therefore, these were filed on 14-9-2009, which was first working day, because 13-9-2009 was Sunday. The assertion made by learned counsel is verifiable from the facts given in office report, hence the objection regarding limitation is overruled.
6.Heard learned counsel for the parties, record perused.
7.To answer the questions of law, examination of different provisions of the Ordinance, in backdrop of its scheme is necessary. Moot point is determination of 'date of refund due' for the purpose of calculating 'additional payment of delayed refund', which is dealt with under provisions of section 171 of the Ordinance. It is reproduced for ease to examine:-
"171. Additional payment for delayed refunds.---(1) Where a refund due to a taxpayer is not paid within three months of the date on which it becomes due, the Commissioner shall pay to the taxpayer a further amount by way of compensation at the rate of fifteen per annum of the amount of the refund computed for the period commencing at the end of the three month period and ending on the date on which it was paid:
Provided that where there is reason to believe that a person has claimed the refund which is not admissible to him, the provision regarding the payment of such additional amount shall not apply till the investigation of the claim is completed and the claim is either accepted or rejected.
(2)For the purposes of this section, a refund shall be treated as having become due--
(a)in the case of a refund required to be made in consequence of an order on an appeal to the Commissioner (Appeals), an appeal to the Appellate Tribunal, a reference to the High Court or an appeal to the Supreme Court, on the date of receipt of such order by the Commissioner; or
(b)in the case of a refund required to be made as a consequence of a revision order under section 122A, on the date the order is made by the Commissioner; or
(c)in any other case, on the date the refund order is made.
Explanation.---For the removal of doubt, it is clarified that where a refund order is made on an application under sub-section(1) of section 170, for the purpose of compensation, the refund becomes due from the date refund order is made and not from the date the assessment of income treated to have been made by the Commissioner under section 120.
(emphasis supplied)
Perusal of subsection (1) tells that a refund, under the Ordinance, is required to be paid within three months from the date it becomes due. If due refund is not paid within three months, clock for 'additional payment of delayed refund', at the rate of 15% per annum, shall start ticking and would stop on the date of its payment. However its proviso, which has overriding effect, says that where there is reason to believe that the refund claimed by taxpayer is not admissible to him, the time shall not start running after three months unless investigation of the claim is completed and claim is either accepted or rejected.
In other words refund does not become due merely on its claim in the return or on filing of application for refund, if Commissioner believes, for reasons, that it is not admissible as claimed. The proviso has stirred up some questions and led to some confusion as well. However, one of the questions has been answered by Explanation (added to this section through Finance Act, 2013) which says that refund shall not become due on the date when assessment order under section 120 shall be taken as passed by Commissioner. It appears that the Explanation was inserted to nullify the effect of decisions under discussion. Nevertheless, it would lead to another legal question, 'whether Explanation would be applicable retrospectively or prospectively'. We shall deal with this question and confusion in latter part of this judgment.
Subsection (2) of Section 171 envisages three eventualities when refund shall be treated as having become due. First, when a dispute between the taxpayer and department is resolved in appeal and refund becomes payable as a consequence; the date when such order is received by Commissioner. Second; on the date of order by Commissioner passed under section 122A. Third situation is general in nature, it deals with remaining eventualities like; when order under section 120 is taken as issued by the Commissioner and it is not subjected to appeal or revision. In such case, the important words used by Legislature in clause (c) to subsection (2) of section 171, i.e., 'on the date the refund order is made', would clinch the controversy. Making of an order necessarily requires conscious application of mind and is to be related to the words, 'reason to believe' that claimed refund is not admissible. It is important to point out that, under scheme of the Ordinance, a complete return filed is taken as an assessment order issued by Commissioner, through operation of law and without application of mind.
A glance on relevant part of section 120 has become necessary here, which is reproduced:--
"120. Assessments.---(1) Where a taxpayer has furnished a complete return of income (other than a revised return under subsection (6) of section 114) for a tax year ending on or after the 1st day of July, 2002,--
(a)the Commissioner shall be taken to have made an assessment of taxable income for that tax year, and the tax due thereon, equal to those respective amounts specified in the return; and
(b)the return shall be taken for all purposes of this Ordinance to be an assessment order issued to the taxpayer by the Commissioner on the day the return was furnished.
(emphasis supplied)
The emphasized parts of section 120 reveal that assessment, under this section, is taken to have been made of 'tax due' and not of 'refund due'. Whatever is declared and concluded as 'taxable income' in a complete return is taken as order made by Commissioner, without application of his mind. In fact this order, by operation of law, is passed without even a glance by Commissioner on the return, in physical or digital form. Tax due is calculated as per applicable rate of tax after arriving at 'taxable income' as defined in section 9 of the Ordinance. Such declarations, under scheme of the Ordinance, are to be subjected to verification through audit under sections 177 and 214C. In case the declarations are not supported by evidence, the assessment can be amended and further amended under section 122, after due process under the Ordinance. It is the basic duty and prerogative of 'the State', as contained in Article 7 of the Constitution of Pakistan 1973, to impose tax. It is corresponding duty/obligation of every citizen to pay tax as required under the law, which he cannot and should not escape.
However, receivable refund is mentioned in one of the columns in the Form of Return. Since no sanctity of order is attached, under section 120, to declaration of receivable refund under this column, therefore, it cannot be said to be a 'refund order made' or 'refund due'. The amount of tax paid becomes excess for more than one reason; if a taxpayer is under statutory obligation to pay advance tax periodically on the basis of last year's assessed income or due to withholding tax regime. The receivable refund, as per column in return, is subject to certain verifications; if claim of excess tax is on account of withholdings, Commissioner has to satisfy himself that the withheld tax was deposited in National Exchequer by the payer. Commissioner is also empowered, under the Ordinance, to adjust any other tax payable under certain taxing statutes like Sales Tax Act, 1990, Federal Excise Act, 2005 or Duty under Customs Act, 1969.
A collective reading of the provisions would reveal that even in absence of the Explanation, inserted in section 171 by Finance Act, 2013, refund could not be treated as due on issuance of order, under Section 120, by Commissioner through operation of law. The Explanation; being declaratory in nature, shall apply retrospectively. Reliance, for this finding, can be placed on Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others (PLD 2005 SC 605).
8.For the reasons discussed ibid, a procedure for claiming refund is provided under section 170 of the Ordinance. It is expedient to examine the provisions of this section also to answer the questions under discussion. Relevant parts are reproduced:--
"170. Refunds.---(1) A taxpayer who has paid tax in excess of the amount which the taxpayer is properly chargeable under this Ordinance may apply to the Commissioner for a refund of the excess.
(1A) ..
(2) An application for a refund under subsection (1) shall be--
(a)made in the prescribed form;
(b)verified in the prescribed manner; and
(c)made within two years of the later of--
(i)the date on which the Commissioner has issued the assessment order to the taxpayer for the tax year to which the refund application relates; or
(ii)the date on which the tax was paid.
(3)Where the Commissioner is satisfied that tax has been overpaid, the Commissioner shall--
(a)apply the excess in reduction of any other tax due from the taxpayer under this Ordinance;
(b)apply the balance of the excess, if any, in reduction of any outstanding liability of the taxpayer to pay other taxes; and
(c)refund the remainder, if any, to the taxpayer.
(4)The Commissioner shall, within sixty days of receipt of a refund application under subsection (1), serve on the person applying for the refund an order in writing of the decision after providing the taxpayer an opportunity of being heard.
(5)A person aggrieved by--
(a)an order passed under subsection (4); or
(b)the failure of the Commissioner to pass an order under subsection (4) within the time specified in that subsection,
may prefer an appeal under Part III of this Chapter."
(emphasis supplied)
Examination of provisions, contained in Section 170, has itself answered the confusions noted supra. The proviso to subsection (1) of Section 171 is required to be read with Section 170. After collective reading of these provisions, we are not convinced by the arguments of learned counsel for the respondents that word "may" used in subsection (1) of Section 171 makes filing of application for refund as optional. The word "may" is used for applying to the Commissioner for refund within two years. It appears that option to apply for refund in two years is given for the reason that taxpayer can also opt for adjustment of refund against his future tax liability or for adjustment against demand under other taxing statutes. The word "shall" used in subsection (2) not only makes filing of application for refund as mandatory but the application has to be in the manner and in the Form as prescribed by the Rules. It is incumbent upon the Commissioner, under subsection (3), to satisfy himself that tax was overpaid and he is obliged to reduce the payable refund by adjusting the tax payable under this Ordinance and under other statutes.
Nevertheless, the Commissioner is bound under subsection (4), to make a refund order within sixty days from receipt of application for refund. His inaction is made appealable under subsection (5). In our opinion, on expiration of sixty days, a negative order is presumed to have been passed. In case appeal is accepted, against the inaction, and refund is determined by Appellate Court, the refund shall be taken as due on the date when sixty days expired from receipt of application for refund. Courts would not allow the department to take advantage of its own inaction within the stipulated period of sixty days.
9.For the reasons discussed above, we do not agree with the interpretation and decision given by Appellate Tribunal. Our answer to the questions of law, supra, is in "Negative" i.e., in favour of applicant department.
10.Office shall send a copy of this judgment under seal of the Court to the Appellate Tribunal Inland Revenue as per Section 133(5) of the Income Tax Ordinance, 2001.
11.For the reasons given in this judgment, the applications, detailed hereunder, are also decided in favour of the department in same terms;
PTR No.49 of 2011 and P.T.Rs. Nos. 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41 of 2009.
MH/C-17/LReference allowed.