DEPUTY COLLECTOR OF CUSTOMS, RAILWAY STATION, LAHORE vs Messrs
This petition for leave to appeal arises from a judgment of the Lahore High Court which accepted the respondents' writ petition and held that the inclusion of sales tax for the assessment of income tax was invalid. The core legal question was whether sales tax and customs duty could be included towards the income of the importer for levying income tax under the Income Tax Ordinance, 1979. The Supreme Court observed that the Income Tax Department, through its counsel in an earlier binding precedent, had conceded that sales tax cannot be deemed to be the income of the taxpayer and subjected to income tax. Furthermore, the Customs Department merely acted as a collector for the Income Tax Department, and the Income Tax Department itself had neither contested the writ petition nor filed an appeal against the impugned judgment. The Supreme Court accordingly dismissed the petition and refused leave to appeal, affirming that sales tax does not form part of assessable income.
- Whether the amount paid as sales tax can be deemed to be the income of an importer for the purpose of levying income tax under the Income Tax Ordinance, 1979?
- Can the Collector of Customs maintain an appeal against a judgment setting aside a tax assessment when the Income Tax Department, on whose behalf the tax was collected, has accepted the judgment?
- Section 30-C, Income Tax Ordinance 1979
SARDAR MUHAMMAD RAZA KHAN, J.---Deputy Collector of Customs, Railway Station Lahore seeks leave to appeal against the judgment, dated 16-11-2001 passed by a learned Single Judge of Lahore High Court whereby the writ petition filed by the respondents was accepted, holding, the inclusion of sales tax was not valid.
2. Briefly, the respondents imported sugar and had filed bill of entry. When the consignment reaches the port, the Customs Authorities are authorized under the law to collect income tax as well. While collecting the income tax, the Collector made the assessment on the basis of the bill of entry plus the customs duty plus the sales tax. The importer was of the view that the sales tax and the customs duty could not be included towards the income of the importer and that the same be excluded while assessing the income and levying the tax thereon.
3. The writ petition aforesaid of the respondents, through the impugned order, was decided by the learned Judge on the basis of earlier judgment delivered by the High Court in Messrs Ramma Pipe and General Mills (Pvt.) Limited v. The Federation of Pakistan (1994 PTD 848).
4. The perusal of record and specifically the judgment referred to above would indicate that Mr. Muhammad Ilyas Khan, learned counsel appearing for Income Tax Department under the instructions from the Department had conceded that while charging income tax under section 30- C of the Income Tax Ordinance, 1979 the amount paid as sales tax cannot be deemed to be the income of the petitioner and thus cannot be subjected to payment of income-tax. The circumstances of such case were similar to those of the present case and hence the High Court rightly placed reliance on 1994 PTD 848.
5. In the instant case the Authorities of Customs Department are merely collectors of tax on behalf of the Income Tax Department. The Income Tax Department has not filed any petition against the impugned judgment despite the fact that it was a party in the writ petition and was represented by the same learned counsel Mr. Muhammad Ilyas Khan, Advocate. The Collector of Customs though a party in the writ petition and never contested the matter, had never appeared and had never filed any comments.
6. In the circumstances, the petition is hereby dismissed and leavel to appeal refused.
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