M/S. Prosperity Weaving Mills (Pvt.) Ltd. And Other. vs Commissioner Of
This matter concerns the legality of withholding tax deductions by the National Savings Organization on profits from various investment schemes. The core legal question was whether the Revenue could levy withholding tax on these profits based on Rule 9 of Finance Division Notification S.R.O. 100(I)/93, despite statutory exemption clauses. The High Court had previously ruled that the deductions were unjustified, finding that a collective reading of the Income Tax Ordinance, 1979 and the Income Tax Ordinance, 2001, as amended by the Finance Act, 2003, granted a continuous tax exemption for investments made on or before June 30, 2001. The Supreme Court upheld this decision, holding that the statutory exemption provided by the legislature cannot be overridden, withdrawn, or restricted by a sub-legislative instrument like the Notification. The Court affirmed that the exemption for investments made before the specified cutoff date remained intact and could not be negated by the Revenue's reliance on the Notification. Consequently, the appeals were dismissed, confirming that the statutory provisions prevail over conflicting sub-legislative administrative rules.
- Can a sub-legislative instrument like a notification override a statutory tax exemption?
- Does the Income Tax Ordinance 2001 preserve the tax exemption status of investments made under the Income Tax Ordinance 1979?
- Is the yield from National Savings Schemes investments made on or before June 30, 2001, exempt from withholding tax?
- Clause 77-C, Part I, Second Schedule, Income Tax Ordinance 1979
- Clause 77-C(A), Part I, Second Schedule, Income Tax Ordinance 1979
- Section 239(14), Income Tax Ordinance 2001
- Rule 9, Finance Division Notification S.R.O. 100(I)/93
MR. JUSTICE MIAN SAQIB NISAR.-(1). 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-1 Second Schedule to the same Ordinance vide S.R.O. 1343(I)/99 dated 16-12-1999 and especially while relying upon sub-section (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, 200I 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/petitioners, 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 upo. 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 that 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. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.