B.P. BISCUIT FACTORY LTD., KARACHI vs WEALTH TAX OFFICER and another

' SAAD SAOOD JAN, J.---These are four appeals by special leave from the judgments, dated 29-4- 1981 and 24-1-1985, of the Sindh High Court dismissing the Constitution petitions of the appellants.

These appeals were heard together as common questions of law were raised in them.

2. The appellant in C.A 140--K of 1981 is a public company, known as M/s. B.P. Biscuit Factory Limited: It carries on the business of manufacturing bread and diverse items of confectionery. In 1975, it acquired a plot in S.I.T.E., Karachi and constructed a factory together with complementary buildings thereon. As the space available to it in the factory was in excess of its requirements, it would occasionally permit the outsiders to store their goods in its premises on payment of fee and not infrequently this facility was provided to those of its customers who for some reasons were unable to immediately remove the goods purchased by them. By two notices dated 3-5-1980 and 13-5- 1980, the Wealth Tax Office, Circular II, Karachi, called upon the appellant to furnish a return as well as the accounts, documents and other record in respect of the property held by it for letting out in order to enable him to assess the amount of wealth tax payable by it. The appellant disputed its liability to pay wealth tax and invoked the Constitutional jurisdiction of the High Court to challenge the legality of the notices. Its Constitution petition was 'dismissed by 'a Division Bench of the High Court by an order dated 29-4-1987.

3. The appellant in C.As. Nos.64-K, 65-K and 66-K all of 1985, is also a public company by the name of M/s. Ebrahim Brothers Limited. It was established in 1949 and carries on the business, inter alia, of import and export, manufacture and store keeping. In 1953, it obtained a plot of land, measuring 3500 square yards, from the Karachi Port Trust and raised some structures thereon for the purpose of its business. These comprised office buildings, warehouses for the storage of non-hazardous goods and residential accommodation for its staff including watchmen. Since in its case also, the space in its possession was in excess of its requirements, it let out part of its premises to others for storing goods on payment of license fees. The Wealth-Tax Officer, Circular-III, Karachi, held that as the appellant had leased out its property to tenants, it was 'liable to pay wealth tax. Accordingly, he assessed wealth tax in the amount of Rs,2,52,905 for the years 1979-80 and Rs,3,82,026 for the assessm ent year 1980-81. He also served demand notices upon the appellant for the assessment years 1981-82, 1982-83 and 1983-84. The appellant challenged its liability to pay wealth tax through Constitution petitions in the High Court but without any success. It has now come in appeal to this Court.

4. The wealth tax is levied under the provisions of Wealth Tax Act, 1963 (hereinafter referred to as Act). Section 3 is the charging section in the Act. It provides for the levy of an annual tax, to be called the wealth tax, on the net wealth of an assesse. According to clause (m) of section 2 of the Act, the net wealth of an assesse, in short, means the difference between his assets and the debts owed by him. The expression 'assets' has also been defined in clause (e) of section 2. In the Act, as initially 'passed, the said expression encompassed property of every description with certain exception is necessary to refer to the definition given in the Act was first enacted for, admittedly, the properties of the appellant now being subjected to the tax we.

1..Ot covered by it.

5. On 17-1-1980, the Presider mane and promulgated Ordinance II of 1980 to amend the Act. The Ordinance came into force n, once and by operation of section 1 (3) thereof it was to take effect retrospectively from 28th June, 1979. It was published in the Gazette of Pakistan on 19-1-1980.

However, in the Gazette, in section 1 (3) for the figures '1979' the figures '1980' were printed by mistake. Later, through a corrigendum published in the Gazette, the mistake was corrected. It was one of the contentions on behalf of the appellants before the High Court that the Ordinance as first published in the Gazette should be given effect and that the corrigendum which was neither issued by the President nor authenticated by the Secretary in .The Ministry of Law, should be ignored. To examine this contention the High Court sent for the relevant record from the Ministry of Law. The Ministry placed before the High Court a Photostat copy of the draft Ordinance which was signed by the President and authenticated 'by the Secretary. The copy showed that in the draft, the figures 1979' were mentioned in section 1(3). There was thus no doubt left that figures 1980' as printed in the Gazette for the figures '1979' was a typographical error. That being the position, the High Court rejected the appellants' contention that the Ordinance should be taken to have come into force with effect from 28th of June, 1980 and not from 28th of June, 1979.

6. The learned counsel appearing for the appellants has contested the correctness of the view taken by the High Court. He has reiterated his assertion that section 1 (3) of the Ordinance should be construed as first published in the Gazette and that the corrigendum later printed should be disregarded as it was not issued by the competent authority. It is difficult to accept this contention.

It is not disputed that the draft of the Ordinance which was signed by the President mentioned the figures '1979' in section 1(3). The substitution of these figures by the figures '1980' was entirely due to a printing error. It hardly needs to be added that an Ordinance is what the President makes and not what the printer chooses to publish. As the error had occurred on account of a typographical mistake, the plinters of the Gazette could .On their own issue a corrigendum without making a reference to the President or the Ministry of Law. We are therefore unable to accept the contention that the Ordinance should be taken to have come into force from the date incorrectly printed in the official Gazette.

7. Section 2 of the Ordinance amended clause (e) of section 2 of the Act by substituting the definition of the expression 'assets'. The new definition, so far as it is relevant for the disposal of these appeals, reads as follows: 'assets' includes--

(ii) in the case of a firm, an association of persons or a body of individual, whether incorporated or not, and a company, immovable property held for the purpose of the business of construction and sales, or letting out, of property."

' In support of these appeals it is contended that the assets referred to in this clause were those that were held by companies which were carrying on business of construction and that as the appellants were not carrying on any such business, their properties did not fall within its purview.

In-support of this contention reference was made to the speech of the Finance Minister which he delivered while presenting the budget for the year 1979-80'. He stated; "We are all aware of the boom in urban construction. This would have been all right had this process taken care of the housing needs of the low and middle income groups. But instead we see massive resources being diverted to luxurious plazas and palatial houses completely out of place in our present setting. I, therefore, propose to levy wealth tax of 2-1/2% on the value of urban property in the possession of each family in excess of Rs,5 laces. Since all other wealth is liable to Zakat, we had made it clear in the Zakat and Usher Order that wealth tax shall not be levied on assets paying Zakat. Thus wealth tax remains applicable only to urban and such other properties in the case of Muslims which are outside the purview of Zakat and Usher Orders and to all assets presently so taxable in the case of non-Muslims."

8. We do not think that the speech of the Finance Minister is of much help in interpreting the definition of the expression "assets". However, the definition does not seem to be very happily worded. It can be interpreted as referring to three different categories of immovable properties, to wit--

(i) immovable property held for the purpose of letting out of property,

(ii) immovable property held for the purpose of business of letting out of property, and

(iii) immovable property held for the purpose of business of construction and sale or business of construction and letting out, of property.

' There is a slight difference between properties falling in categories (i) and (ii); thus the property of an assesse who carries on business of letting out its properties will fall in category No,(ii) whereas the property of an assesse who occasionally leases out the space not immediately needed by him will fall in category No(i). The last category, that is, category No,(iii) relates to the properties of those assesses who are engaged in the business of construction of properties for the purpose either of sale or of letting out. Now, the definition as it stands worded can refer to any one of these categories. It hardly needs to be mentioned that the Act is a fiscal one as it imposes a pecuniary burden, on the citizens. According to Maxwell: "It is well-settled rule of law that all charges upon the subject must be imposed by clear and unambiguous language, because in some degree they operate as penalties: the subject is not to be taxed unless the language of the statute clearly imposes the obligation and language must not be strained in order to tax a transaction which, had the legislature thought of it, would have been covered by appropriate words."

(See Maxwell on the Interpretation of Statutes, Twelfth Edition, p.256).

' It is equally well settled that when the language of a fiscal statute is ambiguous and several interpretations of the same provision are possible, the doubt should be resolved in favor of the citizens. See Muhammad Amir Khan v. Controller of Estate Duty (PLD 1961 SC 119) and observations of Muhammad Gull, J. In West Pakistan v. Mahboob Ali (PLD 1976 SC 483). Following this principle of interpretation, we would hold that only such immovable properties as are held for the purpose of business of construction and sale or of letting them out fall within the definition. It is not the case of the Department that the immovable properties of the appellants brought to tax were being held for the purpose of business of construction and letting out. We would therefore accept these appeals and declare the notices served and assessment made upon the appellants as without lawful authority and of no legal effect. The appellants shall also have their costs in these appeals.