Messrs SAEEDULLAH KHAN vs CENTRAL BOARD OF REVENUE And Other
The petitioner, a civil contractor engaged in road, bridge, and dam construction, sought leave to appeal against the Lahore High Court's order dismissing his writ petition challenging the levy of withholding tax under section 80-C of the Income Tax Ordinance, 1979, and its increase under the Finance Act, 1995. The High Court had relied on precedent holding section 80-C to be valid legislation and that income-tax deduction applies at the rate prevalent at the time of receipt of payment. The Supreme Court considered that leave to appeal had already been granted in connected matters to examine whether imposing income-tax based solely on turnover without adjustment against actual income is a permissible exercise of legislative power under the Federal Legislative List. Consequently, the Supreme Court granted leave to appeal and issued a similar interim order keeping the previous interim arrangement in force pending the final hearing.
- Whether the imposition of income-tax on the basis of turnover alone, without an opportunity to adjust with actual income, is a permissible exercise of legislative power under the Federal Legislative List?
- Whether deduction of income-tax under section 80-C of the Income Tax Ordinance, 1979 should be at the rate prevalent at the time of the contract or at the time of receipt of payment?
- Section 80-C, Income Tax Ordinance 1979
- Section 80-CC, Income Tax Ordinance 1979
- Section 80-D, Income Tax Ordinance 1979
ORDER
AJMAL MIAN, J.---The petitioner is engaged in the construction of roads, bridges and dams as a civil contractor. He has filed the present petition for leave to appeal against the order dated 23-12- 1996 of a learned Single Judge of the Lahore High Court passed in Writ Petition No.23794 of 1996, filed by the petitioner against the levy of withholding tax at the rate of 3 % under section 80-C of the Income Tax Ordinance, 1979, (hereinafter referred to as the Ordinance), and its increase to 5 % under the Finance Act, 1995, dismissing the same on the ground that a Division Bench of the above High Court in the case of Messrs Aisha Spinning Mills Ltd. v. Federation of Pakistan and 2 others (1995 PTD 493) has held that section 80-C of the Ordinance was a valid legislation and in Writ Petition No.5501 of 1996 and seven other connected writ petitions, a learned Single Judge of the said High Court has also held that deduction of income-tax under section 80-C of the Ordinance shall be at the rate which was prevalent at the the of receipt of payment and not on the dates of the contract under which these payments were made. The petitioner has, therefore, filed the present petition for leave to appeal.
2. In support of the above petition Ch. Mushtaq Ahmad Khan, learned counsel for the petitioner, has produced the copies of the leave granting orders in a number of petitions for leave to appeal. The main order was passed in Civil Petitions Nos.234, 235, 241, 244, 252, 255, 274, 275 and 279-L of 1995, wherein leave was granted as under:-- "Leave to appeal is granted to consider whether the imposition of income-tax on the basis of 'turn over' alone, without giving an opportunity to tax subsequently adjusted with reference to his actual income, is a permissible exercise of legislative power of taxation as enjoyed by the Federal Legislature in pursuance of Item No.47 of the Federal Legislative List, Part I, of the Constitution (Fourth Schedule).
2. As the question raised will have bearing upon the validity of sections 80-C, 80-CC and 80-D, Income Tax Ordinance, and need construction of the Constitution notice be issued to the Attorney- --General as required by Rule 1, Order XXVII, Civil Procedure Code.
3. During the pendency of the appeals the interim order already made will remain in force.
4. As the appeals involve the finance of the Federal Government these should be heard at an early date."
The above order was followed in the subsequent petitions for leave to appeal.
3. We, accordingly, grant leave to appeal in the above petition and pass interim order as above.