AHMAD ALI ANJUM vs DEPUTY COMMISSIONER, FAISALABAD and 6 others

ORDER

' SH. RIAZ AHMAD, J.---The petitioner has filed this petition seeking leave to appeal against the judgment and order dated 21-4-1998 whereby, while intepretaing the provisions of the Punjab Local Government Ordinance, 1979, on the subject of imposition of various taxes, it was held that the registered gift deeds in respect of immovable properties in urban areas are exempt from the tax levied by the Local Government.

2. Before proceeding further, it would be advantageous to reproduce section 137 of the Punjab Local Government Ordinance, 1979 (hereinafter called the Ordinance), which read& as under:- "Tax to be levied. ---A local council, subject to the provisions of any other law may, and if directed by the Government, shall levy all or any of the taxes enumerated in the Second Schedule."

Item No,5 in Part III of Second Schedule provides tax on the transfer of immovable property. Section 144 of the Ordinance provides as under:-- "All taxes and other charges levied by a local council shall be imposed, assessed, leased or compounded, administered and regulated in such manner as may be provided by the Rules."

' Section 167 of the Ordinance empowers framing of the rules for carrying out the objects of the Ordinance. On 23-5-1981 the Governor of the Punjab in exercise of his powers conferred upon him under section 167 read with section 137 Of the Ordinance promulgated Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981. Rules 3 and 4 deal with the imposition of tax on immovable property. Rule 9 deals with the exemption and the substituted Rule 9 promulgated on 2-6-1991 reads as under:-- "9. Exemptions.- -No tax shall be levied on the transfer of immovable property-

(a) in favour of the Federal or the Provincial Government;

(b) by Tamleek (i.e. Gift) in favour of legal heirs up to 25 acres of agricultural land in rural areas, or

(c) by exchange up to 25 acres of agricultural land in rural areas."

3. It may be stated here that the right to collect such tax was auctioned and the petitioner for a consideration of Rs,60,000,000 (six crores) was given the right to collect such tax. The grievance of the petitioner is that by abusing sub-rules (b) and (c) of rule 9, the respondents, who are entrusted with the task of registration of documents are registering the documents of gifts in respect of urban immovable property without receiving the tax to which the petitioner is entitled under the contract. The petitioner complains that through fake power of attorneys executed in favour of the legal heirs of donors the gift deeds are being registered without receipt of tax. To challenge this act of the respondents two writ petitions were filed, which have been allowed vide judgment impugned.

4. The learned Judge in the Lahore High Court construed rule 9 by holding and interpreting that since the exemption in respect of urban immovable property has not been specifically mentioned in the aforesaid rule and the exemption has only been provided in respect of agricultural land, therefore, it should be inferred that the urban immovable property is also exempt from the tax.

Prima Facie this construction seems to be not founded on the principles governing interpretation of statutes because a particular subject which does not specifically stand exempted, cannot be brought into the category of exemption by stretching the rule which does not permit such interpretation.

5. The petitioner has complained before us that petition be entertained because despite his best efforts the copying branch in the High Court is not providing a certified copy of the order impugned. Mrs. Nasira Iqbal appearing on behalf of the petitioner has stated that all attempts made to obtain the certified copy have proved to be futile as the copying branch states that the file is not available. In this view of the matter and considering the importance of the issue involved, we will dispense with the requirement of attachment of certified copy of the impugned judgment with the petition for leave to appeal. However, the petitioner is directed to place the certified copy as soon as it is made available.

6. In view of the above-stated position, we are inclined to grant leave to appeal to the petitioner. .

7. The petitioner further states that an amount of Rs,100,000,000 (ten crores) is likely to be refunded to the legal heirs, who were claiming this amount. We would direct that no such refund shall be made till disposal of the present lis. We further direct that the gift tax on the gift deeds in respect of urban immovable properties shall be collected by the Registrar/Sub-Registrars and such amount shall be kept in s separate account and the disbursement thereof would be subject to the result of this appeal.