QAISAR ABBAS VS MEMBER (TAXES) BOR, PUNJAB, 2016 PTD-LAHORE-HIGH-COURT-LAHORE 910 (2015)

(a) Interpretation of statutes---

----Fiscal statute---Retrospective effect---Principle---Tax statute operates prospectively and not retrospectively unless clearly intended---Where the legislative intent is clearly provided to give retrospective effect to a statutory provision, tax can apply with retrospective effect.

Zila Council, Sialkot through Administrator v. Abdul Ghani Proprietor Iqbal Brothers, Sialkot and others PLD 2004 SC 425 and Muhammad Ilyas v. The State 2009 SCMR 1042 rel.

(b) Punjab Agricultural Income Tax Act (I of 1997)---

----Ss.3-B & 7---Punjab Agricultural Income Tax Rules, 2001, R.14---Agricultural income tax, charging of---Procedure---Retrospective effect---Petitioners were landowners and they were aggrieved of notices issued by authorities for recovery of agricultural income tax for assessment years 2012 and 2013, whereas the provision was applicable to assessment year beginning from 1-7-2014---Validity---Purpose of S. 3-B of Punjab Agricultural Income Tax Act, 1997, was to ensure that agricultural income was paid, at least, on the declared agricultural income---Provision of S. 3-B of Agricultural Income Tax Act, 1997, was to operate irrespective of powers provided to levy and assess tax under S. 3 of Agricultural Income Tax Act, 1997---Section 3-B of Agricultural Income Tax Act, 1997, did not override charging section but was a part of charging section which essentially required an owner to pay agricultural income tax on agricultural income he had declared---Intent of charging section to the extent of levy and assessment where agricultural income was declared in income tax return was clarified by S. 3-B of Agricultural Income Tax Act, 1997---Authorities simply declared amount of agricultural tax due over a period of one, two or three years without even showing breakup for each year---Such was contrary to the provisions of law as in the first instance under Agricultural Income Tax Act, 1997, a tax return must be filed by an owner of land chargeable to tax---Secondly there must be an assessment order for an assessment year as owner of land had a right to challenge assessment order under S. 7 of Agricultural Income Tax Act, 1997---Section 3-B, Agricultural Income Tax Act, 1997 provided that an assessment order was required as it would disclose basis of calculation of tax levied---Even if the amount was taken from income tax return of owner at the rate specified in Second Schedule, an assessment order must be issued by Collector---High Court set aside recovery notices issued by authorities, as the same were illegal and in violation of mandatory provisions of law---Constitutional petition was allowed in circumstances.

Asif Khan vice Rai Muhammad Yasin, Malik Ejaz Ahmad Phulerwan, Rai Akhtar Suleman, Muhammad Nasir Khan, Mian Haseeb ul Hassan, Abdul Waheed Halib, Masood Ahmed, Ghulam Murtaza, Muhammad Bilal Pervaiz, Khan Muhammad Vehniwal, Rana Muhammad Afza, Imtiaz Hussain Khan Baloch, Saeed Akhtar Khan, Ch. Muhammad Pervaiz Jatala, Imran Maiken, Gul Shah, Muhammad Mohsin Virk, Rana Rashid Akram Khan, Rao Mujahid, Ishfaq Qayyum Cheema, Danish Ahmed Mukaram, Ch. Shahid Hussain, Zafar Iqbal Chohan, Abid Nazir Sial, Tariq Mahmood Ansari, M. Zafar Iqbal Mian, Malik Matee Ullah, Rai Barkhurdar Kharal, Mian Luqman, Rai Muhammad Shahbaz Bhatti for himself and vice Sh. Rasheed Ahmad, Ch. Muhammad Pervaiz Zia, Ms. Ummara Bashir, M. Arif Malhi and Khalid Mahmoud Ansari, M.A. Ghaffar ul Haq and Muhammad Waqas Latif for Petitioners.

Ch. Sultan Mahmood, AAG with Saif Ahmad Bhatti, Law Officer, BOR and Arif Mehdi, Deputy Secretary Recovery, BOR for Respondents.

Date of hearing: 26th October, 2015.

JUDGMENT

AYESHA A. MALIK J.---This common judgment decides upon the issues raised in the Writ Petitions detailed in Schedule "A", appended with the judgment.

2.The common facts in all these cases are that the Petitioners are farmers, who own agricultural land from which they derive agricultural income. Agricultural income is subject to the levy of agricultural income tax under the Agricultural Act, 1997 ("Act") and the rules framed there under namely, the Punjab Agricultural Income Rules, 2001 ("Rules"). By way of amendment in the Act, Section 3B was inserted through the Punjab Finance Act, 2013 ("Finance Act") notified on 29.06.2013. In terms of Section 1 of the Finance Act, it came into force on 01.07.2013. The Petitioners challenge the interpretation of Section 3B of the Act by the Respondents on the ground that they have sought to recover agricultural income tax with retrospective effect from the Petitioners. The other ground of challenge common in all these petitions is that the Respondents seek to recover agricultural income tax without following the mandatory procedure provided under the Act as well as under the Rules.

3.The case of the Petitioners is that Section 3B of the Act came into effect on the first day of July, 2013 and would apply to the assessment year which begins from the first day of July, 2014. In these cases, the Respondents have sought to recover agricultural income tax for the assessment years 2012, 2013 and in some cases for the assessment year 2014. Learned counsel argued that "assessment year" is a defined term under the Act, which means the period of twelve months beginning on the first day of July next following the income year. In terms of the definition, Section 3B of the Act should be applied to the assessment year beginning from 01.07.2014 and not to the assessment year of 2012 or 2013. Learned counsel further argued that in terms of the mandatory process under the Act the Respondents levy, assess and collect agricultural income tax for a given assessment year. However, in these cases, they have not levied or assessed agricultural income tax but instead have issued recovery notices demanding the recovery of agricultural income tax. They argued that there is no assessment order and no explanation as to the manner in which the tax has been calculated. In some cases the period over which the amount has been calculated has not been disclosed. Learned counsel argued that the recovery notices all follow the same template and simply provide that the given tax is recoverable for the years 2012, 2013 and 2014. However, no detail has been provided as to the manner in which the amount has been calculated nor any details have been given for each assessment year. Learned counsel argued that by failing to issue an assessment order the Petitioners have been deprived of their right to challenge the assessment order under Section 7 of the Act as the Respondents have resorted to direct recovery without following due process. Learned counsel argued that the due process is provided under the Rules such that the Respondents have to issue an assessment order for a particular assessing year and in the event of non-filing of the agricultural income tax return under the Act the Respondents are required to issue notices to the Petitioner to furnish the return for the assessment year before any demand can be raised.

4.Report and para wise comments have been filed by the Respondents. Learned Law Officer argued that the levy of agricultural income tax has been directly linked with the declaration made for agricultural income in the income tax return filed by the taxpayer. Section 3B of the Act allows the Respondents to recover agricultural income tax at the rate prescribed in the first schedule under the Act on the basis of the income declared as agricultural income in the returns filed under the Income Tax Ordinance, 2001 ("Ordinance"). He further argued that on the basis of Rule 14 of the Rules when any agricultural income chargeable to tax under the Act has escaped assessment, the amount due to the Respondents become payable and no proceeding is required to be followed as the rate of tax per acre has been provided for in the first schedule and it is applied to the amount declared in the income tax returns. He further argued that so far as the issue of retrospective application is concerned, Rule 14(3) of the Rules allows the Respondents to recover all amounts due within a period of two years from which the total agricultural income was first assessable. In these cases, the Respondents are seeking to recover the amount due to the Respondents from the year 2012 onwards, which is within the two year limit. He further argued that most of the Petitioners have not filed their agricultural tax returns under the Act and have failed to pay the required tax, hence these amounts stand due and payable from the Petitioners immediately.

5.The first question before this Court is with respect to the applicability of Section 3B of the Act. The Respondents are seeking to recover agricultural income tax for the assessment years 2012, 2013 and 2014. Notices were issued under Rule 14 of the Rules, which require the Petitioners to produce proof of payment of agricultural income within 15 days and in the event of failure the Respondents shall assess the tax payable under Rule 14 of the Rules. In terms of what has been argued on behalf of the Respondents, the notices under challenge were issued pursuant to the insertion of Section 3B of the Act through the Finance Act. The amendment reads as follows:--

"Amendment in Act 1 of 1997.---In the Punjab Agricultural Income Tax Act 1997 (1 of 1997), after Section 3A, the following section shall be inserted:--

3B. Tax on the basis of income tax return.- Notwithstanding the provisions of Section 3, where any person has declared agricultural income for any assessment year in the return filed under the Income Tax Ordinance, 2001 (XLIX of 2001), the person shall pay the tax on such income at the rate specified in the Second Schedule." (Emphasis supplied (sic))

The notification is dated 29.06.2013 and the Act came into force on 01.07.2013. The question that arises is whether the Respondents can recover agricultural income tax on the strength of Section 3B of the Act for the assessment years 2012, 2013 and 2014 given that it came into effect on 01.07.2013. A tax statute operates prospectively and not retrospectively unless clearly intended and it is only where the legislative intent is clearly provided to give retrospective effect to a statutory provision, then the tax can apply with retrospective effect. Reliance is placed on the cases titled "Zila Council, Sialkot through Administrator v. Abdul Ghani Proprietor Iqbal Brothers, Sialkot and others"(PLD 2004 SC 425) and "Muhammad Ilyas v. The State" (2009 SCMR 1042). In this case, there is no such intent. Hence the provisions of the Act will apply prospectively.

6.The Act defines "assessment year" in Section 2(ac) and income year in Section 2 (da) of the Act as follows:--

Assessment year "The period of twelve months beginning on the first day of July next following the income year".

Income year "The financial year next preceding the said assessment year."

On reading both definitions, it is clear that because Section 3B of the Act came into effect on 01.07.2013 it is applicable to the assessment year, which begins 01.07.2014 as it is the next assessment year following the income year which commenced on 01.07.2013. The Respondents have sought recovery for the assessment year starting 01.07.2012 and 01.07.2013. This tantamounts to retrospective application of Section 3B of the Act, which came into effect on 01.07.2013. Hence, recovery for the assessment years 2012 and 2013 cannot be made under Section 3B of the Act.

7.The next question is in relation to the process being followed by the Respondents to recover agricultural income tax under Section 3B of the Act. Notices under Rule 14 of the Rules were issued seeking the recovery of the tax amount within 15 days' time. The notices state the amount due and also the tax years for which the amount is due. The Respondents have not been able to explain the basis on which this amount was calculated and from where the figures were taken. They have relied upon Section 3B of the Act to urge the point that the data was taken from the income tax returns filed by the Petitioner. However, they have failed to show the data or even confirm that every Petitioner has filed a tax return. Even otherwise, Section 3B of the Act does not allow the Respondents to recover agricultural income tax against the prescribed procedure under the Act.

8.Section 3 of the Act is the charging section which provides that agricultural income tax shall be levied, assessed and collected for each tax year in respect of agricultural income of a tax year of an owner at the rate specified in the First Schedule of the Act. Under the Act, tax is assessed for each assessment year in respect of the total agricultural income of that year. Notwithstanding the levy and assessment of agricultural income tax under Section 3, Section 3B of the Act provides that where a person has declared agricultural income in his income tax return then such person must pay agricultural income tax on the agricultural income declared in the tax income return at the rate specified in the Second Schedule. The purpose of Section 3B of the Act is to ensure that agricultural income tax is paid, at least, on the declared agricultural income. Hence Section 3B of the Act operates irrespective of the powers provided to levy and assess tax under Section 3 of the Act. In this way Section 3B of the Act does not override the charging section but is a part of the charging section which essentially, requires an owner to pay agricultural income tax on the agricultural income he/she has declared. Section 3B of the Act therefore, clarifies the intent of the charging section to the extent of levy and assessment where agricultural income has been declared in the income tax return. The rest of the provisions of the Act provide the mechanism for assessment and collection of tax. Assessment and collection of the tax are provided under Section 4 of the Act. Computation for assessment is under Sections 4A and 4B of the Act but when Section 3B of the Act is applied, the computation for assessment under Sections 4A and 4B of the Act will not apply. In cases falling under Section 3B of the Act the Collector assesses tax on the declared agricultural income by applying the rate given in the Second Schedule of the Act. This amount must be paid irrespective of any computation under Sections 4A and 4B of the Act. The thrust of the Respondent's case is based on the language of Section 3B of the Act which provides that notwithstanding the provisions of Section 3, where any person has declared agricultural income for any assessment year in the return filed under the Income Tax Ordinance, 2001 (XLIX of 2001), the person shall pay the tax on such income at the rate specified in the Second Schedule. As per their understanding the requirements of levy, assessment and collection have become subservient due to the non-obstante clause of Section 3B of the Act. Section 3 of the Act is the charging section of the Act which creates the charge of the tax on agricultural income at the rate specified in the First Schedule. The tax is then assessed and collected as provided under the Act. Section 3B of the Act also creates the charge of the tax on the declared agricultural income at the rate specified. Since both the sections state the incidence of the tax, the non-obstante clause of Section 3B of the Act shall be read in the context of Section 3 of the Act. Section 3B of the Act cannot override the machinery provisions of the Act which actualizes the assessment and collection of the tax. The procedure provided under the Act and the Rules for assessment and collection of tax is mandatory and shall be applicable for the recovery of tax. This means that the owners of agricultural land even under Section 3B of the Act must file an agricultural tax return and an assessment order is mandatory because the charging section of the Act stipulates when the tax is to be charged and who is to pay the tax. The manner in which the tax is to be assessed is under Section 4 of the Act, which provides that the tax shall be assessed and collected in the prescribed manner as provided under the Rules.

9.The procedure under the Rules is that every person who is liable to pay agricultural income tax must file an agricultural tax return as per Rule 5. In terms thereof an assessee shall deliver to the Collector his/her agricultural tax return, who shall issue an acknowledgment receipt as per Form B, which shall be entered in the Register of Returns for the assessment year as per Form C. Agricultural Income Tax is based on self-assessment meaning that once a return is filed under the Act the Collector will assess the tax to be paid on the basis of the information provided in the return filed. In the event that a person does not file his/her return then Rule 6 requires the Collector of the Tehsil to issue notice in writing requiring an owner of the agricultural land to file his/her return in terms of Rule 5 within 30 days. Once the return is filed, the Collector of the Tehsil shall assess the agricultural tax of the owner for the assessment year on the basis of the return filed and determine the tax payable. In this regard, the Collector can call the assessee or require production of books of accounts as per Rules 9, 10 and 11 of the Rules. Where an assessee fails to furnish the return, Rule 12 requires the Collector to pass an assessment order to the best of his judgment. Rule 14 is related to additional assessment in circumstances where agricultural income chargeable escapes assessment or if an assessment is too low or a wrong rate has been applied. In such cases the Collector will issue notice and proceed to make the additional assessment after giving the assessee an opportunity to show cause as to why additional assessment should not be made. Sub-Rule (2) of Rule 14 provides that for the purposes of additional assessment the Collector will only proceed if he has reliable information pertaining to the reasons given in Rule 14 (1) (a) or (b) of the Rules.

10.From the aforementioned, it is clear that in order to recover agricultural tax under the Act a return must be filed and an assessment order is required. The Respondents have admittedly not passed any assessment order in any of the cases before the Court. They have relied on Section 3B of the Act and seek to recover tax on the basis of information collected from the Federal Board of Revenue ("FBR") regarding declared agricultural income in the income tax return of the Petitioners. However, even in this regard they have not been able to show the information provided by the FBR nor have they been able to clarify whether every Petitioner has filed an income tax return. The Respondents have simply declared the amount of agricultural tax due over a period of one, two or three years without even showing the breakup for each year. This is contrary to the provisions of the law. In the first instance under the Act a tax return must be filed by an owner of land chargeable to tax. Secondly, there must be an assessment order for an assessment year as the owner of land has a right to challenge the assessment order under Section 7 of the Act. With the insertion of Section 3B of the Act an assessment order is required as it will disclose the basis of the calculation of the tax levied. So even if the amount is taken from the income tax return of the owner at the rate specified in the Second Schedule, an assessment order must be issued by the Collector.

11.Therefore, these petitions are allowed and the impugned recovery notices issued by the Respondents are set aside being illegal and in violation of the mandatory provisions of law.

Schedule-A

Details of Writ Petitions mentioned in order dated 26.10.2015 passed in W.P. No.15628/2015

MH/Q-3/LPetition allowed.