1981 PLP 148 (PTD)

The facts relevant to this appeal are that the appellant is a partner of Messrs United Supplier & Company, a registered firm and an assessee under the Income‑tax Act, hereinafter called the Act. The assessment year in question is 1970‑71 in which the firm was assessed to pay income‑tax on the total income determined at 1,23,029 and allocation of the partners of the firm was as under: (1) Niranjan Dey/10 Tk. 76,893 (2) Dipak Kumar Dey/6 Tk. 46,136 The assessment order was made on 22‑1‑1973. The petitioner's total income according to the assessment order dated 22‑1‑1973 was Tk. 81,

993. The petitioner was required to pay a tax of Tk. 49.399 by a demand notice under section 29 of (he Act. In the said notice a sum of Tk. 16,005 was demanded by way of additional tax without recording any order under section 18‑A of the Act. The petitioner challenged the demand of the additional tax in a writ petition under Article 102 of the Constitution before the High Court Division. The learned Judges rejected the said petition summarily holding that since no appeal was filed against the demand the petition was not main tainable. Leave was granted to examine whether additional tax demand in the notice was authorised by any of the charging sections namely, sections 3 and 55 of the Act. Mr. Rab, the learned Advocate‑on‑Record submitted that section 55 of the Act provides for charging and levying of super‑tax and as such the present additional tax admittedly does not come within section 55 of the Act. He further submitted that additional tax has not been made chargeable under section 3 which is the only other charging section. Mr. Abdus Subhan the learned Advocate on the other hand appearing for the Revenue submitted that additional tax is leviable under section 18‑A(8) and is covered by section 3 of the Act. There is no dispute that the additional tax has not been charged under section 55 of the Act. The only aspect that remains to be examined is whether the additional tax comes within the charging section 3 of the Act. Section 3 provides for charging income‑tax. Tax has been defined in section 2(14) of the Act as tax means the tax payable under this Act includes any penalty, interest fee or other charge leviable under the Act. Mr. Rab relying on the decision in the case of Commissioner of Income tax and another v. Zeenat Textile Mills Ltd. 27 D L R (A D) 85, submitted that any tax other than income‑tax levied under the Act is a tax on tax and as such is not chargeable under section 3 of the Act. In the reported case a demand on the Company was made to pay penal interest under section 18‑A of the Act and an additional tax of a certain sum under section 45‑A of the Act for having failed to pay up the demand within the time mentioned in the notice. This Division held that enactment of section 45‑A was beyond the legislative competence because it was held to be a tax on tax and not a tax on the income. Mr. Rab has argued that the additional tax demanded is not a tax on the income of the assessee but it is a tax on the assessed income‑talc itself, therefore, the demanded additional tax is a tax on tax. This contention does not hold good if the terms of section 18‑A(1) is examined. This subsection provides that except the incomes mentioned in sections 18(2) and (2‑B) others have to make advance payment of tax quarterly on the basis of the income‑tax and super‑tax payable on so much of income as is included in assessee's total income of the latest previous year in respect of which assessment has been made. The additional tax is levied for non- compliance with the provision of section 18‑A(1). The definition of tax in section 2(14) means not only the tax payable under the Act but includes certain other items such as penalty, interest, fee or other charge. The definition, however, requires that such items must be leviable under the Act. Section 18‑A(8) authorises levying of an amount which is added to tax a determined on the basis of the regular assessment for non‑compliance wit the provisions of section 18‑A in the manner laid down in subsection (6). The charging section 3 provides for charging tax within the meaning of tax and as such the additional tax as demanded cannot be said to be unauthorised by the charging section 3., The decision relied upon by Mr. Rab does not precisely support the appellant s contention. In this view the appeal is dismissed without any order as to costs. Appeal dismissed.