2005 PLP (Trib (PTD)

(c) Interpretation of Statutes

Law should be applied as it is and nothing' should be imported. 1993 SCMR 1635 ref. Naveed Andarabi for Applicant. Sheraz Mirza, D.R. for Respondent. Date of hearing: 21st August, 2004. This Miscellaneous Application has been filed on behalf of the assessee. The assessee claims that the Tribunal has omitted to give a finding on the argument that the commission income was a special income and that it was subject to special charge under rule 2-A of Part-II of the Second Schedule. The argument in respect of Misc. Application is that Assessing Officer, CIT(A) and the Tribunal all have noted without exception that the amount under discussion was commission received by the assessee. In his opinion after this unequivocal finding that it is commission the Tribunal should not have committed .to hold that special rates under the' above Clause are applicable on this income. The learned AR has argued that application at length but .he has mostly repeated the arguments which we have already discussed in our main order. Regarding his claim that how its income should have been taxed, we are in agreement with learned DR that there is no weight in the argument that the commission income is parallel to dividend income. This Tribunal has unequivocally held that commission received by an employee from its employer having clearly been defined as salary in section 16 is to be treated, as such and the rates applicable in respect of salary income are chargeable thereon. In this regard reference to sections 50(4A) and 50(5A) and the provisions of salary section is not of any help. The reduced rates are not in supersession to the main charges created and the same apply on those amounts which otherwise are not covered under some other charging provision of the Income Tax Ordinance, 1979. The circumstances in which this assessee has been held to be a part of the salary are detailed in the main order. There is therefore, no question of any exceptional treatment. The judgment referred by the learned AR 2000 PTD (Trib.) 457 has already been properly taken care of in our main order. Besides (2000) 82 Tax 36 (Trib.) is not relevant. Giving relief to a taxpayer if due is duty of the Court, however, if some one makes an attempt to cover his transaction by interpreting a provision in his. favour under the garb of a particular exemption obviously it cannot be appreciated. The exemption provisions are a facility. They are made available to only those, who come within the language of the law without any further argument or interpretation. The argument that special provision supersedes the general provision also is not applicable on the circumstances before us. The reason is obvious. The golden principle of interpretation is that law should be applied as it is and nothing should be imported. 1993 SCMR 1635 also therefore, is of no help. Our observation finds strength from the language of the provision of the Second Schedule, itself. This clause is not in supersession to the main provision. We could have agreed with learned AR if we had not held that the amount received, claimed as commission by this assessee is, in fact, salary as defined in section

16. If somebody earns commission and said commission is not covered within the charge created under the main charging provisions of the Income Tax Ordinance, 1979, he shall be assessed under section

30. The assessee in said eventuality shall not be assessed as a salaried person but on his income from other sources. We need not to dilate upon what we have already done in our order. However, since we have held that this commission is salary hence it cannot be given the treatment similar to that commission which is not covered within the definition of salary. We therefore, have no reason to agree with the learned AR that a commission having been held as salary would be entitled to the reduced rates of tax by way of the facility provided in Clause 2A of the Second Schedule. Our decision is more for the reason that we have held the usage of word "Commission" in this case is only a veil on lifting of which we have found that the transaction was salary. Be that as it may, we do not find any mistake apparent from the record of the main order and decide this Misc. Application by holding that the assessee case is not entitled to the relief given in the Second Schedule. Moreover, there is no infirmity in our order which calls for any action under the garb of rectification of mistake. Order accordingly H.B.T./332/Tax (Trib.) Application dismissed.