2020 PLP 1700 (PTD)

Through instant Reference Application under Section 133 of the Income Tax Ordinance, 2001 ("Ordinance of 2001"), the following question of law, asserted to have arisen out of impugned order dated 18.09.2009, passed by the Income Tax Appellate Tribunal, Lahore Bench, Lahore ("Appellate Tribunal"), has been proposed for our opinion:- "Whether on the facts and circumstances of the case, the learned ITAT was justified to direct that the turnover under section 80CC should be included in the total turnover before calculating and levying the tax under section 80-D whereas Sections 80D and 80CC are non-obstinate provisions, therefore, sphere of 80D should be considered as inclusive of sphere of 80CC?"

2. Brief facts of the case are that assessment of respondent taxpayer for assessment year 2001-2002 was finalized, however, it was charged to tax separately under Sections 80D and 80CC, on local and export sales, respectively. Against this treatment, assessee approached the Commissioner (Appeals) through appeal, which was allowed and Assessing Officer was directed to recalculate the tax under Section 80D. Feeling aggrieved, applicant department filed appeal before learned Appellate Tribunal, but the same was dismissed vide order 18.08.2009, which has been impugned through instant reference application.

3. Learned counsel for the applicant could not deny that the proposed question/proposition of law has already been answered against the department by Hon'ble Supreme Court of Pakistan in Commissioner of Income Tax Legal Division, Lahore and others v. Khurshid Ahmad and others (2016 PTD 1393), operative part of which is reproduced hereunder:- "

7. In light of the above discussion, the aggregate of the declared turnover as defined in Section 80D of the Ordinance of 1979 from the sale of goods, rendering, giving or supplying of services or benefits or execution of contracts has to be taken into account for determining the minimum tax liability of 0.5% of the turnover. If no tax, for whatever reason, is payable/paid, then the amount worked out at the rate of 0.5% of the turnover will be the minimum tax payable. If the tax payable/paid is less than 0.5% of the turnover, then the minimum tax payable will be the difference / balance between the tax payable / paid and 0.5% of the turnover. A similar analysis will apply to section 113 of the Ordinance of 2001, where the aggregate of the taxpayer's turnover from the sale of goods, rendering of services or giving of benefits including commissions and the execution of contracts has to be taken into account in order to determine the minimum liability of 0.5% of the turnover for each tax year (or 1% of the turnover for each tax year, depending on the tax year involved; as section 113 was subsequently amended vide Finance Act, 2013 and the percentage of minimum liability prescribed therein was increased to 1%)."

4. Undeniably, the above reproduced findings of Hon'ble Supreme Court of Pakistan are squarely applicable to the lis in hand. Hence, for the reasons recorded in the judgment (supra), the proposed question is answered in Affirmative i.e., against the applicant department. Reference application is decided against the applicant department.

5. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per section 133(5) of the Income Tax Ordinance, 2001. SA/C-21/L Order accordingly.