2001 PLP (Trib (PTD)

"(i) Whether the learned Income-tax Appellate Tribunal was justified to delete the Workers' Welfare Fund charged under section 4(4) of the Workers' Welfare Fund Ordinance, 1971. (ii) Whether on proper construction of subsection (4) of section 4 of the Workers' Welfare Fund Ordinance, 1971 read with section 80C of the Income Tax Ordinance, 1979 the Tribunal was justified in upholding deletion of Workers' Welfare Fund by the Commissioner of Income-tax (Appeals) placing reliance on a judgment given on entirely different issues." The Departmental argument before us is that W:W.F. is an independent charge and the scheme of taxation under presumptive tax regime does not provide for any exemption for the same.. It is stated that it is a beneficial legislation meant for the low income group of the community and the law does not provide for any exemption to any tax payer. Further, the Department has contended that the judgment referred was given in a different circumstances and on different issues altogether. We have gone through the application filed by the Department and have also considered the arguments. Unfortunately, the assessee side is unrepresented. The matter is decided on merits. In any case, the arguments before us in favour of the assessee side are the same the basis of which we have decided this issue in favour of the assessee. Further, the finding is based upon an earlier judgment in which this issue has been decided in detail. We are not aware of as to whether the said judgment has been appealed against by the Department or not. However, for arriving at an appropriate conclusion it would be fair if we refer some of the arguments on the basis of which the judgment has been arrived at and the circumstances of the present case. The assessee in this case is a registered firm which has been assessee under section 80C in consequence of a statement filed under section 143B. The Assessing Officer while calculating tax accepted assessee contention of its being covered under the presumptive tax regime and finalized the assessment under section 80C. However, a normal order was passed for the same and W.W.F. at Rs.6,084 was charged under the provisions of the said; Act. This charge was deleted by the First Appellate Authority which has been confirmed by this Tribunal. The issue involved, therefore, is obvious. It is whether the W.W.F. is chargeable where the income finalized is covered under presumptive tax regime or not. This issue has been decided by this Tribunal through the judgment mentioned by us (supra) in the following manner:

"When all the necessary requirements and conditions contained in subsection (4) of the said Ordinance are lacking in the case of presumptive tax regime contained in section 80C of the Income Tax Ordinance coupled with the fact that under subsection (4) of section 80C of the Income Tax Ordinance a deduction or collection of tax under section 50 is deemed to be the final discharge of tax liability under the Income Tax Ordinance no further liability can be created until and unless a clear provision is made in this behalf by the legislature. We are of the opinion that the legislature never intended to saddle an assessee with additional burden of workers welfare fund if income is covered under the presumptive tax regime. However, even if it is conceded for the sake of arguments that there is lacuna in law, then it is for the legislature to consider it. It is not for the Court, to remove any lacuna in law by way of interpretation and more particularly when it is bound to create additional liabilities on an assessee. It is .one of the established principles of taxation that if there is any ambiguity in law interpretation favourable 2o the assessee is to be made. For the foregoing reasons it is held that an assessee whose income is covered with the presumptive tax regime under section 80C, is not required to pay the workers welfare fund and in any case the Deputy Commissioner of Income-tax has no jurisdiction to levy the workers welfare fund because under the law he is required to charge the workers welfare fund at the time of making assessment order or as soon as thereafter as may be, and in the absence of jurisdiction to make any assessment order in respect of income covered under section 80C no such authority can be exercised. In view of above unequivocal findings we do not agree with the Department that the questions referred by it require any further dilation. Moreover, the facts in this case are not different from the facts of the referred judgment. The Question No.2 as such is basically incorrect while the finding of the Tribunal is unambiguous on the main issue posed in Question No.2, We, therefore, do nut consider these two questions fit for reference to the High Court as they do not arise out of the order of the I. T. A. T. While rejecting above reference application we have further in our mind the judgment of the Honourable Supreme Court of Pakistan reported as Lungla (Sylhet) Tea Co. Ltd. v. C.I.T. 1970 SCMR 872 wherein it has been held that it may be pointed out that it is not every question of law that must be referred to the High Court. There must be some substance in it. We are satisfied that" 'the. High Court, was perfectly justified in not calling upon the Income-talc Appellate Tribunal to refer the questions which were submitted before it." Order accordingly. C.M.A./M.A.K./85/Tax(Trib.) Reference application refused.