2020 PLP 1662 (PTD)

This Reference Application under Section 133 of the Income Tax Ordinance, 2001 (the "Ordinance") has been filed by the Applicant, being dissatisfied by the order passed by the Appellate Tribunal Inland Revenue, (Headquarters Bench), Islamabad ("Appellate Tribunal") in I.T.A.No.488/IB/2018 (Tax Year 2008) dated 08.05.2019.

2. Following questions of law are pressed for our opinion in instant Reference, which are asserted to have arisen out of judgment:- (1) Whether under the facts and circumstances of the case the learned Appellate Tribunal was justified to ignore the basic legal question regarding taxability and chargeability of funds/sources to purchase property/assets in Pakistan by a Non-Resident Person? (2) Whether under the facts and circumstances of the case, the learned Appellate Tribunal was justified to ignore the legal issue that chargeability/taxability of a Non Resident person shall be governed in terms of provisions of Sections 11(6), 79(2), 101, 172(3) read with Section 111 of the Income Tax Ordinance, 2001? (3) Whether under the facts and circumstances of the case, the learned Appellate Tribunal was justified to ignore the legal issue that Double Taxation Treat cannot redundant the provision of Income Tax Ordinance, 2001 specifically Section 111 of the Income Tax Ordinance, 2001 when there is issue of seeking explanation regarding sources of investment made in purchase of property/assets by a Non Resident Person in Pakistan? (4) Whether under the facts and circumstances of the case, the learned Appellate Tribunal intentionally ignored the Rules 14, 17 and 19B of the Income Tax Rules, 2002? (5) Whether under the facts and circumstances of the case, the learned ATIR, being the "Final Fact Finding" authority under the appellate hierarchy of Inland Revenue in Pakistan, is justified to pass order under the influence of clarifications/opinion of some foreign jurisdiction on double taxation treaties? (6) Whether a discretionary relief under the appellate jurisdiction of the Appellate Tribunal Inland Revenue can be given to help retention of ill-gotten money gained by a party (Non-Resident Person buying properties in Pakistan), as supported by 2009 SCMR 19 = 2008 PTD 2019. (7) Whether in view of the admission of the Taxpayer "he had enough agricultural income to purchase this property", interpretation of Section 111 of the Income Tax Ordinance, 2001 by the learned Tribunal, has made the provisions governing taxability of concealed income as redundant, while learned Tribunal intentionally ignored the binding verdict in Civil Appeals Nos.815 to 855, 860 to 974 and others dated 08.01.2019, wherein Hon'ble Supreme Court finally declared the verdict? (8) Whether under the facts and circumstances of the case, the learned Appellate Tribunal intentionally ignore the root cause of the lis i.e., lack of evidence to explain funds/sources to purchase property/asset in Pakistan by a Non-Resident Person and whether the decision of learned Tribunal is in direct conflict with the binding verdict of Hon'ble Supreme Court of Pakistan in "Messrs Squib Pakistan (Pvt.) Ltd. v. Commissioner of Income Tax (2017 PTD 1303)?. (9) Whether the learned Appellate Tribunal has erred in fact as well as law while declaring that the Section 111 of the Income Tax Ordinance, 2001 is not attracted to Non Resident Person in the presence of double tax treaty? (10) Whether the learned Appellate Tribunal has erred in fact as well as law to issue directions to the department in the following vague and unlawful manner by overstepping the lawful jurisdiction provided under the law to the Tribunal, "the Zonal Commissioner Inland Revenue is directed to return the amount extorted". (11) Whether the learned Appellate Tribunal has wrongly and erroneously interpreted the Double Taxation Treaty and ignored the binding provisions of Income Tax Ordinance, 2001 read with Income Tax Rules, 2002? (12) Whether the interpretation of Section 111 of the Income Tax Ordinance, 2001 in case of Non-Resident Person by the learned Tribunal has made the whole income tax law redundant, which redundancy cannot be attributed to any provision promulgated by the legislature?. (13) Whether under the facts and circumstances of the case order passed by the learned Appellate Tribunal is a speaking order in terms of Section 24-A of the General Clauses Act, 1897 and binding verdicts of judiciary?.

3. Learned counsel for the Applicant has submitted that the Appellate Tribunal was not justified to delete levy of tax under Section 111 of the Income Tax Ordinance, 2001 by accepting Appeal of the Respondent, therefore, it has been prayed that the impugned order may be set-aside and the questions proposed may be answered in favour of the Applicant and against the Respondent.

4. We have heard the arguments of learned counsel for the Applicant and perused the order passed by Appellate Tribunal. The operative part thereof reads as under: "We would hold that the Appellant has centre of vital interest in France by virtue of his personal and economic interest abroad. He has his habitual abode abroad, and his income is assessed in France. According to the submission in para 5(xx) wherein the tie breaker test was applied as under on the Appellant in terms of Article 4 of the Tax Treaty between Pakistan and France and it was concluded that: a) The appellant has a permanent house in Paris, France. In order to assess his personal and economic relations, reliance is placed on the following facts i). The Appellant has a business in Paris, whereby, he is a restaurateur, carrying business through a restaurant that serve Pakistani/Indian cuisine; ii). The Appellant, in order to make payments to employees, has a bank account in France. (iii). The Appellant's family live in Paris and have lived so far several years. iv). The Appellant's French tax number is attached with his Tax Returns. v). The Appellant's children were born in France and are French citizens. vi). The client does not come to Pakistan as a routine, and even so, does not stay for long enough to establish himself as a resident of two countries. Reliance is placed on the test of "considerable time". Therefore, to suggest that Pakistan is his habitual abode would be incorrect in law and also contrary to the facts of the case. (vii). The Appellant is a naturalized French Citizen. He holds a French Passport. It was further observed which reads as follows: "The taxpayer has closer personal relations as well as substantial economic relations, to one contracting state (France), while in other state (Pakistan) he merely has an economic interest that is current (wherein the appellant has just purchased a piece of land). His centre for vital interest will be deemed to be the first contracting state i.e. France. In the case of Appellant, it is obvious to us now that the centre for vital interest for him is France and not Pakistan. Once it is established that the centre of vital interest is not Pakistan, section 111 read with section 82 of the Income Tax Ordinance, 2001 are thus superseded by, and thus quashed by Article 4 of the Bilateral Tax Treaty between Pakistan and France"

5. We observed that deletion of levy of tax has been made by the Appellate Tribunal vide impugned order after detail scrutiny of facts and discussing merits of case by invoking correct legal provisions of Income Tax Ordinance, 2001 and Article 4 of the Bilateral Tax Treaty between Pakistan and France upon applicable tie-breaker test and it was categorically held that the section 111 of the Income Tax Ordinance is not attracted to the case of the Respondent. The facts are so obvious and clear that the department's point of view appears to be as an un-necessary effort hence averments made by the learned counsel for the Applicant before us stands falsified. The deletion of levy of tax, therefore, is unexceptionable.

6. We agree with the findings of the Appellate Tribunal and see no reason to interfere with the impugned order which does not suffer from any factual or legal infirmity as the same has been passed after scrutinizing the relevant record as well as on the basis of sound reasoning.

7. Therefore, the Reference application is decided against the Applicant.

8. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 133(5) of the Ordinance. SA/C-31/L Reference dismissed.