P L D 2012 Lahore 103 (PLP)

IJAZ UL AHSAN, J.

The petitioner assails notice dated 11-3-2010 issued by respondent N7.2 directing the petitioner to submit documents for the assessment and finalization of its case relating to payment of professional tax. The petitioner is a company registered under the Companies Ordinance, 1984. Its factory and registered officesare situated at Karachi in the Province of Sindh. The petitioner has a sales office at 42-Zafar Ali Road, Lahore. The assessment of the professional tax with regard to the aforesaid sales office of the petitioner at Lahore is assailed through this Constitutional petition with the prayer that the notice dated 11-3-2010 be declared illegal, without lawful authority and of no legal effect.

2. The learned counsel for the petitioner submits that the petitioner being a body corporate and having its registered office in the Province of Sindh, where it is paying professional tax, the Province of Punjab is not competent to levy professional tax on the petitioner on the basis that a sales office of the petitioner is situated within the Province of Punjab. He further submits that the professions' tax cannot be levied by provinces in view of the fact that the Federation, by virtue of an entry in the federal legislative list, has the exclusive jurisdiction to levy tax on corpdration.

3. The respondents have contested the petition. The learned Addl. Advocate General has defended the aforesaid notice as well as right of the Province of Punjab to levy professional tax. In this regard he has drawn my attention to a judgment of the Hon'ble Supreme Court of Pakistan reported as Province of Punjab through Secretary, Excise and Taxation, Government of Punjab and others v. Sargodha Textile Mills Ltd.?????????? Sargodha and others? (PLD 2005 SC 988). Further my attention has also been drawn to a judgment of this Court rendered in Writ Petition No.5692 of 2009 on 3-6-2009, in which this Court has given a finding that the Province of Punjab has the power to levy and collect professional tax.

4. I have considered the respective contentions of the learned counsel for the petitioner as well as the learned, Addl. Advocate General.

5. A perusal of the judgment of the Hon'ble Supreme Court of Pakistan in the case of Sargodha Textile Mills Ltd. ibid clearly establishes the right of the provinces to impose and collect professional tax. It has categorically been stated that "There is no doubt that it falls within the legislative competence of the Provincial Assembly to levy ' professional tax". In this regard following paragraphs of the judgment of the Hon'ble Supreme Court of Pakistan being relevant are reproduced below:-- "In our view, exception can be taken to the validity of levy and collection of the professional tax on companies under the Second Schedule of 1977 Act as substituted by the Punjab Finance Act No.IX. of 1999 and the Punjab Finance Ordinance, 2000, which is quite consistent with the provisions of the Professions Tax Limitation Act No.XX of 1941, as amended by the Finance Act No. VI of 1999. Both in Pakistan an? India the companies were made liable to pay the professional tax, by the provincial law, in the past as well. Even by the West Pakistan Finance Act, 1964, the companies were made liable to pay the professional tax. Generally speaking, a company is considered to be a body of persons associated for the purpose of business. It is a juristic and artificial person created under the provision is of the Companies Ordinance, 1984, possessed with certain legal rights and charged with certain legal duties. The word "person" has been defined in Article 260 of the 1973 Constitution so as "to include - any body politic or corporate ". The same is the definition of "person" is found .in section 3(47) of. the West Pakistan General Clauses Act, 1.956. Therefore, the companies cannot be considered as falling outside the purview of the provincial law in the matter of imposition of professional taxes. Article 163 of the Constitution clearly postulates that the professional taxes shall not be considered as a tax on income. It was with 'a view to remove the doubt that all the Constitutional dispensations had made it clear that a provincial law imposing professional taxes would not be regarded as imposing a tax on income. " The provisions of section 3 of the Second Schedule of the Punjab Finance Act No.XV of 1977, through which the professional tax was imposed, are reproduced below for ready reference:-- "Tax on persons engaged in professions, trades, calling or employments.-(1) With effect from 1st of July, 1977, there shall be levied and collected from the persons or classes of persons mentioned in Column 2 of the Second Schedule of this Act engaged in a profession, trade, calling or employment in the Province of the Punjab a tax for each financial year at the rates mentioned in column 3 of the said Schedule " The said Act was subsequently amended from time to time and B has been the subject matter of various challenges before this Court as well as the Hon'ble Supreme Court of Pakistan. It appears that only restriction that exists on the competence of the Provincial Legislature to impose and collect professional tax is that its rate cannot exceed the limit that may be fixed by an act of Parliament/Federal Legislature. In this regard a reference may be made to Article 163 of the Constitution of Islamic Republic of Pakistan, which reads as follows: "A Provincial Assembly may by Act impose taxes, not exceeding such limits as may from time to time be fixed by Act of Parliament, on persons engaged in professions, trades, calling or employments, and no such Act of the Assembly shall be regarded as imposing a tax on income." ??????????? It is not the case of the petitioner that the tax is being levied or recovered in an amount that exceeds the maximum limit fixed by the parliament. His only grievance is that in the first place the Provincial Legislature is not competent to impose professional tax and that since the petitioner pays professional tax in the Province of Sindh it is not required to pay the said tax in Punjab. Admittedly, the petitioner is engaged in a profession, trade, calling or employment in the Province of Punjab. As such there is no bar against the Provincial Government recovering professional tax from the petitioner on account of its presence and conducting business within the Province of Punjab. The fact that it is paying professional tax to the Government of Sindh for its presence in that province is of no consequence insofar as there is neither a legal nor constitutional bar against the Provincial Government of Punjab to recover the said tax from a person engaged in profession, trade, calling or employment within its territories. I am fortified in arriving at the aforesaid conclusion by the aforesaid judgment of the Hon'ble Supreme Court of Pakistan rendered in the case of Sargodha Textile Mills supra as well as the judgment rendered by this Court in Writ Petition No.5692 of 2009. It is also noticed that the impugned notice relates only to submission? of? documents? for? assessment? and? finalization? of petitioner's case. Therefore, even otherwise, this petition is not competent. 6.???????? For the reasons recorded above, I do not find any merit in this petition. It is accordingly dismissed. S.A.K./P-12/L???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.