1. Dorab Patel, J.-The question in these petitions is of the vires of Section 18-A of the Income Tax Act, 1922 (hereinafter called the said Act). The dispute in all these petitions relates to assessment years prior to the promulgation of the Finance Act, 1974, by which the definition of tax was amended and the petitioners in CPSLA Nos. 372 and 375 of 1976 were aggrieved by orders of the Income Tax Officer imposing additional tax on them under Section 18-A of the said Act, whilst the petitioners in the other two petitions were aggrieved by orders of the Income Tax Officer imposing additional tax on them under Section 45-A of the said Act. Therefore they had filed writ petitions in the Lahore High Court to challenge these orders, and it would appear that many similar petitions had been filed which had been heard by different Benches of the Lahore High Court. In the events that happened, the writ petitions under appeal were heard and dismissed by a Division Bench of Salam, J., and Zullah, J., had no hesitation in dismissing the writ petitions. But Zullah, J. Observed that he was inclined to allow the petitions, but he felt bound to dismiss them in view of the judgment of another Division Bench of the High Court reported in M. Shakel Saigol vs. I.T.O. (Companies) (PLD 1976 Lahore 616). Accordingly, as their writ petitions were dismissed, the petitioners have filed these petitions for leave.
2. Mr. Mohammad Ali Khan's first submission was that the word "tax" as defined in Section 2 (14) of the said Act, as it stood before its amendment by the Finance Act of 1974, was not wide enough to cover the levy of additional tax under Sections 18-A and 45-A and in support f this proposition he relied on a judgment of the Dacca High Court reported in Zeenat Textile Mills East Pakistan Limited vs. C.I. T. Dacca and another (PLD 1969 Dacca 673), but which had appealed to Zullah, J. However, it was this judgment which was dissented from by the Lahore High Court in M. Shakeel Saigol's case.
3. But whatever be the position, if the matter had stood here, Mr. Mohammad Ali Khan advanced a very ingenious submission on the basis of the definition of income in the said Act that the additional tax was not a levy on income, but on an entity other than income. Now, Salam, J., had rejected this argument, because he was of the view that the additional tax was only compensation to the Government for the assessee's delay in the payment of the tax due to him. Learned counsel submitted that this view was not correct, because the said Act contains express provisions for penalty, fines etc. He therefore took us through the relevant provisions of the 1962-Constitution and of the Government of India Act, 1935 and of the Indian Constitution and submitted that the additional tax recovered from the petitioners was ultra vires of the powers of the Federal Government under clause (c) of Item 43 of the Federal Legislative List in the Constitution of 1962 (which was in force at the relevant time) and that additional tax would not also fall under the residual item, 49.
4. This submission turns on the proper interpretation not only of the said Act but of the Constitution and raises a question of law of public importance. Accordingly, we would grant leave as prayed, the more so, as the judgments under appeal are one of first impression. The appeals wili be heard together and made ready on the present record with liberty to the parties to file additional documents. Security in the sum of Rs. 2,000/- in each appeal.