KH. FAROOQ SAEED, J. - This, reference application has been filed at the instance of the petitioner.
The question of law proposed which statedly arise out of the order of learned Income Tax Appellate Tribunal are as follows:--
(1) Whether under the law and circumstances of the case the learned Income Tax Appellate Tribunal was justified in confirming the tax charged under Section 80D of late Income Tax Ordinance, 1979?
(2) Whether the tax under Section 80D was chargeable for the assessment year 2000-2001 on AOP or URF etc.?
(3) Whether the amendment made through Finance Ordinance, 2001, in Section 80D by excluding the AOP and URF from levy of tax under Section 80D was curative and remedial in nature?
(4) Whether the amendment , made through Finance Ordinance, 2001, in Section SOD of repealed Ordinance, 1979, was applicable retrospectively and applied on all pending cases for the assessm ent year 2000-2001 ?
(5) Whether the applicant was entitled for relief allowed through above-mentioned amendments?.
2. Learned counsel for the petitioner while supporting the questions of law states that Section 80C was firstly introduced for limited companies. Later by virtue of an amendment individual URF and AOP were also included for the purpose of said turnover tax. Through Finance Ordinance, 2001, the said charge was again withdrawn. The charge of this tax through one Finance Act and subsequent withdrawal after two years in the opinion of the learned counsel creates the impression that it is a curative legislation. The, petitioner's case having beer decided after the charge and later withdrawal of the same on individual and AOP amounts to providing a remedy which is always retrospective. He referred various judgments decided by Supreme Court as well as this Court which inter alia hold that the curative and remedial legislation is always retrospective: The questions proposed, therefore, should be answered in his favour and the consequent charge created in this case under Section 80D during the intervention year 2000- 2001, be considered as a nullity.
Furthermore, the respondents should be directed to withdraw the same in the case of appellant.
On a question, he further argues that such a remedy can be provided both in substantial as well as procedural amendments.
3. On the other hand, learned counsel for the respondent (Ms. Shahina Akbar, Advocate) says that there is no question of any remedial or curative legislature in this case, In fiscal statutes the law is to be applied in its strict meanings and it is only in case of doubt that a favour can be made to the applicant. Referring "Messrs Star Textile Ltd. And 5 others v. Government of Sind through Secretary, Excise and Taxation Department, Sindh Secretariat, Karachi and 3 others" (2002 SCM R 356) and "Commissioner, Sindh Employees Social Securities Institution and another v. Messrs E M. Oil Mills and Industries Ltd. S.I.T.E., Karachi and 2 others" (2002 SCM R 39) she said that for the interpretation of the fiscal statute it is the language of law which is to prevail and all other methods of interpretation come only thereafter.
4. Since in the present, circumstances there was no doubt about the application of Section 800 on the individual and AOPs for the year under discussion, there is no question of adoption of any other method of interpretation. She Contends that a legislation is never considered as redundant or superfluous. Whenever, legislature intends to grant retrospective effect to a provision it so express in clear terms. She added that the amendment brought in by Finance Ordinance, 2000, under the provision of Section 80D had deleted few words from the said provision by way of the legislation which amounts to withdrawal of the charge and nothing stopped the legislature to apply the same retrospectively had it so intended.
5. The arguments of learned Legal Advisor appear to be more convincing.
6. Learned counsel for the appellant has referred some important judgments including "Commissioner of Income Tax v. Shahnawaz Ltd. And others" decided by the Honourable Supreme Court of Pakistan reported as 1993 SCM R 73, "Dreamland Cinema, Multan V. Commissioner of Income Tax, Lahore" (PLD 1997 Lah. 292) and "Dawood Cotton Mills v. Commissioner of Income Tax"
(2000 PTD 285). So far as the ratio of the referred judgment is concerned, there cannot be any cavil about the same. All remedial and curative legislations especially when they remove an ambiguity or provide a relief to cure an ill, apply on all the pending cases. However the issue under discussion is not that of removing of an ill or providing a cure or a remedy. Section 80D has created a charge on the turn over of certain persons under specific circumstances. This was earlier applicable, only on companies but subsequently, the same was made applicable to individual and AOP also. Thus, it was a specific charge for the assessment year 2000- 2001 on the turnover of individual and AOP, whose tax liability calculated as a result of determination of their total income was less than half percent of the turnover. Withdrawal of this charge for a subsequent years does not amount to cure or providing a remedy against some ill. There is, therefore, no reason in agreeing with the learned counsel for the petitioner that the withdrawal of a charge can be applied retrospectively. If the legislature in its wisdom repeal a provision or decide not to charge a tax on or after a specific date, it would not mean that it shall become a curative or a remedial law. For all practical purposes, a charging provision in a law remains operative and effective unless repealed. However, the repeal would not mean that the right or a liability accrued before the said repeal is also effected with the repealing of law. In fact Section 6 of the General Clauses Act has taken care of such like situations.
The same reads as follows:-- Section 6: Effect of repeal. - Where this Act, or any . Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not;
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) after any right, privilege, obligation or liability acquired, accrued or incurred under any.
Enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence, committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;and any such investigation, legal proceeding or remedy may be instituted,' continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or regulation had not been passed."6(sic) The result of the above discussion is obvious. There is no question of calling the withdrawal of the charge of Section 80D on Individual and Association of Persons, through the Finance Act, 2001, to be retrospective under the garb of the argument that such withdrawal is curative and retrospective.
This is a' part of substantial law which even otherwise cannot be given retrospective operation because the legislature has not shown any such intention.
7. Dismissed.