' EJAZ AFZAL KHAN, C.J.---By this single judgment, we propose to decide W.P. Nos.1982 of 2006, 742 and 1107 of 2007, 950 of 2008 and 188 of 2009, as the petitioners therein seek to question the imposition of professional tax.
2. The learned counsel appearing on behalf of the petitioners contended that where the petitioners being the companies with their Head Offices at Karachi, Islamabad and Lahore, have already paid professional tax according to their paid up capital, their Branches cannot be subjected to such levy. The learned counsel next contended that when the Branch offices of the petitioners are housed in the Cantonment area, they go outside the domain of the Provincial Government, therefore, levy of professional tax being beyond its competence would be illegal and unlawful. The learned counsel appearing in W.P. No,950 of 2008 contended that since the Bank cannot be pushed within the definition of profession, trade or calling, levy of professional tax thereon would be totally unwarranted. The levy of professional tax on the Banking Companies, the learned counsel added, is also unjustified, when they being covered by Entry No,48 of the Federal Legislative List, go outside the competence of the Provincial Assembly.
3. As against that, the learned counsel appearing on behalf of the respondents contended that Article 163 of the Constitution of Islamic Republic of Pakistan, 1973, enables the Provincial Assembly to levy professional tax on professions etc. Provided it does not exceed the limits prescribed by the Act of the Parliament. The learned counsel next contended that since the levy is within the limits fixed by the Parliament, it cannot be questioned on any score. The learned counsel to support his contention placed reliance on the case of Province of Punjab and others v. Sargodha Textile Mills Ltd. And others PLD 2005 SC 988. The learned counsel next contended that the mere fact that the companies are housed in the cantonment area cannot limit the powers of the Provincial Assembly when such area despite being part and parcel of the cantonment lies within the province. The learned counsel by referring to section 60 of the Cantonments Act submitted that the Cantonment Board has, no doubt, powers to impose any tax in any cantonment with the previous sanction of the Federal Government which may be imposed in any Municipality in the province wherein such cantonment is situated but it nowhere restricts the powers of the Provincial Assembly to impose tax on a person, company, trade, employment or calling, simply because its branch is housed in the cantonment area. The learned counsel to support his contention placed reliance on the case of Fist Leasing Corporation Ltd. v. Government of N.-W.F.P. And others rendered in Writ Petition No, 1965 of 1998 decided on 28-1-2009.
4. We have gone through the record carefully and have also considered the submissions made by the learned counsel for the parties.
5. How far the Provincial Assembly is competent to impose the Provincial tax on a profession, trade, calling or employment, has been elaborately dealt with by the apex Court in the case of Province of Punjab and others v. Sargodha Textile Mills Ltd. And others PLD 2005 SC 988, in the words which are reproduced as under:-- "We have heard the learned Advocate General, Punjab, and the learned Deputy Attorney General for Pakistan, the learned counsel for the Cantonment Board as well as the learned counsel for the companies. The subject-matter of professional tax has a chequered legislative history. The government of India Act, 1935, by section 111, as also the Government of India Act, 1935, by Item No,46 II (Provincial Legislative List) of the Seventh Schedule, empowered the Provincial Legislatures of India to levy the Professional Taxes. Certain provinces imposed the professional taxes on the basis of income which were considered to be quite unjust and inequitable as if they were in the nature of income tax in disguise. The Calcutta Municipal Corporation and other bodies in the State of West Bengal imposed the annual professional tax at a flat rate ranging from Rs,3 to Rs,50 for individuals and from Rs,20 to Rs,200 from companies calculated on the basis of their paid-up capital. The Government of United Provinces by taking advantage of the unlimited power imposed the employment tax on all salaried persons who were entitled to draw monthly emoluments of Rs,250 or above. The Governor-General of India took up the matter with the Secretary to State for India for the removal of anomalies with regard to the unfettered powers of the Provincial Governments to impose the professional tax. Therefore, the British Parliament enacted the India and Burma (Miscellaneous Amendments) Act, 1940. Item No,46 list II (Provincial Legislative List) in the Seventh Schedule of Act of 1935 was amended. The professional tax was made subject to newly-inserted section 142-A which clearly laid down, inter alia, that a provincial law relating to professional taxes for the benefit of a province or a municipality, district or local board or other local authority would not be invalid on the ground that it was with respect to a tax on income provided that the professional tax would not exceed Rs,50 per annum. The Constitution of India, by Article 276 had originally fixed a maximum limit of Rs,250 of the professional tax which was raised to Rs,2,500 by the Indian Constitution (Sixtieth Amendment) Act, 1988.
' Another relevant paragraph also deserves verbatim reproduction which runs as under:-- "Both in Pakistan and 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 West Pakistan General Clauses Act, 1956. 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."
6. Now the question crops up whether a company with the Head Office outside the province having paid the professional tax according to its paid up capital, is liable still to pay professional tax simply because one of its Branches is functioning in the province? Our answer to the question would be a simple "yes" because what is required for the levy of such tax is that it must be a limited company, Mudaraba, mutual fund and other body corporate with paid up capital or reserves in the preceding years. If the petitioners come within the pale of any these, as they do, they cannot escape the liability of such levy, irrespective of the fact whether their Head Offices are within or outside the province. Even otherwise, a company which enters a province other than the one where its Head Office is established with all its paraphernalia for any business activity shall invariably be exposed to such levy. Payment of professional tax in one province cannot diminish or dilute its liability once it decides to expand its activity by entering into another province.
7. Next comes the question of Cantonment. It is true that cantonment being a body at par with a Municipality can levy taxes the way and to the extent the latter does within the scope of section 60 of the Cantonments Act, but this under no canons of interpretation takes any such business, trade, calling or employment carried in the Cantonment area outside the scope of the Province of its Assembly. What is provided by section 60 of the Act is that each has domain of its own. Neither one nor the other can meddle in each other's domain. In the absence of any provision whether express or implied in any law for the time being in force, the powers of the Provincial Government to levy the professional tax on the business carried in the cantonment area, cannot be restricted. If the argument of this nature is allowed to prevail then the professionals whose offices are housed in the Cantonment area would go outside the province and therefore cannot be subjected to this levy. On this analogy even vehicles owned by the residents of Cantonment area cannot be made liable to any provincial tax. The argument of this nature and character being pedantic, if not preposterous, cannot be given much weight. It may not, however, be forgotten that tax is not imposed on Cantonment but on the business carried therein.
8. The argument that the levy of professional tax on Banks is all the more unjustified when the Banks being covered by Entry No,48 of the Federal Legislative List, go outside the competence of the Provincial Assembly, has not impressed us as the Banks or Banking Companies cannot be termed as corporation in any sense of the word. They being limited companies cannot be pushed into the above-mentioned entry with all the noise and chaos of semantics heard and witnessed during the course of arguments.
9. When considered in this background, we do not think D the levy of professional tax on any of the petitioners can be held as illegal or ultra vires.
10. For the reasons discussed above, we finding no substance in these writ petitions dismiss them, with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.