' MUNSIF KHAN MINHAS (JUDICIAL MEMBER).---The department has filed instant appeal against the order dated 29-11-2011 passed by learned CIR(A) Multan for the tax year 2009 on the following ground:- "That the learned CIR(A) was not justified to delete WWF and to hold that charge of Worker's Welfare Fund without passing order in writing under section 4(4) of Worker's Welfare Fund Ordinance, 1971 is not maintainable, when refund order under section 170 of the Income Tax Ordinance, 2001 was passed.
2. Brief facts leading to this appeal are that, taxpayer being a Private Limited Company is deriving income from Cotton Ginning and Oil Extraction Plant. Return for the tax year under consideration was filed on FBR portal on 31-12-2010 declaring loss at (Rs,57,379,595). After adjusting minimum tax under section 113 at Rs,760,948, balance refund of Rs,11,899,511 was claimed. While processing the refund claim, the Officer concerned, calculated admitted tax liability under section 113 as before and refund of Rs,11,899,511 was issued. On examination of the assessment record, it was transpired that while calculating minimum tax liability under section 113 on the turn over declared which includes PTR and non PTR categories, total turnover was considered for calculation of the same. In the light of latest amendment inserted through Finance Act, 2010, minimum tax is to be calculated on the turnover excluding the turnover subjected to PTR. The AR of the taxpayer company has agitated the treatment of addition of revenue receipts of Rs,3,669,088 instead of Rs,1,670,933 as the profit on fixed assets amounting to Rs,1,998,155 is not revenue receipt for the purposes of section 113 of the Income Tax Ordinance, 2001. The contention of the taxpayer to this extent was accepted by the Additional Commissioner. However he amended figure of WWF. Being aggrieved with the treatment given by the Additional Commissioner Inland Revenue (Audit Range, Zone-II), RTO, Multan, the taxpayer preferred appeal before the learned CIR(A), Multan who after considering the facts and circumstances of the case observed as under:-- "Contention of the learned AR has been considered and found to be correct being supported by the judgment cited supra. I agree with the contention of learned AR that there was no order in writing under section 4(4) of Worker's Welfare Fund Ordinance, 1971 regarding charge of worker welfare fund, the impugned order is not tenable in view of case-law relied by the learned AR reported as 2007 PTD 163 in which it was held as under; "Assessment on production of accounts-Levy of W.W.F.Validity---Whether there is no order in writing regarding Workers Welfare Fund and charge has been made only through IT-30, therefore, there is no justification for upholding levy of WWF by. CIT(A) and is deleted."
' After taking into account the legal position of the case, ratio decided in the said judgment is found to be on all fours applicable to case of the appellant and the charging of WWF by the above Officer without passing order in writing under section 4(4) of Worker's Welfare Fund Ordinance, 1971 is not maintainable which is hereby deleted.
3. Being dissatisfied with the treatment accorded by the learned CIR(A), Department has come up in 2nd appeal before the Tribunal on the grounds raised supra.
4. Arguments have been heard. In this case deemed assessment was amended only on the point of charge of WWF. Undoubtedly for the charge of WWF appropriate order is to be passed under section 4 of the Workers Welfare Fund Ordinance, 1971. There was no occasion to, invoke section 122(5) for amending the deemed assessment only for, charge of WWF. It requires a separate order under section 4 of the Worker's Welfare Fund Ordinance, 1971. Learned CIR(A) while deleting the WWF has relied upon the reported Judgment as 2007 PTD 163.
5. After introduction of new Income Tax Ordinance, 2001 all calculations have become the part of the deemed order under section 120(1)(b). It the figure of the WWF is to be amended. Result is the deemed assessm ent will have to be amended because two assessments cannot be remain in the field simultaneously. Only requirement is that order passed for the levy of the WWF must be speaking one and after proper confrontation to the Taxpayer. In this case last para dealing with the said preposition at the page-4 of the order is self speaking and well explained which is hereby reproduced as under:-- "As far as the levy of WWF is concerned, which has been charged on Accounting Profit @ 2% resulting into Rs,233,048 is not correct as the same is to be charged as per Circular No,13 of 2008 dated 23.10.2008 whereby it has been clarified that vide Clause 12 of the Finance Act, 2006, the definition of "total income" under the WWF Ordinance, 1971 was substituted and the persons, who were required to file the statement, the profit(before taxation or provision for taxation) as per accounts or 4% of the receipts as per the statement filed under section 115 of the Ordinance, whichever is higher, were made liable to WWF. Therefore, WWF at Rs,466, 727 is higher than that of the Accounting Profit, hence, the same is charged accordingly.
' It is speaking order and for deletion of WWF relied Tribunal's judgment 2007 PTD (Trio.) 163 is of the single bench and pertains to the Income Tax Ordinance, 1979 while with the promulgation of the Income Tax Ordinance, 2001 scenario has totally changed. With these observations the order passed by the learned first appellate authority is hereby set aside and that order of additional Commissioner Inland Revenue, RTO, Multan hereby stands restored.
6. The department appeal being without any merit hereby stands dismissed.