' The common factor in all these petitions is that the nomination papers of the respective petitioners have been rejected primarily on the ground that they are in default of payment of agricultural income tax". Therefore, through this single order we propose to decide the Constitutional petitions, mentioned in Schedule "A" to this order.
2. In the instant case the nomination papers of the petitioner were rejected by the Returning Officer on 05.04.2013 and his appeal before the learned Election Tribunal was also dismissed on 17.04.2013.
3. Learned counsel for the petitioner submits that column No, 14 of the nomination paper requires the candidate to declare his "agricultural income" for the preceding three years. The petitioners declared such income, however, in the next column, they were required to disclose the "aggregate agricultural income tax" paid by them. The petitioners crossed it by mentioning the word "NIL" indicating that no tax had been paid. Learned counsel submits that the said column had been struck out or filled with the word "NIL", on two scores; One, because the petitioners were exempted from payment of agricultural income tax under the Punjab Agricultural Income Tax Act, 1997 ("Act") and second, in the absence of any assessment by the revenue authorities, the petitioners were not liable to pay agricultural income tax. Learned counsel for the petitioners further points out that there is clear distinction between the terms "agricultural income tax" and "total agricultural income tax" and the said terms have been separately defined in Section 2(1)(a) and 2(1)(k) of the Act.
4. He submits that the agricultural income tax is payable on the "total agricultural income" as defined in Section 3(3) of the Act. He further submits that the total agricultural income tax is required to be computed by adjusting the allowances and deduction permissible under Section 4- A of the Act. Therefore, tax is payable not on the agricultural income but on the total agricultural income after deduction of the allowances and deductions as enumerated in Section 4-A of the Act.
Learned counsel further points out that the 'mechanism for the assessment of the tax of total agricultural income is provided in Section 4 of the Act.
5 . He, therefore, submits that in terms of Section 4 read with Schedules-I and II of the Act, rates in calculation of total tax on total agricultural income has been provided. The tax is required to be calculated on the basis of total agricultural income. He finally submits that Sections 8, 9 and 10 of the Act provide for penalties pertaining to non-furnishing of the return or for concealment of cultivated land or for default in payment of any tax. He points out that the petitioners were never served with any notice or summoned before any official of the Revenue Department either to furnish statements/returns or to, impose penalties.
6. Learned counsel for the respondent, on the other hand, submits that the relevant column in the nomination paper is quite clear and unambiguous. It requires the candidate to disclose the area of the land owned by him, the agricultural income earned by him through the said property and the agricultural income tax paid by him against his earning, therefore, once having declared the income, which is in excess of the exempted amount of eighty thousand rupees, the candidate was under an obligation to pay the agricultural income tax and his failure would constitute default in terms of Article 63(1)(o) of the Constitution of Islamic Republic of Pakistan, 1973. He, therefore, submits that the petitions are liable to be rejected. He further submits that in terms of Rule 5 of. The Punjab Agricultural Tax Rules, 2001, the petitioners were under an obligation to file return. He, therefore, submits that there is departmental failure in undertaking the proceedings against the agricultural income tax defaulters.
7 We have heard the learned counsel for the parties and gone through the record.
8. Perusal of nomination paper indicates that there are four columns in item 14 of the nomination paper which is as under:--- 1 Tax Land I Agricultural I Total Agricultural year Holding 1 Income I Income Tax Paid The third and fourth columns are of significance.' Third column requires the candidate to disclose his agricultural income. The word "agricultural income" and "total agricultural income" have been separately defined in the Act in the following manner:--- 2(1)(a) any rent or revenue derived from land which is situated in the Punjab and is used for agricultural purposes; 2(1)(b) "total agricultural income" means the total amount of agricultural income, computed in the matter laid down in this Act.
9. The significance of the difference' in the above provisions is highlighted in Section 3(3) of the Act which provides that agricultural income tax is to be charged on "total agriculture income" and not on agriculture income. This legal position is also admitted by the respondents. Column three of the nomination paper is ambiguous and _does not clearly show whether the candidate is to declare his "agricultural income" or "total agricultural income":
10. Sections 3(3), 4 and 4-A of the Act read with Rules 5, 9, 10, 12, 13 of the Ordinance reveal that the assessee has to work out the "total agricultural income" and then submit his return which has to be duly assessed by the Collector. It is after assessment of the return that the liability of an assessee can be determined. Hence the question of default, if any, can only arise post assessment.
11. The other dimension is where an assessee fails to furnish his return. Under Section 8 of the Act the assessee is slapped with a penalty. Penalty can also be imposed for concealments of cultivated land or default in payment of tax under Sections 9 and 10 of the Act. These penalties can, only be. Imposed after a reasonable opportunity is granted to the assessee of being heard. In the present case. Neither the assessm ent has taken. Place nor any penalty for lack of furnishing a return, has been imposed on the petitioners.
12. In this background, we called Member (Taxation), Board of Revenue. He stated that the Agricultural Tax even though levied under the Act, has not taken root on an operational level due to lack of proper infrastructure. On a question posed by the Court he submitted that there have been no assessm ents of agricultural tax in Punjab according to his record and same is the case with the imposition of penalties under the Act. The statement made by the Member (Taxation) made it clear that the Agricultural Tax has not been operationalized in the field and is presently source than a still-born tax which needs to be properly enforced. The Member failed to show any record of recovery maintained under Section 6 of the Act read with Rule 19 of the Rules to establish that the agricultural tax is being collected under the Act. With this ground reality, it cannot be held by this Court with any level of certainty that the petitioners had committed default in the payment of agricultural income tax.
13. Even for the sake of arguments, if there was ambiguity in the interpretation of the third column, benefit of the same is to go to the candidate-assessee, whose fundamental right to contest election under Article 17(2) of the Constitution is at stake (reliance is placed on Workers' Party Pakistan through Akhtar Hussain, Advocate General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 S.C. 681) and just on the basis of the technicalities, he cannot be thrown out of the election process.
14. This Court is hopeful that in future, the Election Commission of Pakistan will establish better co- operation with the revenue authorities and reframe column No, 14 soliciting correct information from a prospective candidate in accordance with the Act.
15. In view of the foregoing, the impugned orders dated 05.04.2013 and 17.04.2013 passed by the Returning Officer and the learned Election Tribunal respectively are set aside, resultantly this petition is allowed. The Returning Officer has already been directed to provisionally include the name of the petitioner in the list of eligible candidates in terms of Section 15 of Representation of People Act, 1976, by way of an interim order dated 23.04.2013, therefore, the said order is hereby confirmed. In case the petitioners produce a certificate from political party regarding an election symbol, the said symbol shall be allocated to them, if already not allocated to any candidate. In case, the petitioner is an independent candidate, he shall be allocated the symbol in accordance with law. {{TABLE}} SCHEDULE "A"
Sr.No, Writ Petition No, Title Writ Petition No, 9782/2013 Sajid Yousaf v. Returning Officer, etc. Writ Petition No, 9741/2013 Ch. Zubair Ahmad v. Returning Officer, etc. Writ Petition No, 9842/2013 Nazir Ahmad v. The State and others Writ Petition No, 9985/2013 Tanvir Ahmad v. The State and others Writ Petition No, 10017/2013 Ch. Mukhtar Ahmad v. Election Tribunal, etc. Writ Petition No, 9749/2013 Nadeem Gauhar v. Appellate Tribunal, etc. Writ Petition No, 9783/2013 Muhammad Akhtar Tarar v. Returning Officer, etc.