AYESHA A. MALIK J.---This common judgment decides upon the issues raised in the Writ Petitions detailed in Schedule "A", appended with the judgment.
2. The common facts in all these cases are that the Petitioners are farmers, who own agricultural land from which they derive agricultural income. Agricultural income is subject to the levy of agricultural income tax under the Agricultural Act, 1997 ("Act") and the rules framed there under namely, the Punjab Agricultural Income Rules, 2001 ("Rules"). By way of amendment in the Act, Section 3B was inserted through the Punjab Finance Act, 2013 ("Finance Act") notified on 29.06.2013.
In terms of Section 1 of the Finance Act, it came into force on 01.07.2013. The Petitioners challenge the interpretation of Section 3B of the Act by the Respondents on the ground that they have sought to recover agricultural income tax with retrospective effect from the Petitioners. The other ground of challenge common in all these petitions is that the Respondents seek to recover agricultural income tax without following the mandatory procedure provided under the Act as well as under the Rules.
3. The case of the Petitioners is that Section 3B of the Act came into effect on the first day of July, 2013 and would apply to the assessme nt year which begins from the first day of July, 2014. In these cases, the Respondents have sought to recover agricultural income tax for the assessment years 2012, 2013 and in some cases for the assessment year 2014. Learned counsel argued that "assessm ent year" is a defined term under the Act, which means the period of twelve months beginning on the first day of July next following the income year. In terms of the definition, Section 3B of the Act should be applied to the assessment year beginning from 01.07.2014 and not to the assessm ent year of 2012 or 2013. Learned counsel further argued that in terms of the mandatory process under the Act the Respondents levy, assess and collect agricultural income tax for a given assessm ent year. However, in these cases, they have not levied or assessed agricultural income tax but instead have issued recovery notices demanding the recovery of agricultural income tax.
They argued that there is no assessme nt older and no explanation as to the manner in which the tax has been calculated. In some cases the period over which the amount has been calculated has not been disclosed. Learned counsel argued that the recovery notices all follow the same template and simply provide that the given tax is recoverable for the years 2012, 2013 and 2014.
However, no detail has been provided as to the manner in which the amount has been calculated nor any details have been given for each assessment year. Learned counsel argued that by failing to issue an assesment order the Petitioners have been deprived of their right to challenge the assessm ent order under Section 7 of the Act as the Respondents have resorted to direct recovery without following due process. Learned counsel argued that the due process is provided under the Rules such that the Respondents have to issue an assessment order for a particular assessing year and in the event of non-filing of the agricultural income tax return under the Act the Respondents are required to issue notices to the Petitioner to furnish the return for the assessment year before any demand can be raised.
4. Report and para wise comments have been filed by the Respondents. Learned Law Officer argued that the levy of agricultural income tax has been directly linked with the declaration made for agricultural income in the income tax return filed by the taxpayer. Section 3B of the Act allows the Respondents to recover agricultural income tax at the rate prescribed in the first schedule under the Act on the basis of the income declared as agricultural income in the returns filed under the Income Tax Ordinance, 2001 ("Ordinance"). He further argued that on the basis of Rule 14 of the Rules when any agricultural income chargeable to tax under the Act has escaped assessment, the amount due to the Respondents become payable and no proceeding is required to be followed as the rate of tax per acre has been provided for in the first schedule and it is applied to the amount declared in the income tax returns. He further argued that so far as the issue of retrospective application is concerned, Rule 14(3) of the Rules allows the Respondents to recover all amounts due, within a period of two years from which the total agricultural income was first assessable. In these cases, the Respondents are seeking to recover the amount due to the Respondents from the year 2012 onwards, which is within the two year limit. He further argued that most of the Petitioners have not filed their agricultural tax returns under the Act and have failed to pay the required tax, hence these amounts stand due and payable from the Petitioners immediately.
5. The first question before this Court is with respect to the applicability of Section 3B of the Act. The Respondents are seeking to recover agricultural income tax for the assessment years 2012, 2013 and 2014. Notices were issued under Rule 14 of the Rules, which require the Petitioners to produce proof of payment of agricultural income within 15 days and in the event of failure the Respondents shall assess the tax payable under Rule 14 of the Rules. In terms of what has been argued on behalf of the Respondents, the notices under challenge were issued pursuant to the insertion of Section 3B of the Act through the Finance Act. The amendment reads as follows:-- "Amendment, in Act 1 of 1997.---In the Punjab Agricultural Income Tax Act 1997 (1 of 1997), after Section 3A, the following section shall be inserted:-- 3B. Tax on the basis of income tax return. Notwithstanding the provisions of Section 3, where any person has declared agricultural income for any assessment year in the return filed under the Income Tax Ordinance, 2001 (XLIX of 2001), the person shall pay the tax on such income at the rate specified in the Second Schedule." (Emphasis supplied (sic))
The notification is dated 29.06.2013 and the Act came into force on 01.07.2013. The question that arises is whether the Respondents can recover agricultural income tax on the strength of Section 3B of the Act for the assessm ent years 2012, 2013 and 2014 given that it came into effect on 01.07.2013. A tax statute operates prospectively and not retrospectively unless clearly intended and it is only where the legislative intent is clearly provided to give retrospective effect to a statutory provision, then the tax can apply with retrospective effect. Reliance is placed on the cases titled "Zila Council, Sialkot through Administrator v. Abdul Ghani Proprietor lqbal Brothers, Sialkot and others"(PLD 2004 SC 425) and "Muhammad llyas v. The State" (2009 SCM R 1042). In this case, there is no such intent. Hence the provisions of the Act will apply prospectively.
6. The Act defines "assessm ent year" in Section 2(ac) and income year in Section 2 (da) of the Act as follows:-- Assessment year "The, period of twelve months beginning on the first day of July next following the income year".
Income year "The financial year next preceding the said assessment year."
On reading both definitions, it is clear that because Section 3B of the Act came into effect on 01.07.2013 it is applicable to the assessment year, which begins 01.07.2014 as it is the next assessm ent year following the income year which commenced on 01.07.2013. The Respondents have sought recovery for the assessment year starting 01.07.2012 and 01.07.2013. This tantamounts to retrospective application of Section 3B of the Act, which came into effect on 01.07.2013. Hence, recovery for the assessm ent years 2012 and 2013 cannot be made under Section 3B of the Act.
7. The next question is in relation to the process being followed by the Respondents to recover agricultural income tax under Section 3B of the Act. Notices under Rule 14 of the Rules were issued seeking the recovery of the tax amount within 15 days' time. The notices state the amount due and also the tax years for which the amount is due. The Respondents have not been able to explain the basis on which this amount was calculated and from where the figures were taken. They have relied upon Section 3B of the Act to urge the point that the data was taken from the income tax returns filed by the Petitioner. However, they have failed to show the data or even confirm that every Petitioner has filed a tax return. Even otherwise, Section 3B of the Act does not allow the Respondents to recover agricultural income tax against the prescribed procedure under the Act.
8. Section 3 of the Act is the charging section which provides that agricultural income tax shall be levied, assessed and collected for each tax year in respect of agricultural income of a tax year of an owner at the rate specified in the First Schedule of the Act. Under the Act, tax is assessed for each assessm ent year in respect of the total agricultural income of that year. Notwithstanding the levy and assessm ent of agricultural income tax under Section 3, Section 3B of the Act provides that where a person has declared agricultural income in his income tax return then such person must pay agricultural income tax on the agricultural income declared in the tax income return at the rate specified in the Second Schedule. The purpose of Section 3B of the Act is to ensure that agricultural income tax is paid, at least, on the declared agricultural income. Hence Section 3B of the Act operates irrespective of the powers provided to levy and assess tax under Section 3 of the Act. In this way Section 3B of the Act does not override the charging section but is a part of the charging section which essentially, requires an owner to pay agricultural income tax on the agricultural income he/she has declared. Section 3B of the Act therefore, clarifies the intent of the charging section to the extent of levy and assessment where agricultural income has been declared in the income tax return. The rest of the provisions of the Act provide the mechanism for assessm ent and collection of tax. Assessment and collection of the tax are provided under Section 4 of the Act. Computation for assessment is under Sections 4A and 4B of the Act but when Section 3B of the Act is applied, the computation for assessment under Sections 4A and 4B of the Act will not apply. In cases falling under Section 3B of the Act the Collector assesses tax on the declared agricultural income by applying the rate given in the Second Schedule of the Act. This amount must be paid irrespective of any computation under Sections 4A and 4B of the Act. The thrust of the Respondent's case is based on the language of Section 3B of the Act which provides that notwithstanding the provisions of Section 3, where any person has declared agricultural income for any assessm ent year in the return filed under the Income Tax Ordinance, 2001 (XLIX of 2001), the person shall pay the tax on such income at the rate specified in the Second Schedule. As per their understanding the requirements of levy, assessment and collection have become subservient due to the non-obstante clause of Section 3B of the Act. Section 3 of the Act is the charging section of the Act which creates the charge of the tax on agricultural income at the rate specified in the First Schedule. The tax is then assessed and collected as provided under the Act Section 3B of the Act also creates the charge of the tax on the declared agricultural income at the rate specified. Since both the sections state the incidence of the tax, the non-obstante clause of Section 3B of the Act shall be read in the context of Section 3 of the Act. Section 3B of the Act cannot override the machinery provisions of the Act which actualizes the assessment and collection of the tax. The procedure provided under the Act and the Rules for assessment and collection of tax is mandatory and shall be applicable for the recovery of tax. This means that the owners of agricultural land even under Section 3B of the Act must file an agricultural tax return and an assessment order is mandatory because the charging section of the Act stipulates when the tax is to be charged and who is to pay the tax. The manner in which the tax is to be assessed is under Section 4 of the Act, which provides that the tax shall be assessed and collected in the prescribed manner as provided under the Rules.
9. The procedure under the Rules is that every person who is liable to pay agricultural income tax must file an agricultural tax return as per Rule 5. In terms thereof an assessee shall deliver to the Collector his/her agricultural tax return, who shall issue an acknowledgment receipt as per Form B, which shall be entered in the Register of Returns for the assessment year as per Form C.
Agricultural Income Tax is based on self-assessment meaning that once a return is filed under the Act the Collector will assess the tax to be paid on the basis of the information provided in the return filed. In the event that a person does not file his/her return then Rule 6 requires the Collector of the Tehsil to issue notice in writing requiring an owner of the agricultural land to file his/her return in terms of Rule 5 within 30 days. Once the return is filed, the Collector of the Tehsil shall assess the agricultural tax of the owner for the assessment year on the basis of the return filed and determine the tax payable. In this regard, the Collector can call the assessee or require production of books of accounts as per Rules 9, 10 and 11 .Of the Rules. Where an assessee fails to furnish the return, Rule 12 requires the Collector to pass an assessment order to the best of his judgment. Rule 14 is related to additional assessm ent in circumstances where agricultural income chargeable escapes assessm ent or if an assessm ent is too low or a wrong rate has been applied. In such cases the Collector will issue notice and proceed to make the additional assessment after giving the assessee an opportunity to show cause as to why additional assessment should not be made.
Sub-Rule (2) of Rule 14 provides that for the purposes of additional assessment the Collector will only proceed if he has reliable information pertaining to the reasons given in Rule 14 (1) (a) or (b) of the Rules.
10. From the aforementioned, clear that in order to recover agricultural tax under the Act a return mu. Be filed and an assessm ent order is required. The Respondents have admittedly not passed any assessm ent order in any of the cases before the Court. They have relied on Section 3B of the Act and seek to recover tax on the basis of information collected from the Federal Board of Revenue ("FBR") regarding declared agricultural income in the income tax return of the Petitioners.
However, even in this regard they have not been able to show the information provided by the FBR nor have they been able to clarify whether every Petitioner has filed an income tax return. The Respondents have simply declared the amount of agricultural tax due over a period of one, two or three years without even showing the breakup for each year. This is contrary to the provisions of the law. In the first instance under the Act a tax return must be filed by an owner of land chargeable to tax. Secondly, there must be an assessment order for an assessment year as the owner of land has a right to challenge the assessment order under Section 7 of the Act. With the insertion of C Section 3B of the Act an assessment order is required as it will disclose the basis of the calculation of the tax levied. So even if the amount is taken from the income tax return of the owner at the rate specified in the Second Schedule, an assessment order must be issued by the Collector.
11. Therefore, these petitions are allowed and the impugned recovery notices issued by the Respondents are set aside being illegal and in violation of the mandatory provisions of law.
Schedule-A Details of Writ Petitions mentioned in order dated 26.10.2015 passed in W.P. No.15628/2015 Sr.
No.W.P. Nos. Parties Name Notice for the tax year 1 15628/15 Qaisar Abbas etc. v. Member (Taxes) BOR, etc. 2012/13 2 18376/15 Adnan Khan v. Member (Taxes) BOR, etc. 2012 3 20538/15 Syed Ehsan ur Rehman Bukhari v. Province of Punjab, etc.2012 4 18438/15 Mohsin Khan v. Member (Taxes) BOR, etc. 2012 5 17968/15 Khalid Mehmood etc. v. Province of Punjab, etc. 2012/2013 6 15618/15 Muhammad Arshad v. Member (Taxes) BOR, etc. 2012/13 7 15614/15 Syed Fakhar Riaz v. Member (Taxes) BOR, etc. 2012/13 8 15621/15 Khursheed Bibi v. Member (Taxes) BOR, etc. 2012/13 9 16001/15 Syed Javed Hasnain Shah v. Province of Punjab, etc. 2012/13 and 2013/14 10 16643/15 Abdul Razzaq v. Govt. of Punjab, etc. 2012 11 17036/15 Bilal Ahmad v. Province of Punjab, etc. 2012/13 12 17176/15 Ghulam Dastgir Lak v. Govt. of Punjab 2012/13 13 17238/15 Asghar Ali v. Govt. of Punjab, etc. 2012 14 17241/15 Walayat All v. Govt. of Punjab, etc. 2012/13 15 17243/15 Muhammad Ameen Khan v. Govt. of Punjab 2013 16 17285/15 Malik Zaheer Abbas v. Govt. of Punjab etc. 2012 17 17379/15 Muhammad Hayat v. Province of Punjab, etc. 2012/13 18 17387/15 Ch. Iftekhar Hussain Gondal v. Province of Punjab, etc. 2012/13 19 17670/15 Mian Faisal Shafi v. Province of Punjab, etc. 2013 20 17386/15 Imran Ahmad Maiken v. Province of Punjab, etc. 2013/14 21 17526/15 Muhammad Shoaib Shah v. Province of Punjab, etc. 2013/14 22 17719/15 Safdar Ali Wahla v. Govt. of Punjab, etc. 2012 23 17768/15 Muhammad Saeed Akhtar v. Province of Punjab, etc. 2012 24 17836/15 Mian Muhamad Ashraf Kalyar v. Province of Punjab, etc.2012 25 17841/15 Safdar Bivi v. Province of Punjab, etc. 2012 26 17970/15 Zafar Abbas etc: v. Province of Punjab, etc. 2012 27 30300/15 Muhammad Arshad Naeem v. Government of Punjab etc.2012 28 18051/15 Azmat Ali Malhi v. Government of Punjab etc. 2012 29 18053/15 Saif Ullah Mangat v. Government of Punjab etc. 2012 30 18055/15 Muhammad Asad Mangat v. Government of Punjab etc.2012/13 31 18081/15 Muhammad Saeed Akhtar v. Province of Punjab etc. 2012/13 32 18089/15 Syed Nusrat Abbas Sherazi v. Province of Punjab etc. 2013 33 18162/15 Fahad Farooq v. Province of Punjab etc. 2012/13/14 34 18164/15 Ehtisham Suleman v. Province of Punjab etc. 2013 35 18165/15 Mubashir Farooq v. Province of Punjab etc. 2012/13/14 36 18166/15 Muhammad Musaddaq Farooq v. Province of Punjab etc.2012/13/14 37 18167/15 Muhammad Qasim Farooq v. Province of Punjab etc. 2012/13/14 38 18299/15 Fahad Farooq v. Province of Punjab etc. 2012/13/14 39 18301/15 Muhammad Musaddaq Farooq v. Province of Punjab etc.2012/13/14 40 18302/15 Haq Nawaz Malik v. Province of Punjab etc. 2012 41 18303/15 Rizwan ul Haq v. Province of Punjab etc. 2012 42 18305/15 Muhammad Qasim Farooq v. Province of Punjab etc. 2012/13/14 43 18306/15 Mian Muhammad Farooq v. Province of Punjab etc. 2012/13/14 44 18307/15 Abdul Khaliq v. Province of Punjab etc. 2012 45 18309/15 Abdul Wahid v. Province of Punjab etc. 2012 46 18310/15 Mubashir Farooq v. Province of Punjab etc. 2012/13/14 47 18311/15 Ahmad Suleman Zahid v. Province of Punjab etc. 2012 48 18312/15 Mian Muhammad Farooq v. Province of Punjab etc. 2013 49 18353/15 Tahir Mustafa v. Member (Taxes), BOR etc. 2012/13 50 18379/15 Muhammad Akbar Virk v. Government of Punjab etc. 2013 51 18417/15 Rameez Tariq etc. v. Government of Punjab etc. 2012 52 18419/15 Mubashar Nawaz v. Member (Taxes) BOR etc. 2013-14 53 18439/15 Anwar ul Haq v. Government of Punjab etc. 2012 54 18441/15 Abdul Latif v. Government of Punjab etc. 2012 55 18626/15 Muhammad Amin Warriach v. Government of Punjab etc.2013 56 18688/15 Pervaiz Rashid etc. v. Province of Punjab etc. 2012/13 57 18746/15 Muhammad Shafi etc. v. Province of Punjab etc. 2012/13 58 18681/15 Muhammad Ahmad Samar Saleem v. Province of Punjab etc.2013 59 18790/15 Muhammad Musharaf v. Government of Punjab etc. 2013 60 18796/15 Muhammad Akhtar v. Province of Punjab etc. 2012/13 61 18853/15 Muhammad Shakeel v. Province of Punjab etc. 2013 62 18791/15 Syed Nasir Jamal v. Govt. of Punjab, etc. 2013 63 18793/15 Syed Nasir Jamal v. Govt. of Punjab, etc. 2012 64 18795/15 Muhammad Yousaf Ali v. Govt. of Punjab, etc. 2012 65 18834/15 Mazhar Hussain Shah v. Govt. of Punjab, etc. 2013 66 19022/15 Javed lqbal v. Govt. of Punjab, etc. 2012/13 67 19044/15 Mukhtar Ahmad v. Province of Punjab, etc. 2013 68 19051/15 Shahid Hayat etc. v. Govt. of Punjab, etc. 2013 69 19257/15 Asif Javed v. Govt. of Punjab, etc. 2013 70 19285/15 Rafique Ahmad Nafees v. Province of Punjab, etc. 2012 71 19299/15 Muhammad Aslam Shah v. Govt. of Punjab, etc. 2013 72 19302/15 Muhammad Aslam Shah v. Govt. of Punjab, etc. 2012 73 19307/15 Niaz Ahmad v. Member (Taxes) BOR, etc. 2013 74 19310/15 Anwaar Ahmad v. Member (Taxes) BOR, etc. 2013 75 19323/15 Bashir Ahmad v. Govt. of Punjab, etc. 2012/13 76 19344/15 Nazir Ahmad v. Member (Taxes) BOR, etc. 2012/13 77 18352/15 Tariq Mahmood v. Member (Taxes) BOR, etc. 2012 78 18356/15 Gul Muhammad Shah v. Province of Punjab, etc. 2013/14 79 19369/15 Fateh Sher v. Province of Punjab, etc. 2012/13 80 19376/15 Nauman Ullah Khan Chattha v. Govt. of Punjab, etc. 2013 81 19379/15 Hamid Rasool Hanjra v. Govt. of Punjab, etc. 2013 82 19437/15 Asad Zaman v. Govt. of Punjab, etc. 2012 83 19510/15 Muhammad Junaid Anwar Chaudhry v. Govt. of Punjab, etc.2012 84 19516/15 Rana Muhammad Yousaf v. Province of Punjab, etc. 2012/13 85 19517/15 Rana Mushtaq Ahmad v. Province of Punjab, etc. 2012/13 86 19550/15 Abdul Hameed v. Govt. of Punjab, etc. 2012 87 19555/15 Ashifa Riaz v. Member (Taxes) BOR, etc. 2012/13 88 19557/15 Taashfeen Riaz v. Member (Taxes) BOR, etc. 2012/13 89 19866/15 Muhammad Younas v. Govt. of Punjab, etc. 2013 90 19874/15 Manzoor Ahmad Sajid v. Govt. of Punjab, etc. 2012 91 19968/15 Zahid Mahmood Khan v. Govt. of Punjab, etc. 2013 92 19994/15 Muhammad Riaz Khan v. Province of Punjab, etc. 2011/12 93 20004/15 Muhammad Ramzan v. Province of Punjab, etc. 2012 94 20050/15 Muhammad Saleem etc. v. Province of Punjab, etc. 2012/13 95 20069/15 Farooq Nazir v. Member (Taxes) BOR, etc. 2013 96 20071/15 Masood Anwar v. Member (Taxes) BOR, etc. 2012 97 20075/15 Iftilchar Ahmad v. Member (Taxes) BOR, etc. 2012 98 20077/15 Farooq Nazir v. Member (Taxes) BOR, etc. 2012 99 20081/15 Rana Muhammad Akram Khan v. Member (Taxes)
BOR, etc.2013 100 20097/15 Muhammad Aslam v. Member (Taxes) BOR, etc. 2012 101 20178/15 Syed Muhammad Ali v. Province of Punjab, etc. 2012/13 102 20283/15 Ch. Inayat Ullah v. Govt of Punjab, etc. 2012 103 20379/15 Haji Muhammad Younas v. Province of Punjab, etc. 2013 104 20584/15 Nasir Abbas Khan v. Govt. of Punjab 2013 105 20587/15 Ahmad Ejaz Khan v. Govt. of Punjab, etc. 2012 106 20593/15 Muhammad bin Naeem v. Govt. of Punjab, etc. 2013 107 20616/15 Muhammad Nawaz v. Govt. of Punjab, etc. 2012/13 108 20629/15 Aftab Iqbal Pannu v. Govt. of Punjab, etc. 2013 109 20762/15 Muhammad Saad Ullah Khan v. Govt. of Punjab, etc. 2012/13 110 21189/15 Khalid Mahmood Khan v. Member (Taxes) BOR, etc. 2012 111 22003/15 Syed Ali Kazmi v. Govt. of Punjab, etc. 2013 112 24180/15 Hafeez Ahmad Khan v. Govt. of Punjab, etc. 2012 113 23734/15 Ch. Sikandar Hayat v. Province of Punjab, etc. 2013 114 27017/15 Syed Farhat Mehdi Kazmi v. Member (Taxes) BOR, etc. 2012/13 115 28156/15 Rana Muhammad Bilal Parooq v. AC/Collector, etc. 2012/13 116 28239/15 Alchtar Hussain v. Province of Punjab, etc. 2012/13 117 28814/15 Safdar Ali v. Govt. of Punjab, etc. 2012 118 23916/15 Muhammad Afzal v. Province of Punjab, etc. 2014 119 18831/15 Sardar Hassan Mahmood v. Govt. of Punjab, etc. 2013/14 120 20887/15 Nasir Ali Khan v. Govt. of Punjab, etc. 2013 121 22005/15 Syed Afzzal Hussain v. Govt. of Punjab, etc. 2013 122 24147/15 Rana Muhammad Farooq Saeed Khan v. Assistant Commissioner, etc.2012/13 123 24813/15 Haji Abdul Mateen Khan v. Province of Punjab, etc. 2012/13 124 30758/15 Zafar Ullah Khan v. Province of Punjab, etc. 2014 125 30757/15 Saif Ullah v. Province of Punjab, etc. 2014 126 30756/15 Ahmad Raza v. Province of Punjab, etc. 2014 127 30759/15 Ch. Zia Ullah Khan v. Province of Punjab, etc. 2014 128 30761/15 Bilal Zafar v. Province of Punjab, etc. 2014 129 18304/15 Mian Muhammad Ashfaq v. Province of Punjab, etc. 2012/13 130 16465/2015Ch. Safder Ali v. Assistant Commissioner, etc. 2014