1. MUHAMMAD JAWED ZAKARIA, JUDICIAL MEMBER.---In the present case, a Full Bench was constituted by the Honourable Chairman on an application dated 20.2.2013 made by the Departmental Representative which application was referred to the honourable Chairman and he was pleased to constituted the Full Bench vide order dated 26-08-2016. It will be appropriate to reproduce the contents of the application to understand the Constitution of this Full Bench.
2. 13.05.2013 In this case, learned CIR(A) has relied upon the judgment of Appellate Tribunal Inland Revenue reported as 2008-98-85 (Trib.) while the department has submitted application, the contents of which are reproduced as under: "To The Honourable Members, Inland Revenue Appellate Tribunal, Special Bench-II, Karachi.
3. Subject: REQUEST FOR TRANSFERING THE CASE TO FULL BENCH IN RESPECT OF I.T.A. NO.1128/KB/2011 RTO HYDERABAD V/S MEDIAMAKER PHARMACEUTICAL HYDERABAD TAX YEAR 2010.
4. Kindly refer to the subject cited above and attendance of the undersigned before your honour in your court today.
5. During the proceedings of this case, it transpired that the issue of action taken under sections 161/205 of the Income Tax Ordinance, 2001 which is an independent action as per law, has been attempted to mess with proceedings under section 122 of the Income Tax Ordinance, 2001 by the taxpayer/its AR. It is worth mentioning here that sections 120, 122 and 161/205 are distinct sections of the law and have their application and repercussions in their own right. The return filed under section 114 of the Income Tax Ordinance, 2001 is a privilege and responsibility of the taxpayer simultaneously. Therefore, any interpretation on this behalf that the return is filed by Commissioner Inland Revenue is only a fiction of law. Thus to say that only recourse left with the department to take action under section 122 of the Income Tax Ordinance, 2001 after a return is filed is against the spirit of law. Sections 161/205 is invoked where taxpayer has failed to full fill its responsibility of withholding of due taxes and this action has an independent application than assessment/re- assessm ent of income of the taxpayer. It is true that for non deduction of taxes the law provides other measures too. But sections 161/205 are relatively less punitive in nature than application of section 21 of Income . Tax Ordinance, 2001 if the same action is taken under section 122 of Income Tux Ordinance, 2001, since the matter is under discussion with the Honourable Court in many cases therefore, due to its similarity and involvement of a large number of cases, the Honourable Court desires to refer the case to Full Bench in endorsed.
6. It is, therefore, kindly requested to send the case for its proceedings in the Full Bench of Honourable Inland Revenue Tribunal.
7. Sd/- (Muhammad Saeed Nashir)
8. Departmental Representative For Bench-II, IRAT, FEB, 2013"
9. During the course of hearing, the arguments of the learned DR were found convincing, for which purpose the constitution of Full Bench in our view seems to be justified. Hence it is requested accordingly.
10. (Javid. lqbal) Judicial Member.
2. The Hon'ble Chairman, ATIR was pleased to pass the following order for reconstitution of Full bench: The full bench is reconstituted with the following members.
1. Faheemul Haq Khan, A.M
2. Muhammad Jawed Zakaria, A.M
3. Mrs. Seema Imran, J.M
3. Before this Full Bench, in response to the notice Mr. Ashok Kumar, DR appeared on behalf of the Department, whereas Mr. Abdul Rahim Lakhani and Vishwa Kumar, learned A.R appeared on behalf of the Respondent Taxpayer. Mr. Arshad Siraj, Senior Advocate was appointed as 'Amicus Curie' to assist the Full bench on all the issues involved in this case.
4. Brief facts of the case as gleaned from the record are that an order under Section 161 read with section 205 was passed. Perusal of order passed under section 161 read with section 205, shows that purported action was taken after examination of return of income in which the ACIR observed that taxpayer has made purchases for the period from July 2009 to June 2010 at Rs, 114,968,668/-.
11. He has mentioned in the order that on such purchases the taxpayer was liable to deduct tax and has failed to deduct the same, which prompted him to issue a show-cause notice dated 14.4.2011.
5. In reply to such show-cause notice, a legal objection was taken while filing the explanation along with evidences. The said legal objection is reproduced below for ready reference.
12. "Those the proceedings initiated under sections 161/205 of the Income Tax Ordinance, 2001 are ab initio illegal, after filing of return of income, which is a deemed order under section 120 of the Income Tax Ordinance, 2001. The law does not permit to make such action after filing of return. It is requested that the proceedings initiated may kindly be dropped."
6. The ACIR after examination of the explanation filed by the taxpayer/Respondent, rejected such legal objection. However, on merits a liability was created by passing order under section 161. Being not satisfied with the explanation of the taxpayer, the Inland Revenue Officer concerned treating the taxpayer in default by passing order bearing No,36/172 under sections 161/205 dated: Nil of the Income Tax Ordinance, 2001 in the following words: "The abovementioned explanation of the taxpayer has thoroughly been examined in the light of details furnished by the AR of the taxpayer which reveals as under: I. That the contention of the AR of the taxpayer that, the proceeding under sections 161/205 are ab intio illegal, after filing of return, which is deemed order under section 120 of the Income Tax Ordinance, 2001 and the law does not permit to take such action after filing of return. The contention is without any supporting legal evidence even any provision of existing law.
13. That, the breakup/reconciliation of purchases filed with evidences from perusal of which it has been noted that, the purchases declared in the return included import of .Rs, 102,270,048/- and not liable for tax deduction under section 153(1)(a) of the Income Tax Ordinance, 2001. Oh examination of challans for import it has been noted that the taxpayer the amount claimed by the taxpayer under the head of import purchase does not match with his deduction of tax at the rate of 3% Rs,21,48,488/-, on which the worked back value of imports comes as under: S. No,Value of imports Tax deducted under section 148
01. 71,616,266 21,48,48,488 In view of above it transpires that the taxpayer declared value of imports on higher side to reduce the liability of tax deduction under section 153 of the Income Tax Ordinance, 2001 in his reconciliation filed. As result of above evidence the local Purchase of the tax payer liable for deduction of tax under section 153 comes as under: S. No,Value of imports' Tax deducted under section 148 Local purchase 33,117, 845 Packing Material 10,234, 557 Total local purchases43,352,402 The contention of the AR of the taxpayer that the payments are below the threshold of taxable limit found unsatisfactory due to lack of evidence. The party wise details filed by the taxpayer reflects that there is no any party who supplied the material on below taxable limit.
14. In view of above the taxpayer is treated as taxpayer in default under section 161 of the Income Tax Ordinance, 2001 and tax along with additional tax under section 205 is hereby charged as per following manners: S. No,Amount liable for tax deductionIncome Tax liable to be deductedTax charged under section 161Default surcharge under section 205Total tax charged 01 42,352,4021.517,3341,517,334329,2401,846,574
7. Against such order the taxpayer/respondent preferred an appeal under section 127 of the Income Tax Ordinance, 2001 where similar plea was taken. The learned CIR(A), who decided the appeal of the taxpayer in his favour by annulling the order of the OIR vide Order No,395 dated 27.09.2011 with the following observations:- "The arguments advanced by the learned AR of the appellant are considered. Impugned order is perused. The contention of the learned AR of the appellant seems correct that as the return of income for the tax year 2010 was filed on 13.11.2010 and the assessment stands completed under section 120(1) (b) of the Income Tax Ordinance, 2001 on filing of return and therefore, the Officer Inland Revenue was not justified to pass the order under sections 161/205 on/after 29.04.2011 i,e, after the deemed order passed under section 120(1) of the Income Tax Ordinance, 2001, the order under sections 161/205 is illegal and against the spirit of provisions of section 122 of the Income Tax Ordinance, 2001.
15. This view further fortifies with the observation of the Officer Inland Revenue embodied at page 1 para 1 of the impugned order, which reads as under:- "... The return of income for the Tax Year 2010 filed by the tax payer reflects that he has made purchases for the period from July 2009 to June 2010 at Rs,114,968,668/- therefore, he was liable to deduct tax @ 3.5% at Rs,40,23,903/- at the time of making payments on account of purchases, but the taxpayer failed to deduct tax under section 153 of the Income Tax Ordinance, 2001..."
16. Therefore, this establishes the contention of the AR of the appellant is valid, that Officer Inland Revenue resorted to action under sections 161/205 on assumptions and surmises after filing of return of income under section 114(4) of the Income Tax Ordinance, 2001, which is a deemed assessm ent order in terms of section 120 of the Income Tax Ordinance, 2001. The only recourse available under the law is to amend the deemed order under section 122 of the Income Tax Ordinance, 2001.
17. Consequent upon the return of income filed for the tax year under appeal, these findings of the Officer Inland Revenue tantamount to amendment of the deemed order under section 120 of the Income Tax Ordinance, 2001. Since the power to amend an assessment order rests in the section 122 of the Income Tax Ordinance, 2001, therefore no amendment of income and tax liability of a taxpayer could be made by invoking sections 161/205 of the Income Tax Ordinance, 2001, when the return of income is filed which becomes a deemed assessment order to have been passed under section 120(1) of the Income Tax Ordinance, 2001.
18. It is established that deemed assessment to have been made under section 120 of the Income Tax Ordinance, 2001 holds the field and it can only be amended by order passed under section 122 of Income Tax Ordinance, 2001. It is a settled principal of law that things should be done as required under the law and as the Officer Inland Revenue (Audit) has power under section 122 to amend the assessm ent as many times as may be necessary. Admittedly the deemed assessment order stood finalized before the appellant has been declared as taxpayer in default on 29.04.2011. Therefore, the order passed under sections 161/205 of the Income Tax Ordinance, 2001, instead of 122 of the Income Tax Ordinance, 2001, in the presence of deemed order in field, is illegal. This view finds support from the decision of the learned ITAT (ATIR) reported as (2008) 98 Tax 85 (Trib.), wherein it was held as under: - "...On the other hand, Mr. Dawood Iqbal, ITP has appeared on behalf of the assessee/respondent and is supporting the impugned order of the leaned CIT (A). He is of the view that the learned CIT(A) has rightly cancelled the order passed by the Taxation Officer, as the order passed under sections 161/205 of the Income Tax Ordinance, 2001 was bad in law and contrary to the facts and record. He is of the view that the Taxation Officer was unjustified to invoke proceedings under section 161, as transactions are not covered under section 153, he has argued that Taxation Officer was unjustified to declare the assessee company as assessee in default on the transaction that already has been taxed in the hands of the recipient. He has contended that Taxation Officer was unjustified to make assessm ent under sections 161/205 on 10-01-2007 after the completion of assessm ent under section 120(1) on 20-06- 2006.
19. After considering all the above factual as well as legal position, I am of the view that the learned CIT(A) has rightly cancelled the assessment order, therefore, I find no warrant for interference in the impugned order of the learned CIT(A), which is upheld and the appeal filed by the department is dismissed "
20. Besides this, the Officer Inland Revenue while resorting to action has treated that the appellant failed to deduct withholding tax on entire payments against purchases @3.5% without citing any specific instances of payments made which exceeded the threshold limit. Such a hypothetical approach cannot be endorsed. Hence the action of the Officer Inland Revenue is not tenable and treating the appellant "taxpayer in default" is not sustainable in the eyes of law.
21. The facts of the appellant 's case are identical and the judgment, quoted supra, is squarely applicable. Respectfully following the dictum laid down by the learned ITAT(ATIR) in above referred judgment and in view of the observations embodied above, I hold that the Officer Inland Revenue was not justified to pass order under sections 161/205 of the Income Tax Ordinance, 2001. It is hereby annulled.'
8. It appears that learned CIR(A) has upheld the contention and it was held that order under section 161 is illegal in presence of deemed order under section 120 in the field. References, has been made by the learned CIR(A) to a decision of a learned single Bench of this learned Tribunal reported in 2008 PTD (Trib.) 1683.
9. As noted above, the department through learned departmental representative made an application for transferring of the case on such point which application has been granted by the then learned judicial member vide order/noting dated 13.5.2013.
22. 10.Mr. Ashok Kumar, the learned D.R vehemently argued that the learned CIR(A) has fallen in error in granting relief on the ground that that the assessment under Section 120 is in the field, when the ACIR had rightly pointed out and established that the Respondent Taxpayer has failed to establish that it has deducted tax under section 153, therefore, according to the learned D.R, ACIR was fully justified to pass an order under Section 161 read with Section 205. It was contended that the existence of order under Section 120 does not preclude the ACIR in passing the order under section 161 read with 205. He therefore, urged before us that order passed by the ACIR was valid whereas the order of CIR(A) is not sustainable in law.
11. Mr. Abdul Rahim Lakhani and Mr. Vishwa Mittar, learned A.R. for the Respondent, opposed the above arguments of the learned D.R. The learned counsel informed that there are certain imports on which tax had been collected at the rate of 1% of the assessed value. A list/reconciliation is annexed herewith with the bifurcation of imported goods that are levied at 1%, 2% and 3% along with challan, bills of entries for your examination and verification of imported raw material to Rs,102,270,048/-.
23. RAW MATERIAL PURCHASE - LOCAL:
12. The payments made under this head represent local purchase of raw material from various parties. A complete summary of party wise purchase also submitted before Inland Revenue Officer.
24. He further informed that there are certain payments that do not attract withholding tax deduction for being below threshold limit of Rs,25,000 or are brought under subsection (5)(a)(i) of section 153 of the Income Tax Ordinance, 2001.
25. PACKING MATERIAL PURCHASE - LOCAL:
13. The learned counsel stated that the payments made under this head represent local purchase of packing material from various parties. He said there are certain payments that do not attract withholding tax deduction due to below threshold limit of Rs,25,000, or for your information and record all the relevant documents are attached herewith. He stated that he already submitted before Inland Revenue Officer evidence in support of each and every payment/purchases and taxpayer has discharged his legal obligation and the order passed under sections 161/205 suffer some serious fatal errors and liable to be quashed. The Officer of Inland Revenue did not pay any heed to the detail and evidences furnished to him and the tax demand created is uncalled and unwarranted.
26. 14.The learned counsel for the taxpayer lastly argued with vehemence that once order under Section 120 is in the field, the powers - exercised by the ACIR in nullity in law. He submitted that view taken by this Tribunal in the case reported as (2008) 98 Tax 85 (Trib.) is a correct view and the action of ACIR is against 'the spirit of provision of section 122. He further submitted that no amendment of income and tax liability could be made by invoking sections 161/205. He further submitted that ACIR while resorting to action has treated the Respondent having failed to deduct tax on entire payments against purchases without citing any specific instances of payments made which exceeded the threshold, which fact has been correctly appreciated by the learned CIR(A).
27. Therefore, the CIR(A) has correctly annulled the order. He supported the order of CIR(A) with a prayer that instant appeal of the Department deserves to be dismissed and order of CIR(A) needs no interference and he prayed for upholding the order of the learned CIR (A).
15. Mr. Arshad Siraj, Amicus Curie, while submitting his arguments drew our attention to the nature of the provisions of sections 120, 122, 161 and 205 and submitted that in a fiscal statute lime are there are three D distinct types of provisions generally in every fiscal enactment, namely Charging provisions, Assessm ent provisions and Collection provisions Elaborating his paint he submitted that the Charging provisions, are such provisions which relate to the levy or charge of the tax, which usually state that tax is to be levied on what matter, or goods or income and in which manner and at what rate and matters relevant thereto. Assessment provisions which deal with the assessm ent. calculation or quantification of the tax for the purposes of determining the amount of tax due and payable or which has escaped collection or has been under assessed or assessed at a lower rate or on which excessive relief or refund has been allowed. In such provisions an element of addition of liability is woven into and such provisions are impregnated with the potential of adding to the liability of the Taxpayer. therefore same are not mere matter of procedure but have substantive provision as well. In respect of Collection provisions it has been argued that such provisions which relates to the mode and manner of Mr 'leery or collection/recovery of the tax.
28. Reliance has been place on the judgment of Hon'ble Lahore High Court in the case of Friends Sons v. Deputy Collector Central Excise and Sales Tax, Lahore reported in PLD 1989 Lah. 337. Further Reliance has been placed on the judgment of Hon'ble Supreme Court of Pakistan in the case of Noon Sugar Mills Ltd. v. Commissioner of Income Tax, Rawalpindi reported in PLD 1990 SC 1156 = 1990 PTD 768 = 1990 MLD 1977. He therefore submitted that under the Income Tax Ordinance, 2001, one finds all the three distinct types of provisions. He referred to the provisions of sections 4, 5, 6, 7 and 8, 113 which are charging Sections. Whereas the provisions of sections 120, 121, 122, 122C, 123, 125 and 221 are in nature of second type i,e, Assessments. He highlighted that 137, 138, 138A to 145 and 161 are of collection or Recovery in nature. He is therefore of the view that in so far as present case is concerned, the provisions of Section 120 or 122 are distinct and separate from the recovery provisions of sections 161 and 162 respectively. He submitted that legislature has categorized the provisions of section 161 as a recovery provisions as it is amply established from the language of the said provision.
29. 16.He further submitted that in his view in Section 161 there are two words used by legislature which are of prime importance. The First one is "fails" and the other one is ."liable". He submitted connotation of word failure on the strength of the judgments reported as (1956) 30 ITR 57 and (1961) 41 ITR 76 SC India. He also relied on the judgment of Hon'ble Supreme Court of Pakistan in the case reported as PLD 1991 SC 308. Pointing out the significance of word liable, he relied upon the judgment of Hon'ble Supreme Court of Pakistan reported as PLD 1990 SC 1156 = 1990 PTD 768 = 1990 MLD 1977.
30. 17.It has been submitted that subsection (1) of section 161 can only be invoked when a failure to collect or deduct tax is established, Since the responsibility to collect or deduct tax is in respect of a transaction of payment, each transactional failure has to be determined which is a condition precedent for initiation and conclusion of the proceedings under section 161. Any order which lacks determination of a transactional failure of collection or deduction of tax as required by law, shall not be sustainable in law.
31. 18.It has been further submitted that existence of failure is of paramount importance. He submitted that there should be a determination of transaction failure of non-withholding of tax or collection of tax. In some cases if in the assessment of income nature of certain transaction has not been ascertained, therefore in the proceeding under section 161 the nature of transaction cannot be adjudication for the reason that provision of section 161 are recovery in nature and exercised to recover the tax only arises, when there is an obligation to deduct and collect tax. The act of failure would not be attracted when there is difference of opinion on the interpretation of certain statutory provisions and nature of transaction unless same has been determined in an assessm ent of income.
32. 19.While referring to the decision cited by the learned CIR(A), it has been opined by Mr. Arshad Siraj that cited case reported as 2008 PTD (Trib.) 1683 with greatest respect is a decision which is per in-curium. The decision is per in-curium for the reason that firstly in the said decision reference has been made to certain decisions namely 2003 PTD (Trib.) 1167 and 2005 PTD 1303 which related to the provisions of repealed Income Tax Ordinance, 1979 which has no relevance with the issue of order of assessm ent of income under section 122 of the Income Tax Ordinance, 2001. In the said judgments, discussion was in respect of action to be taken under section 52 read with the provisions to call for the books of accounts under section 61 of the repealed Income Tax Ordinance, 1979 and cases were examined with the point of view of the time limit to call for the books of accounts. The learned Amicus Curie argued and submitted that as to whether question of limitation applies in respect of the provisions for calling the books of account under section 174 in respect of action under section 161 is concerned, very recently Hon'ble High Court of Sindh in the case of Habib Bank Limited v. Federation of Pakistan reported as 2013 PTD 1659 has elaborated in detail with reference section 174 of the Income Tax Ordinance, 2001. He therefore concluded his arguments by submitting that the proceedings under section 161 are distinct in character from the proceedings under section 120 or 122 and, therefore it can be invoked separately despite the fact that the deemed assessm ent under section 120 or an amended assessment under section 122 has been made and are in the field.
20. The arguments of the learned counsel have been considered and available record as has been perused. The facts as gathered from the record are that ACIR issued a show-cause notice under section 161 read with 205 alleging that the Respondent was required to deduct tax on purchases made during the year. In response to the show-cause notice, the taxpayer Respondent submitted a reply that the proceedings initiated under sections 161/205 of the Income Tax Ordinance, 2001 are ab initio illegal, after filing of return of income, which is a deemed order under section 120 of the Income Tax Ordinance, 2001. It was also contended that the law does not permit to make such action after filing of return, therefore, a request was made to drop the proceedings.
33. The taxpayer Respondent however, submitted details of purchases. An order under sections 161/205 was passed, in which the ACIR held that taxpayer has not been able to establish tax deduction on purchases of Rs,43,352,402, therefore, accordingly an amount of Rs,1,517,344 was held to be recoverable along with default surcharge of Rs,329,240 under section 205.
34. 21.The Taxpayer Respondent preferred appeal under section 127 against said treatment. The CIR(A) vide appellate order dated 27.9.2011 annulled the order. The relevant findings are reproduced at the appropriate place in this order.
35. 22.In order to understand and resolve the issue, firstly the nature of the provisions has to be ascertained and thereafter form an opinion on the subject controversy. We fully agree with the Mr. Arshad Siraj Advocate, the learned Amicus Curie, that as per well established principles, as laid down by the Superior Courts including Hon'ble Supreme Court of Pakistan, there are three distinct type of provisions generally in every fiscal enactment. The Charging provisions, which relate to the levy or charge of the tax, which usually state that tax is to be levied on what matter, or goods or income and in which manner and at what rate and matters releyant thereto.
36. 23.The Assessm ent provisions, which deal with the assessment, calculation or quantification of the tax for the purposes of determining the amount of tax due and payable or which has escaped collection or has been under assessed or assessed at a lower rate or on which excessive relief or refund has been allowed. In such provisions an element of addition of liability is woven into and such provisions are impregnated with the potential of adding to the liability of the Taxpayer, therefore same are not mere matter of procedure but are substantive provision as well.
37. 24.The Collection provisions, which relates to the mode and manner of recovery or collection of the tax.
25. Reliance is place on the judgment of Hon'ble Lahore High Court in the case of Friends Sons v.
38. Deputy Collector Central Excise and Sales Tax, Lahore reported in PLD 1989 Lah. 337. Reliance is also placed on the judgment of Hon'ble Supreme Court of Pakistan in the case of Noon Sugar Mills Ltd v.
39. Commissioner of Income Tax, Rawalpindi reported in PLD 1990 SC 1156 = 1990 PTD 768 = 1990 MLD 1977 where their lordships at page 89 in paragraph 11 inter alia also referred to such principles. The observations are being reproduced for the convenience and ready reference as under: At this juncture, it may be pertinent to refer to the famous observation of Lord Dunedin in the case of Whitney v. Inland Revenue Commissioners (1926 A.C. 37) relevant at page 52, which read as follows:-- "My Lords, I shall now permit myself a general observation. Once that it is fixed that there is liability, it is antecedently highly improbable that the statute should not go on to make that liability effective. A statute is designed to be workable, and the interpretation thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. Now, there, are three stages in the imposition of a tax, there is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessm ent. Liability does not depend on assessment. That, exhypothesi has already been fixed. But assessm ent particularizes the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay."
40. The above observations were quoted with approval by Hamoodur Rahman, J. in the case of Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and another (PLD 1962 SC 335) as follows:- "Mr. Brohi, nevertheless, maintained that the Court had omitted to take into account the fact that by reason of the change introduced by the late Constitution the Controller of Estate Duty, who was an officer of the Central Government, would not be competent after the coming into force of the late Constitution to continue to collect estate duty in respect of agricultural lands, even though it may have accrued due before the coming into force of the late Constitution, for, the executive authority of the Federation extended only to matters with respect to which it could make laws. This argument, though attractive cannot, in my opinion, be accepted, for, it fails to take into account the distinction between the charging and the machinery provisions of a taxing statute. The liability to pay the tax arises by virtue of the charging sections alone, though quantification of the amount payable may be postponed. As observed by Lord Dunedin at page 110 in the case of Whitney v. The Commissioner of Inland Revenue (10 TC (HL) 88), "there are three stages in the imposition of a tax : there is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessm ent. That, ex-hypothesi has already been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay."
26. Examining the provisions of Income Tax Ordinance, 2001, one also finds that there exist three distinct types of provisions. The First one being the charging provisions, which usually state that Tax is to be levied on what matter or goods or income and in which manner and at what rate etc. 27.Second is the assessm ent provisions, which deal with the assessment, calculation or quantification of the tax for the purposes of determining the amount of tax due and payable or which has escaped collection or has been under assessed or assessed at a lower rate or on which excessive relief or refund has been allowed. In such provisions an element of addition of liability is woven into and such provisions are impregnated with the potential of adding to the liability of the Taxpayer, therefore same are not mere matter of procedure but are also substantive provision as well.
41. 28.The third provision is collection or recovery provision, which relates to the mode and manner of receipt or collection of the tax.
42. 29.Under the scheme of law provided under the Income tax Ordinance 2001, Section 4 is primarily a charging section along with other charging sections added in the statute from time to time.
43. Whereas under the Ordinance, procedure of assessment starts with furnishing of a return of income for a tax year by the persons mentioned in section 114 and section 115 respectively.
44. 30.In so for as a complete return furnished by a person under the provisions of subsection (2) of section 114 is concerned, Section 120 stipulates that a complete return so furnished (other than revised return under subsection (6) of section 114) for a tax year shall be deemed for all purposes of Income Tax Ordinance, 2001 to be an assessment issued to the tax payer by the Commissioner on the day the return was furnished. The Commissioner shall be deemed to have made an Assessm ent of taxable income for that year and the tax due thereon, equal to those respective amounts specified in the return so furnished.
45. 31.In case return of income furnished by a person is not complete, the Commissioner shall issue a notice to the tax payer informing him of deficiencies (other than incorrect amount of tax payable on taxable income, as specified in the return, or short payment of tax payable) and the Commissioner shall direct the tax payer to provide such information, particulars, statement or documents on the date specified.
46. 32.If the tax payer fails to comply with the terms of the notice, the incomplete return so furnished shall be deemed to be as an invalid return as if it had not been furnished.
47. 33.In case the tax payer complies with the terms of the notice, the return furnished shall be treated to be complete on the day it was furnished and shall be treated to have been an assessm ent of taxable income as provided under subsection (1) of section 120. It will be important to observe that the entire exercise envisaged under section 114 read with section 120 is in respect of taxable income and tax thereon. Subsection (6) of Section 114 gives discretion to any person having furnished a return to file revised return if he discovers any omission or wrong statement in the return subject to conditions laid down in said subsection.
48. 34.Under the provisions of subsection (3) of section 122 where a tax payer furnishes a revised return under subsection (6) or (6A) of section 114, the Commissioner shall be deemed to have made assessm ent of taxable income and tax payable thereon as set out in the revised return and the tax payer's revised return shall be deemed to for all purposes of Income Tax Ordinance, 2001 to be an amended assessm ent order issued to the tax payer by the Commissioner on the day on which revised return was furnished.
49. 35.Here too, it will be noted that scheme of law of revised return also speaks of assessment of taxable income and tax payable thereon.
50. 36.The provisions of Section 115 deals with Persons not required to furnish a return of income.
51. Subsection (3) of Section 115 stipulates that persons mentioned therein shall not be required to furnish a return of income. Whereas subsection (4) of Section 115 requires that where person's income is subject to final taxation under section(s) 5, 6, 7, 148, 151 and 152 and subsection (3) of section 153, Sections 154, 156 and 156A, subsection (3) of section 233 or subsection (3) of section 234A shall not be obliged to furnish a return for a tax year but shall furnish to the Commissioner a statement showing such particulars relating to the person's income for the tax year in such form and verified in such manner as may be prescribed.
52. It will be also noted here too that the stipulation under subsection (4) of Section 115 also speaks of the person's income.
53. 37.Under the provisions of subsection (3) of Section 168 read with its Explanation further read with subsection (1) of section 169, an assessment shall be treated to have been made under section 120.
54. The Explanation to subsection (3) of section 169 defines the expression "An assessment shall be treated to have been made under section 120". Clauses (a) and (b) of the said Explanation stipulates that the Commissioner shall be taken to have made an assessment of income for the tax year, and the tax due thereon equaled to those respective amounts specified in the return or statement under subsection (4) of section 115 and a return or the statement under subsection (4) of Section 115 shall be taken for all the purposes of the Income Tax Ordinance, 2001 to be an assessm ent order. It is noticeable that these provisions of law speak of an assessment of income.
55. 38.While examining section 122, we find that it provides two methods of amendment of assessm ent or further amendment of assessment. It provides amendment of an assessment order treated as issued under Section 120 or issued under section 121 or issued under section 122C by making such alterations or additions as the Commissioner considers necessary. The first method is provided under. subsection (5) which action can be taken only on the basis of definite information acquired from audit or otherwise. The other method is provided under subsection (5A) of section 122 where the Commissioner may make or causing to be made, such enquires as he deems necessary, amend or further amend an assessment order if he considers that the assessment Order is erroneous so far as it is prejudicial to the interest of revenue.
56. 39.As observed by us in the preceding paragraph, an assessment order treated as issued under section 120 deals with taxable income and tax thereon in respect of section 114 whereas for the purpose of section 115 it deals with an assessment of income and tax due thereon, as such the provisions of section 122 are related to such amendment of assessment of income, which also include amend of an assessm ent Issued under sections 121 and 122C. We may at this stage refer to the judgment of Hon'ble Supreme Court of Pakistan in the case of Commissioner of Income Tax v.
57. Messrs Eli Lilly Pakistan (Pvt.) Ltd. reported in 2009 SCMR 1279, where their lordships have observed that the section 122 is impregnated with the potential of adding to the liability of the taxpayer, therefore, the same is not a mere matter of procedure.
58. 40.We have heard the learned D.R. appearing on behalf of the department, Mr. A.R. Lakhani, the learned counsel for the Respondent as well as Mr. Arshad Siraj, the learned Senior Advocate appearing as Amicus Curie.
59. 41.It has been rightly pointed out by Mr. Arshad Siraj learned Advocate appearing as Amicus Curiae that provisions of section(s) 137 to 146, 161, 162 and 163 are of Collection or recovery in nature.
60. As in the present case, the ACIR has invoked the provisions of Section 161, it will be appropriate to reproduced Section 161 for the convenience and ready reference.
61. "Section 161. Failure to pay tax collected or deducted.- (1) Where a person--- (a)fails to collect tax as required under Division II of this Part [or Chapter XII] or deduct tax from a payment as required under Division III of this Part [or Chapter XII] [or as required under section 50 of the repealed Ordinance]; or (b)having collected tax under Division II of this Part [or Chapter XII] or deducted tax under Division III of this Part [or Chapter XII] fails to pay the tax to the Commissioner as required under section 160, [or having collected tax under section 50 of the repealed Ordinance pay to the credit of the Federal Government us required under subsection (8) of section 50 of the repealed Ordinance.] the person shall be personally liable to pay the amount of tax to the Commissioner [who may [pass an order to that effect and] proceed to recover the same].
62. [(1 A) No recovery under subsection (1) shall be made unless the person refer to in subsection (1) has been provided which an opportunity of being heard.
63. (1 B) Where at the time of recovery of tax under subsection (1) it is established that the tax that was to be deducted from the payment made to a person or collected from a person has meanwhile been paid by that person, no recovery shall be made from the person who had failed to collect or deduct the lax but the said person shall be liable to pay [default surcharge] at the rate of eighteen per cent per annum from the date he failed to collect or deduct the tax to the date the tax was paid.]
(2) A person personally liable for an amount of tax under subsection (1) as a result of failing to collect or deduct the tax shall be entitled to recover the tax from the person from whom the tax should have been collected or deducted
42. It will be noted from the text of section 161 that it clearly stipulates that it is a provision of law provided by the legislature to recover the tax where a person has failed to collected as required under Division-II of Part-V of Chapter-X or Chapter-XII or has failed to deducted tax from a payment as required under Division-III of Part-V of Chapter-X or Chapter-XII or as required under section 50 of the repealed Income Tax Ordinance, 1979. Such provision is attracted when the person has failed to collect or deduct tax as required by aforesaid provisions.
64. It also stipulates recovery of collected tax under Division-II of Part-V of Chapter-V or Chapter-XII or tax deducted under Division-III of Part-V of Chapter-V or Chapter-XII from a person who has collected or purported to have collected tax under Division-II of Part-V or Chapter-XII or has deducted or purported to have deducted under Division-III of Part-V or Chapter-XII but has failed to pay such collected or deducted tax to the Commissioner as required under section 160.
65. 43.The perusal of subsection (1A) expressly provides that no recovery under subsection (1) of section 161 shall be made unless the person referred to in subsection (1) has been provided with an opportunity of being heard.
66. 44.Likewise, subsection (1B) stipulates that where at the time of recovery of tax wider subsection
(1) it is establish that tax was to be deducted from the payment made to a person or collected from a person, has in the meanwhile been paid by that person, no recovery shall be made from the person who had failed to collect or deduct the tax but the said person shall be liable to pay default surcharge at the rate of 12% (as amended by Finance Act, 2015 earlier it was 18%) per annum from the date the said person failed to collect or deduct the tax to the date tax was paid. Subsection (2) stipulates that the personally liable for an amount of tax under subsection (1) as a result of failing to collect or deduct tax shall be entitled to recover the tax from the person from whom the tax should have been collected or deducted.
67. 45.From the above analysis there is no doubt in our minds that the nature of the provision of section 161 is of recovery in nature, the third type of provision available in a fiscal statute.
46. We may further observe that subsection (1) of section 161 can only be invoked when a failure to collect or deduct tax is established. Since the responsibility to collect or deduct tax is in respect of a transaction of payment, each transactional failure has to be determined which in our view is a condition precedent for initiation and conclusion of the proceedings under section 161. Any order which lacks determination of a transactional failure of collection or deduction of tax as required by law, shall not be sustainable in law.
68. 47.We may highlight another aspect that existence of failure is of paramount importance. As observed above, there should be a determination of transaction failure of non-withholding of tax or collection of tax. In some cases if in the assessment of income nature of certain transaction has not been ascertained, in the proceeding under section 161 the nature of transaction cannot be adjudication for the reason that provision of section 161 are recovery in nature and exercised to recover the tax only arises when there is an obligation to deduct and collect tax. The act of failure would not be attracted when there is difference of opinion on the interpretation of certain statutory provisions and nature of transaction. Nature of transaction has to be ascertained and determined in the assessm ent. At this stage reference can be made to the decision of this Tribunal reported as 2003 PTD 1167 where it has been held that provisions of Section 161 are not charging provisions.
69. Reference is also made to the judgment of Hon'ble High Court of Sindh in the case of Al-Haj Industries v. Collector of Customs where it has been held that collection of tax and assessment are not one and the same.
70. 48.It has been rightly argued by Mr. Arshad Siraj Advocate that in section 161 there are two words used by legislature which are of prime importance. The First one is "fails" and the other one is "liable". The expression "failure" has been interpreted by Mr. Justice Chagla (the then Chief Justice of Bombay High Court) who observed that "Failure must connote that there is an obligation which has not been carried out.......
71. Reliance in this regard is placed on judgment in the case of Pannalal Nandlal Bhandari v.
72. Commissioner of Income Tax reported in (1956) 30 ITR 57. The said judgment has been approved by the Hon'ble Supreme Court of India in (1961) 41 ITR page 76.
73. 49.Reverting back to the connotation, the word "fail" has been interpreted by the Hon'ble Supreme Court of Pakistan in several cases.
74. 50.The leading case is the case of M/s. R.C.D. Bowl Barring Ltd. Sindh v. Employees Social Security Institution, Karachi reported in PLD 1991 (SC) 308. In the said case, their Lordships were examining the word "fail" as used in Section 23 of the West Pakistan Employees Social Security Ordinance, 1965.
75. Their Lordships held at page 315 placidum D' (which is infact a quotation from a earlier judgment reported as 1982 PLC 1062) where their Lordships have held that reasonable interpretation of the word "fail" should be in excusable neglect or omission. We are reproducing the relevant passage for your honour's convenience and ready reference.
76. "But that proposition is not conclusive of the question for determination before us. In the case of Sindh Employees Social Security Institution v. Silva Industries. Limited, Karachi (1982 PLC 1062), in spite of having acknowledge the above proposition, one of us (Ajmal Mian, J.) was required to decide somewhat similar question in the case in which the contribution was not paid by the establishment in view of the letter of Director of the Institution which clarified that no contribution was payable on the particular allowance in question and which letter was acted upon for a period of 4 years. It was held that the word "used in section 23 is fail and not default". Consequently the penal provisions of section 23 would be attracted even if there is no willful default in the payment of contribution on due date, because the words "fail" and "default" are not synonymous. However, in the context of the facts of that case, the following significant observation was made: "In my view from the above reply as logical corollary it must follow, that if an employer can point out that there was no failure on his part to make the contribution and in_fact nonpayment was on account of act/omission on the part of the staff of the Institution he will not be liable to pay the amount of increase. In my view The reasonable interpretation of word "fail" used in the aforesaid section 23 of the Ordinance will be that in order to attract the penal provision of the levy of increase, contained in the above section, there should be inexcusable neglect or omission on the part of employer to pay contribution on an item of wages / salary on which contribution is payable and there should not be any contributory act / omission on the part of the Institution resulting in the non-payment of the contribution."
77. In the concluding part of the judgment the finding was summarized in the following terms"
78. "It will be unjust and improper to levy a penalty in the form of an increase in the instant case as in my view there has not been any failure on the part of the respondents within, the meaning of section 23 of the Ordinance."
51. The other expression used in section 161 is "liable". It connotes subject to an obligation, answerable legally. The Hon'ble Supreme Court of Pakistan in the case of Noon Sugar Mills Ltd. v.
79. Commissioner of Income Tax Rawalpindi reported as. PLD 1990 SC 1156 = 1990 PTD 768 = 1990 MLD 1977 while examining the provisions of section 18 of Income Tax Act, 1922 examined the connotation from various decisions and dictionary meanings. After Examining as aforesaid the Hon'ble Supreme Court extracted the meaning of the word liable in the following terms.
80. "The above quoted definitions of word "liable" indicate that in inter alia carries the meaning as "subject to an obligation", "that for which one is liable", a debt, "bound or obliged in law or equity", "responsible", "chargeable", "answerable legally subject or amenable to", to", 'compellable to make satisfaction, compensation or restitution".
81. It is also evident that the meaning of the word "liable" is not restricted to denote an absolute and fixed liability but has the meaning expressed by phrase "within the range of possibility".
82. 52.In view of above examination of various provisions of Income Tax Ordinance 2001, we arc of the firm opinion that the assessm ent order framed under Section 120 or 122 are distinct from the provisions of Section 161. Former being of second type of fiscal statute viz. an assessment of income and tax, whereas later is an order for Collection or recovery of tax.
83. 53.Having reached the above conclusion, we would now examine the impugned order and decisions relied by the CIR(A) in his order and also relied by the learned counsel for the taxpayer Respondent.
84. 54.The relevant findings given by learned Commissioner Inland Revenue (Appeals) are being reproduced herein bellow.
85. "The arguments advanced by he learned AR of the appellant are considered. Impugned order is perused. The contention of the learned AR of the appellant seems correct that as the return of income for the tax year 2010 was filed on 13.11.2010 and the assessment stands completed under section 120(1)(b) of the Income Tax Ordinance, 2001 on filing of return and therefore, the Officer Inland Revenue was not justified to pass the order under sections 161/205 on/after 29.04.2011 i,e, after the deemed order passed under section 120(1) of the Income Tax Ordinance, 2001, the order under sections 161/205 is illegal and against the spirit of provisions of Section 122 of the Income Tax Ordinance, 2001.
86. This view further fortifies with the observation of the Officer Inland Revenue embodied at page 1 para 1 of the impugned order, which reads as under:- "...The return of income for the Tax Year 2010 filed by the tax payer reflects that he has made purchases for the period from July 2009 to June 2010 at Rs, 114,968,668/- therefore, he was liable to deduct tax @ 3.5% at Rs, 40, 23,903/- at the time of making payments on account of purchases, but the taxpayer failed to deduct tax under section 153 of the Income Tax Ordinance, 2001..."
87. Therefore, this establishes the contention of the AR of the appellant is valid, that Officer Inland Revenue resorted to action under sections 161/205 on assumptions and surmises after filing of return of income under section 114(4) of the Income Tax Ordinance, 2001, which is a deemed assessm ent order in terms of Section 120 of the Income Tax Ordinance, 2001. The only recourse available under the law is to amend the deemed order under section 122 of the Income Tax Ordinance, 2001.
88. Consequent upon the return of income filed for the tax year under appeal, these findings of the Officer Inland Revenue tantamount to amendment of the deemed order under section 120 of the Income Tax Ordinance, 2001. Since the power to amend an assessment order rests in the section 122 of the Income Tax Ordinance, 2001, therefore no amendment of income and tax liability of taxpayer could be made by invoking sections 161/205 of the Income Tax Ordinance, 2001, when the return of income is filed which becomes a deemed assessment order to have been passed under section 120(1) of the Income Tax Ordinance, 2001.
89. It is established that deemed assessment to have been made under section 120 of the Income Tax Ordinance, 2001 holds the field and it can only be amended by order passed under section 122 of Income Tax Ordinance, 2001. It is a settled principal of law that things should be done as required under the law and as the Officer Inland Revenue (Audit) has power under section 122 to amend the assessm ent as many times as may be necessary. Admittedly the deemed assessment order stood finalized before the appellant has been declared as taxpayer in default on 29.04.2011. Therefore, the order passed under sections 161/205 of the Income Tax Ordinance, 2001, instead of 122 of the Income Tax Ordinance, 2001, in the presence of deemed order in field, is illegal. This view finds support from the decision of the learned ITAT (ATIR) reported as 2008 PTD (Trib.) 1683 wherein it was held as under:-
46. On the other hand, Mr. Dawood Iqbal, ITP has appeared on behalf ' of the assessee/respondent and is supporting the impugned order of the learned CIT (A). He is of the view that the learned CIT(A) has rightly cancelled the order passed by the Taxation Officer, as the order passed under sections 161/205 of the Income Tax Ordinance, 2001 was bad in law and contrary to the facts and record. He is of the view that the Taxation Officer was unjustified to invoke under sections 161, as transactions are not covered under section 153, he has argued that Taxation Officer was unjustified to declare the assessee company as assessee in default on the transaction that already has been taxed in the hands of the recipient. He has contended that Taxation Officer 'was unjustified to make assessm ent under sections 161/205 on 10/01/2007 after the completion of assessment under section 120(1) on 20-06-2006.
90. After considering all the above factual as well as legal position, I am of the view that the learned CIT(A) has rightly cancelled the assessment order, therefore, I find no warrant for interference in the impugned order of the CIT(A), which is upheld and the appeal filed by the department is dismissed."
91. Besides this, the Officer Inland Revenue while resorting to action has treated that the appellant failed to deduct withholding tax on entire payments against purchases @ 3.5%, without citing any specific instances of payments made which exceeded the threshold limit. Such a hypothetical approach cannot be endorsed. Hence the action of the Officer Inland Revenue is not tenable and treating the appellant "taxpayer in default" is not sustainable in the eyes of law.
92. The facts of the appellant's case are identical and the judgment, quoted supra, is squarely applicable. Respectfully following the dictum laid down by the learned ITAT (ATIR) in above referred judgment and in view of the observations embodied above, I hold that the Officer Inland Revenue was not justified to pass order under sections 161/205 of the Income Tax Ordinance, 2001. It is hereby annulled.
55. Perusal of the above order would show that learned CIR(A) has opined that the ACIR was not justified to pass an order under sections 161/205 on or after 29.4.2011 being the date of deemed order under section 120(1) therefore he held that the order under sections 161/205 is illegal and according to him since the power to amend and assessment rest in section 122, therefore not amendment of income and tax liability could be made by invoking sections 161/205 when the return of income is filed which becomes a deemed assessment order to have been passed under section 120(1).
93. 56.In support of such view the CIR(A) has relied upon the decision of this Tribunal reported as 2008 PTD (Trib.) 1683. The CIR(A) has further held that ACIR while resorting to action under section 161 without citing instance payment made which exceeded the threshold limit, he therefore, held that action of ACIR is not tenable and not sustainable.
94. 57.Since the view taken by the CIR (A) is based upon decision of this Tribunal. Reported as 2008 PTD (Trib.) 1683 it will relevant to examine such decision. The referred case is of a private Ltd.
95. Company engaged in the business .of foreign currency, its original assessment for Tax year 2005 year under review was finalized under section 122(1) on 26.6.2006. The taxation officer as per assessm ent order on the bases of documents and details furnished during the audit proceeding observed that taxpayer has committed default of not deducting tax under sections 153 and 155, therefore, the taxpayer company was confronted through show-cause notice to explain as to why it may not be treated as taxpayer in default. The taxpayer filed detailed reply and after considering such reply as un-satisfactory, the Officer treated the taxpayer company in default by invoking the provisions of section 161 and also charged additional tax under section 205. Against which action the taxpayer preferred in appeal before CIR (A) who cancelled the order with observations that the tax payer company has been treated in default by invoking provisions of section 161 with regard to purchase of fixed assets during the relevant tax year 2005 as contested that there was neither a supply nor the subject matter was goods. Reliance was placed on the judgments namely 1999 PTD 4028 and 2006 PTD 1888. It was also observed that assessee's sister concerned has already discharged responsibility under sections 50(4) and 52 on the same transaction there would be no justification with the taxation officer having justification over the withholding agent as assessee in default. The CIR (A) in this case held that invocation of section 161 was not legally sustainable in law and additional tax is imposed for the same reasons was declared to be void ab initio, therefore, the order was cancelled. On behalf of the department it was contested that there was no justification to cancel the order as according to the DR it was duty of the taxpayer company to deduct tax as warranted under law. On facts it was argued that reference to sister concerned orders passed under section 52 of the repealed Ordinance, 1979 was not proper as the taxpayer company had failed to deduct tax under sections 153 and 155 on account of various transactions therefore it was argued that taxation officer has rightly invoked the provision of section 166 and cancellation of the order by CIR (A) was not justified. On the other hand assessee/Respondent A.R supported the order of cancellation by CIR (A) on the argument that order under sections 161/205 was contrary to the facts and record. It was inter alia argued that the Taxation Officer was in justified to declare the assessee company as assessee in default on the transactions that already has been taxed in the hands of the recipient. It was further argued that Taxation Officer was in justified to make assessm ent under sections 161/205 on 10.1.2007 after the completion of assessment under section 120(1) on 20.6.2006.
96. 58.The learned judicial member after hearing the arguments of both the parties examined the case. He held that there was neither a supply nor the subject matter was goods perhaps these observation were given for the reason that during the tax year 2G05 there was pure and simple transfer of capital assets therefore, was no supply of goods.
97. 59.The learned member further noted that the recipient has already discharged responsibilities under sections 50(4) and 52 on the same transaction in assessment years 2001-2002 and 2002- 2003 and referring earlier decision of this Tribunal observations were made. Lastly it was further noted by the learned member on the basis of contention of the A.R. that order under sections 161/205 is illegal on the basis of principle that such order is against the sprit of provision of section 122 reference was made to some earlier decision reported as 2005 PTD (Trib.) 13G3, 2003 PTD (Trib.)
98. 1167 on such basis and after considering legal and factual position the order of CIR(A) was upheld.
99. 60.The above decision cited by learned MR (A) have been examined by us and it appears that in so far as present issue is concerned one cannot with certainty state that as to whether in the cited decision the learned member has endorsed the contention of the taxpayer's counsel that in presence of assessm ent order passed under section 120 or 122 the provision of section 161 cannot be applied.
61. However in view of the fact that we are examining such issue in the present case as observed by us in earlier paragraphs we hold that under the provisions of Income Tax Ordinance, 2001 sections 120, 121 and section 122 are part of assessment of income and tax whereas the provisions of section 161 are neither provisions for assessment of income nor same are charging provisions.
100. The provisions of Section 161 ale simplicitor in nature of collection/recovery. The provisions of assessm ent 120 and 122 are distinct and are meant for assessment of income and tax whereas provisions of Section 161 are for recovery or collection of tax. If presence of an assessment the provisions of section 161 can be invoked and section 120 or 122 does not preclude an exercise of invocation of provisions of section 161.
101. 62.We further hold that in order to invoke the provision of section 161 it is mandatory to establish through material and substance transactional failure of non-withholding of tax as mentioned in section 161 itself as the nature of provision of section 161 are of recovery in nature, and nature of transaction cannot be determined unless nature of such transaction has already been determined in an assessm ent under the provisions of law.
102. 63.After having decided and resolved the issue, we find that in the present case, the ACIR has not highlighted each transactional failure from the evidence produced by the taxpayer respondent. As such it will be meet the ends of justice to remand the matter with the direction to the extent the factual enquiry for identifying the failure envisage in the provision of section 161 providing adequate opportunity of being heard. The objection of the taxpayer that an order under section 161 cannot be made in presence of order under section 120 or 122 for the reasons recorded earlier is hereby rejected.
103. 64.Before parting with the judgment we highly appreciate the valuable assistance of senior counsel Mr. Arshad Siraj as amicus curie who rendered the precious services and assisted the Court by making detailed submissions, research work, case laws for deciding the various points involved in this full bench judgment.