SYED ARSHAD ALI, J.---By way of this single judgment, we intend to dispose of this and the connected Tax Reference No.20-P/2012, filed under section 133 of the Income Tax Ordinance 2001, as similar questions of law have been raised for determination by this Court, which are reproduced herein below:-- I. Whether under the facts and circumstances of the case, the impugned Order dated 19.5.2009 of the learned Additional Commissioner is void ab initio for being corum non judice for assuming the authority under section 122(5A) which is statutorily vested in the Commissioner.
II. Whether under the facts and circumstances of the case, the impugned order dated 19.05.2009 of the learned Additional Commissioner is corum non judice and against the principle of functus officio for disturbing an Order dated 15.08.2006 which has been passed by the Taxation Officer with prior approval of the Commissioner.
III. Whether the impugned order of the learned Additional Commissioner is discriminatory in terms of Article 25 of the Constitution as all other exporters of edible oil and ghee's exports have been separately treated and their receipts had been assessed under section 154(4) ibid and tax deducted at import stage under section 148(8) ibid have been refunded to them whereas applicant has been singled out for being assessed and charged both under sections 148(8) and 154(4) ibid that is too by exercising extra-ordinary power under section 122(A) ibid. IV. Whether under the facts and circumstances of the impugned order is suffering from double taxation as the same activity which started from the importation and finished up with exportation could be taxed twice both at import and export stage.
V. Whether under the provisions of the Ordinance income de rives from export has been treated as separate block and be finally chargeable under section 154(4) ibid only.
2. Brief but essential facts of the case are that the petitioner tax payer is a public limited company deriving income from manufacturing and sale of edible hee and Oil. It filed its income tax return for the tax year 2003-2004. However, subsequently, it revised its return on 4.8.2006 in terms of section 122(3) of the Income Tax Ordinance, 2001 (hereinafter referred to as "Ordinance"). The assessed position for the tax year 2003 as provided in the assessment order is as follows:-- Income from Business:Rs.2,057,520/- Gross Income Tax: Rs.623,328/- Minimum Tax payable:Rs.4,907,228/- Tax Chargeable: Rs.4 ,907,228/- Tax deducted at Sources:
(i) under section 148(8):Rs.9,270,711/-
(ii) under section 154:Rs.1 , 185 ,182/-
(iii) under section 235:Rs.10,720/- Rs.
Tax Refunded: Rs.4,665,163/- Out of the refund claim, a refund of Rs.4,096,334/- was paid to the petitioner tax payer in two installments. The remaining amount of Rs.568,822/- was withheld on account of non-deduction of withholding tax which was charged under sections 161/110 of the Ordinance. Later, the Additional Commissioner (Audit) observed that the tax collected on the import of edible oil is the minimum part amount of the tax payable and the petitioner had not properly worked out its tax, therefore, the Additional Commissioner Audit while invoking the provision of section 155(5A) of the Ordinance had issued show cause notice to the petitioner for the tax year 2003 -2004 seeking explanation of the petitioner regarding claiming of refund of the minimum tax paid by it at the time of import of oil.The petitioner filed its reply. The Additional Commissioner Audit through order dated 19.5.2009 amended the assessm ent order for the impugned tax year and accordingly the petitioner was held liable to pay the minimum tax under section 148(8) of the Ordinance in addition to its tax payable under section 154 of the Ordinance.
Aggrieved of the order of the Additional Commissioner (Audit), the petitioner preferred an appeal before the Commissioner of Income Tax/ Wealth Tax (Appeals) Peshawar. The Commissioner of Income Tax (Appeals) allowed the appeal of the petitioner vide order dated 22.8.2009. The Revenue challenged the aforesaid order of the Commissioner (Appeals) before the learned Appellate Tribunal Inland Revenue, Peshawar Bench "Tribunal". The Worthy Tribunal accepted the appeal of the Revenue vide impugned order dated 12.04.2012. The petitioner has invoked the jurisdiction of this Court under Section 133 of the Ordinance seeking determination of the aforementioned questions of law.
2. In essence, the grievance of the petitioner is twofold, first when it has paid income tax on import of raw material/edible oil under section 148(8) of the Ordinance, which according to the aforesaid section is its minimum tax then when it had exported the same goods (or portion of it after processing) and had paid income tax under section 154 of the Ordinance which tax falls within the Final Tax Regime "FTR" then in such eventuality the income tax paid at the import stage is refundable to the petitioner because it can't be taxed twice for the same goods; secondly when the order of refund was passed by the Commissioner Zone pursuant to the amended order under section 122 (3) of the Ordinance then the Additional Commissioner (Audit) had no jurisdiction under section 122(5) of the Ordinance to amend the said assessment order.
3. We first take the issue of taxability of the imported goods at two stages. It is the case of petitioner that the said impost on the same good twice amounts to double taxation which is against the spirit of the Ordinance. For better understanding the proposition it would be appropriate to reproduce both the sections of law as it was on the statute book at the relevant time.
Section 148. Imports.
(8) The tax collected from a person under this section on the import of edible oil for a tax year shall be treated as the minimum amount of tax payable by the person under this Ordinance and where the person's final tax liability exceeds the amount collected under this section the tax collected shall be credited against the final liability.
154. Exports.---(1) Every authorised dealer in foreign exchange shall, at the time of realisation of foreign exchange proceeds on account of the export of goods by an exporter, deduct tax from the proceeds at the rate specified in Division IV of Part III of the First Schedule.
(2) Every authorised dealer in foreign exchange shall, at the time of realisation of foreign exchange proceeds on account of the commission due to an indenting commission agent, deduct tax from the proceeds at the rate specified in Division IV of Part III of the First Schedule.
(3) Every banking company shall, at the time of realisation of the proceeds on account of a sale of goods to an exporter under an inland back-to-back letter of credit or any other arrangement as prescribed by the [Board], deduct tax from the amount of the proceeds at the rate specified in Division IV of Part III of the First Schedule 215.
(3A) The Export Processing Zone Authority established under the Export Processing Zone Authority Ordinance, 1980 (VI of 1980), shall at the time of export of goods by an industrial undertaking located in the areas declared by the Federal Government to be a Zone within the meaning of the aforesaid Ordinance, collect tax at the rate specified in Division IV of Part III of the First Schedule.
(3B) Every direct exporter and an export house registered under the Duty and Tax Remission for Exports Rules, 2001 provided in Sub-Chapter (7) of Chapter XII of the Customs Rules, 2001 shall, at the time of making payment for a firm contract to an indirect exporter defined under the said rules, deduct tax at the rates specified in Division IV of Part III of the First Schedule.
(4) The tax deducted under [this section] shall be a final tax on the income arising from the transactions referred to in this section.
The close perusal of section 148(8) of the Ordinance would unfold the situation as that Tax paid at the import stage is a minimum amount of tax and the importer is subject to the payment of income tax under normal tax regime as evident from the words "shall be credited against final tax liability" occurring in the aforesaid section of law. Meaning thereby that A the tax paid/imposed at the time of import, being the minimum tax is not refundable however, is to be credited towards the final liability of Tax under the normal tax regime, if the total tax liability of the assessee exceeds the minimum tax. This impost is an independent incidence of income tax governed under section 148(8) of the Ordinance. Similarly, if the same importer exports the same goods or its portion (after processing) the said transaction is again an independent transaction subject to payment of income tax, which tax fall with Final Tax Regime "FTR" under section 154(4) of the Ordinance. Both impost are independently provided by the Ordinance under different sections of law. True that it appears that the same raw material / imported goods are A subject to payment of income tax at two stages but the same appears to be the intention of legislation in very categorical words.
Indeed, it is settled law that in case a same and one income or goods if has been expressly provided by a statute to the incidence of income tax twice, then the court will give effect to it. The constitutionality/legality of double taxation of the same good / income has been very elaborately explained by the Honourable Lahore High Court in case titled D.G. Khan Cement Company Limited v. Federal Board of Revenue and others reported as 2018 PTD 287, after considering the ratio of various judgments of our own august Supreme Court and the Indian Supreme Court as well as following:- "The simple rule propounded by the Supreme Court of Pakistan was that in the absence of any prohibition or limitation by the Constitution or law, the legislature could impose tax twice over on the same amount or income. It was further held that super tax had been levied in addition to the income tax by a clear and independent provision and for whose charge assessment and recovery procedure had been provided. On the touchstone of the same principle it can be gleaned that super tax in this case as well has been imposed by a clear and independent provision bringing forth the intention of the legislature to tax twice over the same income of a certain category of taxpayers. Simply because the legislature intends to tax the same income twice over does not detract from the constitutionality of the levy as there is nothing in the Constitution which prohibits the legislature from doing so. This Court in the exercise of its constitutional powers can only place the provisions of an enactment under challenge and square it with any provisions of the Constitution in order to hold that it is ultra vires or not. No provision of the Constitution has been cited or referred to in the instant case by the learned counsel for the petitioners which will compel this Court to hold that super tax was unconstitutional. Clearly, super tax has been levied in addition to the income tax which has to be paid by the assessee although the category of assessees is different and the mode of determination for the purpose of super tax is also distinct from the one prescribed in respect of income tax. To my mind, the intent of the legislature is very clear and doubtless the legislature had consciously imposed a super tax in addition to the income tax already imposed by virtue of section 4B of the Income Tax Ordinance, 2001."
4. In view of the above, we hold that the impost of minimum tax on import of edible oil under section 148(8) of the Ordinance is an independent transaction whereas the same goods or portion thereof (after processing) if exported is another transaction subject to the incidence of income tax which fall under FTR as per section 154 of the Ordinance.
5. Moving on to the question of jurisdiction of Additional 'Commissioner (Audit) for revision of the assessm ent order under section 122(5) of the Ordinance. It is by now settled law that Additional Commissioner has been delegated the power to revise any assessment order but within the mandate and parameters of section 122 of the Ordinance as evident from plain reading of sections 209, 210, 211 of the Ordinance. Reliance can be placed on Messrs Shell (Pakistan) Ltd. Through Associate Legal Counsel v. Pakistan through Secretary Revenue Division and 2 others reported as 2013 PTD 1012. Pakistan Tobacco Company Limited v. Federation of Pakistan reported as 2016 PTD 596.
6. Now further moving on to the main ground of attack on the jurisdiction of Additional Commissioner to amend the assessment order at the time when on the basis of the said assessm ent, the Zonal Commissioner which is a higher Authority has already passed the order of refund to the petitioner. It is the case of petitioner that when on the basis of the revised assessment of the income of the petitioner under section 122(3) of the Ordinance, the Zonal Commissioner has made further order of refund of the minimum tax to the petitioner then the matter had become a past and closed transaction which could not be reopened as the Revenue had not filed any further appeal against the order of refund passed by the Zonal Commissioner.
Under the Ordinance, the power to amend the assessment order is a different concept having its own parameters as provided under section 122(5-A) of the Ordinance whereas the claim of refund is adjudicated under section 170 of the Ordinance having its own attributes. Part I of Chapter X of the Income Tax Ordinance deals with the filing of the income tax returns and Part II of the said Chapter with their assessm ents. Section 114(2) of the Ordinance narrates the procedure that a taxpayer has to follow in filing of his tax return. Section 120(1) of the said Ordinance provides that when a taxpayer files a tax return and it is complete in all respects then the same shall be taken to be assessm ent of taxable income made by the Commissioner Inland Revenue. In other words, a complete tax return upon its filing becomes assessment order of the Commissioner Inland Revenue. Under the present dispensation, mere filing of tax return is taken as assessment order made by the Commissioner Inland Revenue but that does not mean that the function of the Commissioner Inland Revenue or its delegatee to further deal with the tax returns comes to an end.
It is well within his powers and functions to scrutinize any tax return as he deems fit. He can amend the same after issuing due notice to the taxpayer and giving him an opportunity of,hearing. The power of the Commissioner Inland Revenue to amend a tax return emanates from the provisions of section 122 of the Income Tax Ordinance, 2001, though mere filing of the tax return is taken as assessm ent of taxable income made by the Commissioner Inland Revenue himself as provided in section 120 of the Income Tax Ordinance, 2001. Thus the power to revise the deeming assessment is inherent in its nature as provided in section 122 of the Ordinance. This power is not para meteria to the power to review by an authority. This power is exercised only when the commissioner is of the opinion that the assessm ent order is erroneous and prejudicial to the interest of revenue.
7. Whereas, the claim for refund is governed under section 170 of the Ordinance. For ready reference Section 170 of the Ordinance is reproduced as under:--
170. Refunds.---(1) A taxpayer who has paid tax in excess of the amount which the taxpayer is properly chargeable under this Ordinance may apply to the Commissioner for a refund of the excess.
(1A) Where any advance or loan, to which sub-clause (e) of clause (19) of section 2 applies, is repaid by a taxpayer, he shall be entitled to a refund of the tax, if any, paid by him as a result of such advance or loan having been treated as dividend under the aforesaid provision.
(2) An application for a refund under subsection (1) shall be--
(a) made in the prescribed form;
(b) verified in the prescribed manner; and
(c) made within two years of the later of -
(i) the date on which the Commissioner has issued the assessment order to the taxpayer for the tax year to which the refund application relates; or
(ii) the date on which the tax was paid. (3) Where the Commissioner is satisfied that tax has been overpaid, the Commissioner shall-
(a) apply the excess in reduction of any other tax due from the taxpayer under this Ordinance;
(b) apply the balance of the excess, .if any, in reduction of any outstanding liability of the taxpayer to pay other taxes; and
(c) refund the remainder, if any, to the taxpayer.
(4) The Commissioner shall, within [sixty] days of receipt of a refund application under subsection (1), serve on the person applying for the refund an order in writing of the decision [after providing the taxpayer an opportunity of being heard.
(5) A person aggrieved by-
(a) an order passed under subsection (4); or
(b) the failure of the Commissioner to pass an order under sub-section (4) within the time specified in that subsection, may prefer an appeal under Part III of this Chapter.
8. From the plain reading of section 170 of the Ordinance, it is evident that the claim for refund has different para-meters and yardsticks. As stated above, section 122(5A) of the Ordinance has its own limitations and para-meters, however, if the arguments of the learned counsel for the petitioner is accepted that when the Zonal Commissioner passed an order for refund pursuant to the claim made in the assessm ent order, the Additional Commissioner will have no power to amend the assessm ent order, is accepted then it will render section 122(5A) of the Ordinance redundant. Indeed it is settled law that any statutory provision which confers jurisdiction cannot be made redundant on mere assumptions or implications. Section 122(5A) has been enacted to safeguard the interest of the Revenue which cannot be clogged with such fetters which are not provided in the section itself. Needless to mention that the order, whereby, refund was allowed to the petitioner is not an issue before us. Once it is established that the impugned order of amending the original order of deemed assessment is based on correct appreciation of law then it is for the Revenue to approach the appropriate forum under the Ordinance against the order passed by the Zonal Commissioner, whereby, he allowed the refund to the petitioner.
9. Consequently, for the foregoing reasons, both these Tax References are accordingly dismissed while the questions of law formulated therein are answered in negative.