ORDER FARHAT ALI KHAN, J.M.-1. This is a departmental appeal directed against the order of learned Commissioner of Income-tax (Appeals) recorded by him in Income-tax Appeal No. 44/2-6/79-80 on 17th October, 1982. The short point involved in this appeal is as to whether wealth-tax paid 'on 30th September, 1979 is exempted under clause 83 of Second Schedule of the Income-tax Ordinance in the assessm ent year 1979-80.
2. Clause 83 of 2nd Schedule of the Income Tax Ordinance before the Schedule was amended was as follows: "83. Any amount payable by an assessee by way of wealth-tax leviable under the Wealth-tax Act, 1963 (XV of 1963): Provided that where any person for ary year-
(a) is liable to income-tax and also to the wealth-tax payable under the Wealth-tax Act, 1963 (XV of 1963);
(b) his taxable income under the Income Tax Ordinance, 1979, exceeds one hundred thousand rupees; and
(c) the aggregate amount of income-tax and wealth-tax payable him exceeds seventy-five per cent of his total income.
The income-tax payable by him shall be reduced by the amount by which the said aggregate amount exceeds seventy-five per cent of his total income".
3. Mr. A............ Js... A............. The learned Departmental Representative, in support of the appeal submitted that clause 83 was not available to the respondent as his income' in the relevant assessm ent year did not exceed Rs. 1,00,000/-. According to learned Departmental Representative, this requirement was laid down by paragraph (b) of clause 83 as reproduced above. According to Mr. A.............. e........... A........ The three paragraphs laid down in the proviso appended to clause 83 govern the latter. In other words, the contention of the learned departmental Representative is that the exemption regarding payment of wealth-tax would be available if conditions laid down in paragraphs (a)(b) & (c) of the proviso are fulfilled.
4. Mr. W.................... The learned counsel for the respondent however, contended that paragraphs (a),
(b) & (c) of the proviso did not govern the clause regarding exemption of payable wealth-tax but laid down the provision regarding the income-tax payable by an assessee which should not exceed 73% of his total income when it is paid along with wealth-tax.
5. I have heard both the learned representatives at length and have also perused the order of the Income Tax Officer as well as of the learned Commissioner of Income Tax (A). It appears that the Income Tax Officer did not allow the exemption because it was paid after the closing of the financial year.. The learned Commissioner of Income Tax (A), on the other hand, reversed the order of the Income Tax Officer on the ground that the exemption was available for any amount which was payable as wealth-tax in a chargeable year and not any amount which is actually paid.
However, in appeal before us altogether a new ground has been taken for the first time. Ordinarily I should not, have allowed it to be agit-ted as it was never canvassed at any forum before but 'as it was pertaining to the interpretation of clause 83; I allowed it to be argued before me as a pure point of law.
6. Now turning to the merits of the submissions of Mr. A.,...e......................... A...... I am afraid I do not find ary substance in it. It is true that clauses (a), (b) & (c) have been laid down in the proviso which is appended to clause 83. Nevertheless I am inclined to agree with Mr. W............................ , the learned counsel for the respondent, that they govern the concluding and not the opening part of clause 83.
Mr. A................ Je........ A......... Wanted me to gather the intention of the legislature from the text of clause 83, but I do not think that there is any ambiguity in the text of the clause which might require the intention of the legislature to be ascertained. The proviso has in fact laid down yet another concession to the tax-payer. It in fact lays down that in case of an assessee who is liable to pay income-tax and wealth-tax and his taxable income exceeds Rs. 1,00,000/- and the aggregate amount of the income-tax & wealth-tax payable by him exceeds 75% of his total income, then the income tax payable by him shall be reduced in such a way that the total of income tax and wealth tax does not exceed 75% of his total income. I am unable to see any connection between the proviso and the opening part of clause 83 except that the wealth-tax payable by the assessee has been taken into consideration when it is paid along with income-tax. It has nothing to do with the exemption which has been granted regarding wealth-tax payable under the Wealth Tax Act. I think that the submission of Mr. W................... Has merit and should be accepted. Let me also point out at this juncture that the proviso appended to clause (83) has been omitted from clause (129) of the amended 2nd Schedule of the Income-tax Ordinance. It reads:-- "WEALTH TAX (129)
Any amount paid by an assessee by way of wealth-tax under the Wealth Tax Act, 1963 (XV of 1963)".
Thus, the benefit given to an assessee by proviso appended to former clause (83) has been withdrawn.
7. Before parting with this appeal, I would like: to put on record that Mr. A.............. Je.......... A............. The learned Departmental Representative had also invited my attention to Circular No. 1 (Wealth Tax of 1979) issued by Central Board of Revenue on 15th September, 1979, but he had not produced it. Mr. W.............. The learned counsel for the respondent, had pointed out that such circular was traceable. I have also looked for it but have failed to lay my hands on it. Ws are not aware what its contents are. Let me point out, however, that it is merely a circular issued by Central Board of Revenue and it is not binding on this Tribunal. The way I have interpreted the law, its presence or absence is of no significance.
8. To conclude, I find no force in the departmental appeal and it is hereby rejected. The order of the learned Commissioner of Income Tax (Appeals) is hereby affirmed.