MAULVI ANWARUL HAQ, J.- The petitioner feels aggrieved by a demand created by respondent No. 1 under Workers Welfare Fund Ordinance, 1971 vide order dated 16.10.1997 (Annex-B).
2. Learned counsel for the petitioner argues that in terms of Section 4(3) of the said Ordinance of 1971, the said fund is to be paid with reference to the total income reported in a return of income to be filed under Section 55 of the Income Tax Ordinance, 1979. The precise plea is that the petitioner is being assessed under the Presumptive Tax Regime under Section 80-CC of the said Income Tax Ordinance, 1979 and this regime immunes it from filing of return under Section 55 of the Income Tax Ordinance, 1979. Further contends that the amount paid as Workers Welfare Fund is to be allowed as an expense for the purpose of the assessment of Income Tax under Section 4(7) of the said Ordinance, 1971. Whereas the tax paid under Section 80CC is the final discharge and such expense is not to be allowed. The learned counsel has referred to judgment dated 1.4.2002 of a learned Division Bench of this Court in I. T.A. 447 of 1998, judgment of learned Division Bench of the High Court of Sindh reported as Worker's Welfare Fund Issues Resolved By Sindh High Court (2002 P.T.D.
14 (H.C., Karachi), judgment (2002 P.T.D. 14 (H.C., Karachi), judgment of learned Division Bench of High Court of Peshawar in the case reported as Commissioner of Income Tax Vs. Al-Karam Lamps (Pvt.) Ltd., Peshawar and others ((2O0O) 82 Tax 61 (H.C. Pesh.)) = (PCTLR 2000 (Pesh) 1119) in support of his contentions. Learned counsel for the respondent on the other hand has tried to support the impugned demand by referring to a judgment of a learned Division Bench of this Court in case Commissioner of Income Tax, Multan Vs. Allah Yar Cotton Ginning & Pressing Mills (Pvt.) Ltd.
((2O0O) 82 Tax 433 (H.C., Lah.)).
3. Under Section 80-CC(3), it is laid down that where an assessee has no income other than the income referred to in sub-section (1) in respect of which Tax has been deducted under sub-section (5-A) of Section 50, the tax so inducted, shall be deemed to be final discharge of his tax liabilities under the said Ordinance, 1979 and he is not required to file the return of total Income under Section 5. There is no denial of the fact that the petitioner is being assessed and taxed under the said Section 80-CC. I have examined the said judgments being relied by the learned counsel for the petitioner. The respective learned Division Benches of this Court, High Court of Sindh and High Court of Peshawar have laid down that the said fund is not deductible in case of such an assessee.
I may note here that in the said case reported as ((2000) 82 Tax 433 (H.C., Lah.)) a different view has been taken by this Court. This case however, was decided on 12.4.2000, however, is the said I.T.A. 447/98, decided on 1.4.2002 a learned Division Bench of this Court, Lahore, leading opinion having been delivered by my learned brother Nasim Sikandar, J. Who was also a member of the D.B. Hearing the said earlier decided case, have taken the same view taken by their Lordship of the Sindh and Peshawar High Courts, In this view of the matter, the consensus of judicial authority is in favour of the proposition being propounded by the learned counsel for the petitioner. Following the said dictums, I do hold that in case of the petitioner who is being assessed under the Presumptive Tax Regime under Section 80-CC of the Income Tax Ordinance, 1979, the said Workers Welfare Fund is not deductible. This writ petition is accordingly allowed, the impugned demand raised vide order dated 16.10.1997 (Annex B) by respondent No. 1 is declared to be without lawful authority and is accordingly set aside. No orders as to costs.