'NASIM SIKANDAR, J.---The provisions of section 139 titled "statement regarding salary" in the late Income Tax Ordinance, 1979 read as under:-- "Every person responsible for paying any income chargeable under the head "Salary" shall "on or before the first day of September in each year" furnish to the Deputy Commissioner (substituted for "Income Tax Officer" by Finance Act, (1993) or any other officer authorised in this behalf by the Central Board of Revenue, a statement in the prescribed form and verified in the prescribed manner showing:--
(a) the name and address of every person who has been paid, or to whom was due, during the preceding financial year any income chargeable under the head "salary" exceeding such amount as may be prescribed;
(b) the amount so paid, or due to such person;
(c) the amount of tax deducted from the income of such person; and
(d) such other particulars as may be prescribed. Subsequently by Finance Act, 1995 the words "on or before the first day of September in each year" and the words "in the prescribed form and verified" were omitted from the provisions. Also is sub-clause (a) the word "preceding financial year" was substituted by "period for which each statement is being furnished".
2. After the aforesaid amendment the C.B.R. Through Circular No,4 of 1995, dated 9-7-1995 in para 15 explained its view with regard to the amendments made in section 139 as well as sections 140, 141, 142 and 143 in the following words:-- "(14) Statements to Monitor Withholding Tax. Sections 139, 140, 141, 142 and 143 prescribe annual statements regarding salary, dividends and bonus etc. In order to ensure regular monitoring of withholding taxes, these sections have been amended so as to prescribe furnishing of statements at different time intervals."
3. Further, consequent upon the said amendments including section 139 through S.R.O. No,1116(I)/95, dated 23-11-1995, the Central Board of Revenue amended the Income Tax Rules, 1982. The amendment made in rule 53, prescribed 15th day of each month as specified or the due date for filing of monthly statements under these rules.
4. It appears that the Revenue in a number of cases issued notice under section 108(b) of the late Income Tax Ordinance, 1979 alleging violation of their statutory obligation to file prescribed monthly statement within due dates under section 139 read with the said Rule 53 of the Income Tax Rules, 1982. Thereafter finding the replies made to show-cause notices to be in adequate penalties of different sums keeping in view the period of default were imposed upon them.
5. In first appeal the assessees took up a number of legal objections:--
(a) Firstly, it was claimed that after amendment brought in section 139 wherein the aforesaid two phrases were omitted and the third was substituted no penalty proceedings could be initiated under section 108(b) of the late Income Tax Ordinance, 1979.
(b) Secondly, that the aforesaid amendment and the provisions of section 139 through section 143 of the late Ordinance as these existed at the relevant time did not authorize the C.B.R. To specify the due dates for filing of statements under these sections. It was further alleged that the legislature whereever so desired invariably authorized the C.B.R. To prescribe a time; two instances of sections 55 and section 50(8)(c) of the late Ordinance were quoted. In section 55 due date for filing of returns of total income was specified while in the provisions of section 50(8)(c) the C.B.R.
Was authorized to prescribe the time for the deposit of tax deducted or collected under section 50.
' Lastly it was stated that since no provisions of section 139 to 143 of the late Ordinance authorized the C.B.R. To prescribe due dates for submissions of statements required to be filed under these sections, the only conclusion could be that penalty under section 108 of that Ordinance was exigible after time allowed by the DCIT for filing such statements had expired.
6. The First Appellate Authority in all the cases before us agreed with most of the above said objections and therefore, made a direction for deletion of the penalties imposed.
7. On further appeal by the Revenue in leading cases of DCIT Wealth Tax, Cos. Circle-VII Faisalabad v. Messrs Asim Textile Mills Ltd. Faisalabad the learned Income Tax Appellate Tribunal, Special Bench Camp at Faisalabad maintained the first appellate order, dated 15-5-1998. Para-22 of the order of the Tribunal summarizes its views on the case of both the assessee as well as the Revenue and reads as under:-- "Thus on perusal of the amendments introduced by the C.B.R. Vide S.R.O. 1116(1)/95, dated 23-11- 1995; it is clearly indicated that wherever any statement was required to be furnished under a particular section, the said section was specifically inserted in the marginal note and the body of rule. Conversely, it can be taken that if no section is inserted in the marginal note and body of a rule the statement or information is not required under any particular section but it is in the sort of general requirement. The result would be that in the absence of a particular section in any rule, it would not be deemed to be requirement of that particular section and when it is read with section 108(b) of the Income Tax Ordinance, providing penalty for failure to furnish any certificate, statement, accounts or information specified in section 108, no penalty would be levied for default in the furnishing of such statement. The penalty under section 108(b) shall be levied for default in furnishing of such statements which are specifically required to be furnished in the rules under the sections specified in section 108(b). Since rule 53, the default whereof has taken place in the present case is-not required to be furnished under section 139 therefore, the Assessing Officer was not justified in imposing penalty under section 108(b) for the reason that the failure to furnish statement under rule 53 contravened the requirement of section 139 of the Income Tax Ordinance, 1979."
8. According to the Revenue through Commissioner of Income Tax/Wealth Tax Company Zone Faisalabad amongst others following question of law arises out of the said order of the Tribunal:-- "Whether under the facts and circumstances of the case, the learned Tribunal was justified to hold that the provisions of section 108(b) are not attracted in the event of non-compliance of Rule 53?"
9. After hearing the learned counsel for the Revenue in the perspective of different orders recorded by the Revenue as well as the Tribunal on the issue, we are inclined to allow the plea taken by him.
10. In the first instance learned Members of the Tribunal apparently ignored the provisions of section 165 of the late Income Tax Ordinance, 1979 which authorized the Central Board of Revenue to make rules for carrying out of the purposes of the Ordinance through notification in the official Gazette. After the substitution of certain words and phrases in the provisions of section 139 in the year 1995 the C.B.R. Exercised its power under the said provision and inter alia amended rule 53 which contained not only the mode and manner in which salary statements were to be filed but also the date by such statements were to be filed. The amendment made in rule 53 titled "monthly statement of deduction" through S.R.O. No,1116 (1)/95, dated 23-11-1995, substituted the word "forthwith" by the words "on or before 15th day of each month." At a latter stage through S.R.O.
No,1050(I)/1998, dated 13-10-1998 a further amendment was made to insert the word "required under section 139". This insertion at a subsequent stage appears to have been made to meet the aforesaid objections made by various assessees. However, even if it had not been so made we are not aware of any rule of interpretation of statutes or framing of statutory instrument which bars subordinate legislation to prescribe a time limit for doing a particular act or to submit a particular statement. The only over-rider being a bar which is contained in the superior legislation itself. Mere deletion of certain words is the provisions of section 139 did not directly or by implication barred the use of these words or their addition in the rules to be made subsequently. As the Central Board of Revenue in their Circular No,4 of 1995 explained the purpose of these amendments was to prescribe the furnishing statements at different time intervals. Also we find no merit in the view expressed by the learned Tribunal else where in the judgment that in absence of a specified date in section 139 the Deputy Commissioner of Income Tax, under section 144 could call for information and particulars and the statements required to be furnished under section 139 and in default could punish the assessee under section 108(b). The interpretation of penalty provisions under section 108 of the late Income Tax Ordinance, 1979 as made by the Tribunal is also open to exception. Their view that since the penalty provisions are invokeable only when a person without reasonable cause has failed to furnish the statement or information within the time allowed for the purpose and since no time was prescribed for submission of a salary statement in section 139, .These provisions could not be made resort to is evidently incorrect.
11. As observed earlier, the provisions of section 139 read with the power of C.B.R. To make rules under section 165 contain ample authority to make rules and to provide for a time limit for filing of a statement contemplated therein. The fact that the rule did not mention a particular provision under which it required doing of a particular act is not of much relevance when the provision itself either identifies a particular rule or allows a power for making of such rule through subordinate legislation. Similarly the mentioning of certain sections of the Ordinance in some of the Rules will not by itself mean that those rules which do not make reference to any particular provision of the Ordinance lose their efficacy and legal effect.
12. Learned counsel for the Revenue has also brought to our notice that subsequently a Full Bench of the Income Tax Appellate Tribunal reversed the said view of the learned Division Bench. Para-14 of the order recorded by the learned Full Bench on 26-6-1999 which now stands reported as 1999 PTD (Trib.) 3456 reads as under:-- "Further we are unable to subscribe to the view that the C.B.R. Does not have the powers under section 139 through 143 of the Ordinance to prescribe the due dates for furnishing the statements (supra) because such prescription in the relevant Rules is imminent for carrying out the purposes of the Ordinance. The view implied iii the finding of the Division Bench (Ibid) that the prescribed statements are not required to be furnished voluntarily but these can be called for by the DCIT by invoking the provisions of section 144 is also found to be based on improper and inadequate appreciation of the provisions of section 144 as well as the provision of section 139 through 143 of the Ordinance. For example, there is no provision under section 144 to require any employer to furnish a statement showing the names and designations of his employees to whom he has paid for the month or income year, any salaries and allowances together with the figures of amount paid. Further, it is mandatory under sections 139 to 143 for the persons specified therein to furnish the prescribed statements. Thus, the purposes of the Ordinance enumerated in sections 139 to 143 cannot be carried out without prescribing the dates by which such mandatory obligations are to be fulfilled by the specified persons. It is further evident from the provisions of section 108 of the Ordinance itself, section 108 provides that where any person has without any reasonable cause, failed to furnish, within the time allowed for the purpose, any. Certificate, statement, accounts or information under sections 51, 139, 140, 142, 143, 143-A, 143-B or 144, the Deputy Commissioner shall impose upon such person a penalty. It means that the purpose and the occasion for exercise of the power by the Deputy Commissioner under section 144 to call for the information as specified in clauses (a)(b) and (c) thereof is distinct and different from the mandatory requirements of furnishing statements, prescribed under sections 51, 139, 141, 142, 143, 143-A and 143-B. Accordingly, contrary to the finding of Division Bench in the decision (ibid), we find that it is mandatory obligation of the Central Board of Revenue under section (c) of subsection (2) of section 165 of the Ordinance to "provide for anything which is to be or may be prescribed under the Ordinance."
13. For the reasons earlier considered and in view of the fact that the Tribunal itself has reversed earlier findings on the issue, we will return a negative answer to the aforesaid questions.
Answered in negative.