ISLAMABAD: Lahore High Court (LHC) has directed the Federal Board of Revenue (FBR) to constitute a body of experts for giving opinion on future legislation in the light of legal and constitutional principles settled by courts to avoid such legislation being struck down.
According to an order of the LHC in the matter of Defence Housing Authority, the LHC declared that the enhanced rates of withholding tax on late filers of income tax returns would not be applicable on those taxpayers whose returns prior to tax year 2024 were filed late.
The LHC order stated, “It may be pointed out that the FBR would be well advised to constitute a body of experts for rendering opinion on future legislation/notifications in the light of legal and constitutional principles settled by the courts in order to avoid such legislation being stuck down.
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This puts unnecessary burden on courts and impedes revenue collection. The FBR should also hire the services of expert draftsmen to frame the legislation/notifications in a manner that the ordinary public understand it“, LHC order added.
The petitioner is a statutory authority and is engaged in development of real estate projects. It is liable to pay advance tax/transitional advance tax under the provisions of the Income Tax Ordinance.
The grievance raised by the petitioner relates to the retrospective operation given to the newly added provisions of the Ordinance with the result that the sales/purchase transactions carried out by the petitioner in the context of sections 236C and 236K entails higher rates of income tax as mentioned in the newly added Tenth Schedule.
The newly added provisions have the effect of visiting consequences on the past and the closed transactions which is not permissible under the law.
In its order, the LHC stated that the writ petition seeks a declaration from this court to the effect that the amendments made in section 100BA read with Rule 1-A of the Tenth Schedule introduced in the Income Tax Ordinance 2001 through Finance Act 2024 are prospective in nature.
“On a proper construction of the provision to rule 1A, it cannot be said that the legislature in categorical terms expressed its intension to apply it to the returns filed in the past three years to make the taxpayers who were in default liable for tax on the rates mentioned in the Tenth Schedule.
The principles laid down in the afore-mentioned judgements dictate that the provision to rule 1A cannot be given retrospective effect so as to destroy or impair past and closed or concluded transactions“, LHC order said.
The writ petition has been allowed and it is declared that rule 1-A and its proviso do not have any retrospective operation and that these provisions shall have no effect on the taxpayers whose returns were late filed prior to the promulgation of the Finance Act 2024, LHC added.
Copyright Business Recorder, 2024
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