Legal fiction, Section 7E & Constitution

The Elahi Cotton case (it is the most misunderstood and misapplied judgement) makes absolutely clear that any item to be taxed should rationally be capable of being considered as the “income” of a citizen”—Taxing what is not ‘income’—I, Business Recorder, December 11, 2020

The recent detailed judgement of Sindh High Court (SHC), holding the newly-inserted provision, Section 7E in the Income Tax Ordinance, 2001 [“the Ordinance”], by the Finance Act, 2022, being intra vires of the Constitution of Islamic Republic of Pakistan [“the Constitution”] has again ignited a countrywide debate as to what extent the Parliament can create legal fiction in respect of the term “income” within the purview of Entry 47, Part I, Federal Legislative List (FFL) to the Fourth Schedule to the Constitution.

The SHC dismissed writ petitions by way of its short order on October 28, 2022 and reasons for the same, elaborated in its detailed order, released on website on September 26, 2022.

It is pertinent to mention that numerous writ petitions challenging Section 7E [“the impugned section”] are still pending in Lahore High Court (LHC). In these writ petitions, by way of interim order dated October 18, 2022, LHC has mentioned concession/waiver given by the Federal Board of Revenue (FBR) that extension in filing of returns by those affected by this provision would be allowed until the matter remains sub judice.

It has created an anomalous situation for taxpayers falling in the jurisdiction of SHC and LHC. In case, the Supreme Court of Pakistan does not suspend SHC’s order before the filing of income tax returns within the extended date(s), the taxpayers in the Sindh province will be required to pay this tax while those falling in the jurisdiction of LHC will enjoy the stay, offered by the FBR, until the matter is finally decided.

A holistic reading of the impugned section shows that in pith and substance it is a tax on the “fair market value” (FMV)—as defined in section 68 of the Ordinance of the immovable property situated in Pakistan, held on the last day of a tax year by a resident person. It imposes tax of 20% on “deemed income” [an amount equal to 5% of FMU, if in aggregate, value is Rs 25 million or more].

There is absolutely no doubt that the impugned section represents capital value tax on immovable property and not tax on any income derived from it. There is no nexus of “an amount equal to five percent of the FMV of “capital assets” [read immovable property] with the expression “income” as used in Entry 47, Part I of FFL to the Constitution even in its widest possible scope/import. Such a tax cannot even be imposed under Entry 50, Part I of the FLL read with Article 77 and 142(a) of the Constitution by the Federation after Constitution (Eighteenth Amendment) Act, 2010 [commonly called “the 18th Amendment”].

Under Entry 50 of the FLL, the Parliament can only resort to “taxes on the capital value of the assets, not including taxes on immovable property”. Since in pith and substance, the impugned section levies tax on immovable property treating five percent of its FMV as deemed income, it falls outside the legislative competence of the Parliament as the right to impose any kind of tax on immovable property exclusively vests with provincial assemblies under Article 142(c) of the Constitution.

The Punjab Assembly correctly read Entry 50 of Federal Legislative List and levied tax on gain of immovable property through section 9 of Finance Act 2013—see detailed discussion in ‘Constitutionality of CGT on immovable property’, Business Recorder, July 15, 2011, ‘Tax on gain of immovable property: Who is violating Constitution?’ Business Recorder, March 14, 2014, ‘Taxing capital gains’, Business Recorder, June 30, 2017 and ‘Services’ and immovable property income taxation: constitutional violation, Business Recorder, December 4, 2020.

Sindh High Court held section 7E intra vires of the Constitution intra alia on the ground that “Legal fictions create an artificial state of affairs by a mandate of the legislature. They compel everybody concerned including the courts to believe the existence of an artificial state of facts contrary to the real state of facts.

When a fiction is created by law, it is not open to anybody to plead or argue that the artificial state of facts created by law is not true, barring the only possible course if at all available is to question the constitutionality of the fiction”.

With due deference and utmost respect, it is humbly submitted that the issue relating to import and scope of the term “income” vis-à-vis misconception prevailing that National Assembly can declare anything “income” through the Finance Act, passed as Money Bill every year, in terms of Articles 73(2), 77 and 142(a) read with Entry 47 or 52, Part I, FFL, Fourth Schedule to the Constitution discussed in detail in ‘Taxing what is not ‘income’—I’ and ‘Taxing what is not ‘income’—II’ [Business Recorder, December 11 and 13, 2020] is ignored—perhaps not presented.

The contents of the above article and the following dicta laid down in the Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Finance, Islamabad [(1997) 76 TAX 5 (S.C.Pak)] have been ignored by legislators while enacting section 7E of the Ordinance, and due to lack of assistance, the honourable SHC also decided otherwise:

• Legal fictions are limited for a definite purpose that cannot be extended beyond the purpose for which they are created.

• If one is to read Entry 47, Part I of the Fourth Schedule to the Constitution of Pakistan (1973) in isolation without referring to Entry 52, it can be argued that Entry 47 does not admit the imposition of presumptive tax as the expression “taxes on income” employed therein should be understood as to mean the working out of the same on the basis of computation as provided in the various provisions of the Ordinance.

• Presumptive tax is in fact akin to capacity tax, i.e., capacity to earn. In this view of the matter, one will have to read Entry 47 in conjunction with Entry 52 which provides tax and duties on production capacity of any plant, machinery, undertaking, establishment or installation in lieu of the taxes or duties specified in Entries 44, 47, 48 and 49 or in lieu of any one or more of them.

“If we were to construe Entry 52 of the Legislative List keeping in view the expression “in lieu of”, it becomes evident that the Legislature has the option whereby instead of invoking Entry 47 for imposing taxes on income, it can impose the same under Entry 52 on the basis of capacity to earn in lieu of Entry 47, but it cannot adopt both the methods in respect of one particular tax. Since under sections 80C and 80CC the imposition of presumptive tax is in substitution of the normal method of levy and recovery of the income-tax, the same is in consonance with Entry 52’.

• While interpreting an entry in a Legislative List it should be given widest possible meaning, “does not mean that Parliament can choose to tax as income which, in no rational sense, can be regarded as a citizen’s income”.

[Above is not verbatim reproduction of parts of the judgement, except where quotation marks are provided]

In para 31 (xii) of the Elahi Cotton case, the Supreme Court held: “That what is not “income” under the Income Tax Act cannot be made “income” by a Finance Act. An exemption granted by the Income Tax Act can be withdrawn by the Finance Act or the efficacy of that exemption may be reduced by the imposition of a new charge, of course, subject to Constitutional limitations”. This is a binding command of Supreme Court under Article 189 of the Constitution and no court or authority, except Supreme Court can revisit it.

In the Shahid Pervaiz v Ejaz Ahmad and others 2017 SCMR 206, a 14-member bench of Supreme Court held: “….where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question of law, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 and is binding on all the Courts of Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to high place which the Court holds in the hierarchy in the country enjoy a highly respected position as if it contains a definite expression of the Court’s view on a legal principle, or the meaning of law”.

Needless to say that under Article 189, the law enunciated by the Supreme Court becomes binding and enforceable for all forums including the Parliament. All the institutions are bound to follow the supreme law of the land and orders of the Supreme Court. The Legislature violated them both by inserting section 7E, which is not “income” at all but tax on immovable property, for which exclusive legislative competence vests with the provinces in the wake of the 18th Amendment effective from April 19, 2010.

Copyright Business Recorder, 2022