The Federal Board of Revenue has yet to implement key recommendations of the Federal Tax Ombudsman (FTO) to set up a committee of experts to provide feedback that no income tax circular is amenable to routine misuse and misinterpretation. Sources told Business Recorder here on Monday that the FBR is bound to implement the recommendations issued by the FTO but it appears that FBR has skipped the important order issued by FTO.
This is unique order issued by the FTO with directions to the FBR to set up a committee of experts to provide feedback that no circular is amenable to routine misuse and misinterpretation. Sources further said that in a Suo motu action in C.No 97/ISD/SUO-MOTO(03)/957/2011 (Waheed Shahzad Butt Versus Secretary Revenue Division) it was observed by the FTO that amnesty granted under SRO 333(I)/2011 dated 02-5-2011 read with Circular No 06/2011 dated 18-6-2011 was discriminatory against the honest taxpayers who had regularly paid their taxes and the FBR was not legally competent to extend the scope of amnesty to the provisions of Section 111(1)(b) and (c) of the Income Tax Ordinance, 2001.
When contacted tax expert Waheed Butt told this correspondent that in the light of provisions of section 206 of the Ordinance, FBR may issue circulars to provide guidance to the taxpayers and its functionaries. The circulars shall be binding on FBR functionaries but quite amazingly at the same time these are not binding on a taxpayer. Apparently it looks like a practical joke that a document issued by the FBR to clarify a proposition of law or interpreting any law shall be binding on its functionaries but at the same time it shall not be binding on taxpayers. It clearly means that FBR is not empowered by the statute to clarify, interpret or explain the legal provisions of the Ordinance. That's why taxpayers have intentionally been excluded from the domain of circular/clarification venture of FBR.
That powers vested u/s 206 of the Ordinance are of administrative nature having clear restriction to explain the legal issues due to the reason that any clarification/circular issued by the FBR shall not be binding on a taxpayer. It appears that the legislature has wisely drafted the provision of section 206 as it intentionally restricts the scope of jurisdiction and powers granted to FBR to issue circulars/clarifications. It also means that FBR functionaries cannot compel the taxpayer to follow any interpretation of law if done by the FBR through a circular.
In dozens of cases at the end, the FBR simply states and communicates in either of the following modes and ultimately withdraws the earlier circulars/letters/clarifications by saying, to check the misuse of exemption or in supersession of an earlier clarification or to prevent misuse of facility or due to wrong interpretation of letter/clarification issued by FBR or FBR has superseded all earlier clarifications/circulars/letters or earlier clarification has been revisited.
Tax expert further said that FBR has no power to change the tax liability of a person by issuing a circular/clarification/letter or by making a clarification/circular" that is actually an 'interpretation of law' under the garb of powers available u/s 206. The tax liability of a taxpayer can only be determined/altered/re-determined by the Parliament. The interpretation of law is the sole prerogative of the Courts with the Supreme Court having the final say in the matter. In Pakistan, unfortunately, over the years, FBR has surreptitiously usurped a significant part of the lawmaking powers of the Parliament and has resorted to arbitrary and incompetent law making on its own by misusing section 206. Circulars/Clarifications/SROs are the devices employed by FBR in this context and in almost all cases the intention of FBR officials who resort to such practices has been suspect.
In fact this is one dimension of the institutionalisation corruption in Pakistan. The negative fallout on revenue mobilisation of these practices has been enormous and is one important reason why the tax to GDP ratio has deteriorated so significantly in recent years: Waheed added.
Comments
Comments are closed.