BRAC Vs. National Board of Revenue

BRAC

Vs.

National Board of Revenue

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J
Md. Joynul Abedin J

Shah Abu Nayeem Mominur Rahman J

BRAC, 75 Mohakhali C/A, Dhaka -1212………………………………….. Petitioner.

Vs.

National Board of Revenue represented by its Chairman, Segunbagicha, Dhaka and another………… Respondents.

Judgment

March 12, 2009.

Cases Referred to-

48 DLR (AD) 6, 49 DLR (AD)116 and 60 DLR (AD) 90.

Lawyers Involved:

Md. Asaduzzaman, Advocate, instructed by Syed Mahabubar Rahman, Advocate-on-Record-For the Petitioner.

Md. Zahirul Islam, Advocate-on-Record- For the Respondents.

Civil Petition For Leave To Appeal No. 462 of 2008.

(From the judgment and order dated 12.2.2008 passed by the High Court Division in Writ Petition No.6768 of 2001.)

Judgment

      Md. Joynul Abedin J.- This petition for leave to appeal has arisen out of the judgment and order dated 12.2.2008 passed by a Division Bench of the High Court Division in Writ Petition No. 6768 of 2001 discharging the rule.

2. The petitioner filed the aforesaid writ petition impugning the order being Nothi No.3(115)/Ka:Ma:Pra:/ 2000/475 dated 30.9.2001 of the National Board of Revenue rejecting the writ petitioner’s prayer for exemption to deposit 20% of the disputed tax at the time of filing appeal before the Taxes Appellate Tribunal against the order dated 8.2.2001 of the Appellate Additional Commissioner of Taxes, Range-2, Taxes Appeal Zone-1, Dhaka with regard to the writ petitioner’s income tax assessment for the assessment year 1998-1999 on the following averments.

3. The writ petitioner is a registered charitable society registered under the Societies Registration Act, 18609 and it runs different projects for the advancement of education, health, welfare etc., primarily for the poorest segment of the rural people. Its funds constitute mainly of donations from benevolent foreign donors. In addition, it earns income from commercial projects, bank interest, dividend etc. The writ petitioner is an assessee of companies circle-15, Taxes Zone–5, Dhaka having TIN: 2509-400-0011. The writ petitioner submitted its income tax return for the assessment year 1998-1999 claiming nil income. Pursuant to notice under sections 79 and 82(1) of the Income Tax Ordinance, 1984 an authorized representative appeared on behalf of the writ petitioner with books of accounts, bank statements etc. and explained the return. The Deputy Commissioner of Taxes however assessed under section 83(2) of the Ordinance the total income at Tk. 112,41,52,972.00 and determined the tax at Tk. 32,31,55,109.00 payable under the Ordinance. Against the said assessment, the writ petitioner took an appeal before the Appellate Additional Commissioner of Taxes but the Appellate Additional Commissioner by his order dated 8.2.2001 dismissed the appeal and maintained the said order of assessment. The writ petitioner thereafter on 24.9.2000 preferred an appeal against the said order before the Taxes Appellate Tribunal without depositing 20% of the tax as was required under section 158(2) of the Ordinance.

4. On or about 24.5.2001 the writ petitioner made an application before the Member (tax waiver and exemption) of the National Board of Revenue (NBR) for complete exemption from payment of the requisite tax under section 158(2)(a) of the Ordinance. The NBR thereupon by its order dated 30.9.2001 rejected the said application on the ground that the NBR had no more the power to exempt the writ petitioner from paying any tax after the amendment of sub-section (2) of section 158 of the Ordinance by the Finance Act, 2000 since 1.7.2000. A Division Bench of the High Court Division on a preliminary hearing issued rule nisi calling upon the NBR to show cause why its aforesaid order should not be declared to have been passed without any lawful authority and why the NBR should not be directed to grant the exemption as prayed for by the writ petitioner.

5. Eventually the High Court Division by the impugned judgment and order dated 12.2.2008 discharged the rule on the ground that the NBR committed no illegality in refusing to exercise its discretion to waive the requirement of the writ petitioner to deposit any tax under section 158(2) of the Ordinance in view of the amendment brought in this regard by the Finance Act, 2000 since 1.7.2000 and that such amendment taking away the discretionary power of the NBR to waive or modify the statutory obligation to pay certain amount of tax at the time of preferring an appeal by any assessee does not affect the substantive right to prefer appeal but it merely affects the procedural right to file an appeal. In the premises, the writ petitioner filed the civil petition for leave to appeal.

6. Mr. Md. Asaduzzaman, the learned Advocate for the petitioners submits that the High Court Division has erred in law in not considering that the provision of waiver under section 158(2)(b) of the Ordinance, 1984 relates to the assessment year, 1998-99 and its filing of the income Tax return and accordingly the petitioner is entitled to the benefit of the unamended provision of section 158(2) and not the amended provision since 1.7.2000 inasmuch as the amended provision can only take effect prospectively unless there is express intendment in the amending statute which is absent in the present case. He lastly submits that the High Court Division erred in failing to hold that the NBR was not justified in law in refusing to exempt payment of 20% tax as per the unamended provision of section 158(2) of the Ordinance.

7. We have heard the learned Counsel and perused the connected papers including the impugned judgment. We do not find any substance in the points raised. The right of appeal is not a matter of procedure but a matter of substantive right. The provision of sub-section (2) of section 158 of the Income Tax Ordinance relating to modifying or waiving the requirement to pay certain percentum of tax as a condition precedent to filing of an appeal is merely a matter of procedure. The effect of repeal or amendment in the procedural law will be that in the pending cases the new procedural law will apply because as a general rule alterations in the form of procedure are retrospective in character unless there is some contrary provision in the repealing or amending enactment. In this view of the matter the provision of sub-section (2) of the Income Tax Ordinance as amended by the Finance Act, 2000 will be applicable to the pending cases. In this regard reference may be made to 48 DLR (AD) 6, 49 DLR (AD) 116 and 60 DLR (AD) 90.

8. The High Court Division therefore upon correct assessment of the legal position and materials on record arrived at a correct decision. Hence we do not find any reason to interfere with the same.

The petition is accordingly dismissed.

Ed.

Source: 29 BLD (AD) (2009) 63

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