National Board of Revenue and others v. S.R. Shipping Ltd. and others

Case No: CIVIL PETITION FOR LEAVE TO APPEAL NO. 621 OF 2010

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,Mrs. Mahfuza Begum,,

Case Year: 2014

Appellant: National Board of Revenue and others

Respondent: S.R. Shipping Ltd. and others

Subject: Income Tax,

Delivery Date: 2014-07-13


IN THE SUPREME COURT OF BANGLADESH

Appellate Division


PRESENT

Madam Justice Nazmun Ara Sultana

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali


CIVIL PETITION FOR LEAVE TO APPEAL NO.  621 OF  2010

(From the judgement and order dated 21st of January, 2010 passed by the High Court Division in Writ Petition No. 5327 of 2008)


National Board of Revenue and others

... Petitioners

  = Versus =


S.R. Shipping Ltd. and others

... Respondents

For the Petitioners

:Mr. Mahbubey Alam, Attorney General with Mrs. Mahfuza Begum,Assistant Attorney General instructed by Mr. Gias Uddin Ahmed, Advocate-on-Record

The Respondents

:Not represented

Date of hearing

:The 13th of July, 2014




 

O R D E R

MUHAMMAD IMMAN ALI, J:-

The delay of 67 days in filing the civil petition for leave to appeal is hereby condoned.

This civil petition for leave to appeal is directed against the judgement and order dated 21.01.2010 passed by a Division Bench of the High Court Division in Writ Petition No. 5327 of 2008 making the Rule absolute.

The facts relevant for disposal of the instant petition are as follows:

The respondent company incorporated under the law of the land is engaged in the business of transporting goods by ocean going Vessels at home and abroad. The company is a resident company, and as per section 2 (55) of the Income Tax Ordinance, 1984 any income earned by it is accumulated to its total income for computation of tax as per section 176 of the said Ordinance. The respondent company earned substantial income from abroad which has been remitted to the country through official channel, namely the financial institutions. The respondent company being well aware of the S.R.O. No. 216 of 2004 presumed that it is entitled to get the benefit of the said SRO as certain portion of its income accrued from outside Bangladesh by way of foreign currency. Accordingly the respondents through its attorney requested the Board of Revenue (NBR) to clarify the exemption in respect of the respondents for the purpose of filing income tax return in accordance with law. The petitioners vide memo dated 31.12.2007, as evident in Annexure B, informed the respondent company that the income earned by the company outside Bangladesh will be exempted for the purpose of computing income tax for the respective income tax year. After getting the aforesaid memorandum issued by the National Board of Revenue, the ultimate authority for the purpose income tax assessment and determination, the respondent company submitted annual return as per section 82BB (self Assessment) of the Income tax Ordinance, 1984.

Subsequently, the petitioners issued memo dated 5.6.2008 by which the petitioners cancelled the earlier exemption allowed to the respondents. Thereafter, by the memo impugned in the writ petition the petitioners issued notice under section 173 of the Income Tax Ordinance, 1984 for correction of the order of assessment for the assessment year in question and ultimately issued demand notice as evident in Annexure-G series.

Against the said demand notice the respondents filed Writ Petition No. 5327 of 2008 before the High Court Division and obtained Rule.

Upon hearing, by the impugned judgement and order dated 21.01.2010 the High Court Division made the Rule absolute. 

Being aggrieved by the judgement and order of the High Court Division the National Board of Revenue and others as petitioners have filed the instant civil petition for leave to appeal.

Mr. Mahbubey Alam, learned Attorney General appearing on behalf of the petitioners submitted that the exemption in S.R.O. No. 216 dated 13.07.2004, applies to a ""e¡N¢lL'' (citizen). The word ‘person’ being absent in the S.R.O., the letter dated 31.12.2007 issued by the Revenue Department was mistaken in treating a company as ""e¡N¢lL'' for granting tax exemption.  The petitioners have all power under section 173 of the Income Tax Ordinance to correct the aforesaid error and thus the subsequent order passed on 05.6.2008 cancelling the earlier order dated 31.12.2007 is permissible under section 173 of the Income tax Ordinance. Hence, the High Court Division committed an error in holding that there is no scope to correct the error.  The learned Attorney General further submitted that the word ""e¡N¢lL'' (citizen) as mentioned in S.R.O. No. 216 dated 13.07.2004 does not include any juristic person namely the company and the Revenue Department erroneously included the company, i.e. the juristic person as ""e¡N¢lL'' and that has been rightly corrected subsequently and there cannot be any right accrued to the assessee company due to the aforesaid erroneous interpretation of the provision of S.R.O. No. 216 dated 13.07.2004, so far it relates to ""e¡N¢lL'' and the High Court Division has failed to take into consideration the said facts.

No one has appeared for the respondents.

We have considered the submissions of the learned Attorney General appearing for the petitioners, perused the impugned judgement and order of the High Court Division and other connected papers on record.

In view of the submissions made by the learned Attorney General for the petitioners, we find merit in the civil petition for leave to appeal.

Accordingly, leave is granted.

Preparation of paper book, as prayed for, is dispensed with.

The order of stay granted earlier by this Division shall continue till disposal of the appeal.