APPELLATE TRIBUNAL INLAND REVENUE, DIVISION BENCH-I, ISLAMABAD
ITA No.664/IB/2025
(Tax
Year, 2021)
ITA No.665/IB/2025
(Tax
Year, 2022)
ITA No.666/IB/2025
(Tax
Year, 2023)
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M/s Port Qasim Electric Power Company (Private)
Limited; House No.3, Street No.3, Sector F-8/3, Islamabad. NTN: 4376925 |
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Appellant |
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Vs |
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Commissioner Inland Revenue, Zone-III, LTO,
Islamabad. |
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Respondent |
Respondent BY: Barrister
Liaqat Ali, LA
Date of Hearing: 23.02.2026
Date of Order: 23.02.2026
ORDER
M. M. AKRAM (Judicial Member): The instant appeals have been instituted
by the appellant–taxpayer as first appeals before this Tribunal in exercise of
the option conferred by the proviso to sub-section (1) of section 127 of the
Income Tax Ordinance, 2001 (“the Ordinance”), assailing the amended
assessment Orders all dated November 26, 2025, passed by the learned Additional
Commissioner Inland Revenue, Large Taxpayer Office, Islamabad (“the Addl
CIR”), under section 122(5A) of the Ordinance, relevant to the Tax Years
2021, 2022 and 2023. Through the impugned orders, Workers’ Welfare Fund (WWF)
was levied under section 4 of the Workers’ Welfare Fund Ordinance, 1971 (“the
WWFO”) on the income declared by the appellant as exempt in its returns.
The appeals have been preferred on the grounds articulated in the respective
memoranda of appeal. Since common questions of fact and law are involved, the
same are being disposed of through this consolidated order.
2. Succinctly stated, the relevant facts are
that the appellant is a private limited company incorporated in Pakistan on
August 12, 2014. Its principal business activities comprise the development,
ownership, operation and maintenance of electric power generation facilities.
The appellant filed its returns of income for the Tax Years 2021, 2022 and 2023,
declaring a loss of Rs. 23,320,151,580 for Tax Year 2021 and business income of
Rs. 8,179,443,434 and Rs. 8,373,120,960 for Tax Years 2022 and 2023, respectively.
These returns were processed and deemed to have been assessed under section
120(1)(b) of the Ordinance. Subsequently, upon examination of the assessment
record, the department formed the view that the deemed assessment orders were
erroneous insofar as they were prejudicial to the interest of revenue,
particularly on the premise that WWF under section 4 of the Workers’ Welfare
Fund Ordinance, 1971 had not been charged on the total income claimed as exempt
by the appellant. Consequently, a show cause notice under section 122(9) of the
Ordinance was issued on January 14, 2025, culminating in the passing of the
impugned orders under section 122(5A).
3. Feeling aggrieved by the aforesaid orders,
the appellant has preferred the present appeals before this Tribunal,
challenging the legality and validity of the impugned orders on the grounds set
forth in the memoranda of appeal.
4. The appeals were taken up for final
hearing on February 23, 2026. At the very outset, the learned Authorized
Representative (AR) for the appellant stated that he was not pressing
the ground challenging the jurisdiction assumed by the learned Additional
Commissioner Inland Revenue in passing the impugned orders under section
122(5A) of the Ordinance. He confined his submissions to two substantive
grounds. Firstly, it was contended that the income derived from the electricity
generation project is admittedly exempt from tax under Clause (132) of Part-1
of the Second Schedule to the Income Tax Ordinance, 2001. Under the pre-amended
provisions of the Workers’ Welfare Fund Ordinance, 1971 (WWFO), as applicable
prior to the amendments introduced through the Finance Acts of 2006 and 2008,
the levy of Workers’ Welfare Fund (WWF) was chargeable only on income that was
assessable under the Ordinance. It was argued that although “total income”
under section 10 of the Ordinance encompasses income under all heads, including
exempt income, the charging provision contained in section 4 imposes tax only
on “taxable income” and not on total income per se. Since exempt income does
not form part of taxable income and is not subject to charge under section 4 of
the Ordinance, it cannot be treated as assessable income for the purposes of the
levy of WWF. In support of this proposition, reliance was placed upon the
judgment of the Hon’ble Supreme Court of Pakistan rendered on March 28, 2000,
in Civil Petitions Nos. 38, 156, 180, 199 to 276, 278 to 283, 285 to 320, 322
to 421 and 518 to 524 of 2000 and 2002 PTD 14, etc. It was further submitted
that in ITA No. 1403/IB/2024 dated November 12, 2024, relied upon by the
assessing officer, this Tribunal inadvertently overlooked the expression
“assessable” used in section 4(1) of the WWFO. Consequently, the earlier ratio
laid down by the Sindh High Court (2002 PTD 14) and the Peshawar High Court (86
TAX 61), holding that exempt income cannot be subjected to levy of WWF,
continues to hold the field. The central plank of the AR’s argument, therefore,
is that only income chargeable to tax, i.e., taxable or assessable income, can
constitute the basis for the levy of WWF, and exempt income falls outside its
ambit.
Secondly,
it was contended that the appellant does not fall within the definition of
“industrial undertaking” as provided in section 2(f) of the Workers’ Welfare
Fund Ordinance, 1971, and, therefore, no liability under the said Ordinance can
lawfully be fastened upon it. The Appellant is engaged in the business of power
generation and does not manufacture or produce any article or goods. Therefore,
it does not qualify as an industrial establishment within the meaning of the
WWFO. Conversely, the learned Departmental Representative (DR) supported
the impugned orders and maintained that the same were passed strictly in
accordance with law and suffer from no legal infirmity.
FINDINGS:-
5. After considering the rival submissions,
examining the record, and carefully perusing the relevant statutory provisions,
the controversy before the tribunal pertains to the correct interpretation of
section 4 of the Workers’ Welfare Fund Ordinance, 1971, and, in particular,
whether income exempt under the Income Tax Ordinance, 2001 is liable to be
excluded from the base on which the Workers’ Welfare Fund is computed?
At
the outset, it is clarified that the amendments
introduced through the Finance Acts of 2006 and 2008 to the Workers Welfare
Fund Ordinance, 1971, were declared ultra
vires by the Honourable Supreme Court of Pakistan
in the case titled Workers Welfare Fund, M/s Human Resources
Development, Islamabad and others v. East Pakistan Chrome Tannery (Pvt.) Ltd
and others (PLD 2017 SC 28). Accordingly,
for ease of reference, the relevant provisions of
the Workers Welfare Fund Ordinance, 1971, as they stood prior to the aforesaid
amendments, along with the pertinent provisions of the Income Tax Ordinance,
2001, are reproduced hereunder.
A. Provision of the WWF Ordinance, 1971.
Section
4. Mode of payment by, and recovery from,
industrial establishments.---(1) Every industrial establishment, the total
income of which in any year of account commencing on or after the date
specified by the Federal Government in the official Gazette in this behalf is
not less than one lakh of rupees shall pay to the Fund in respect of that year
a sum equal to two per cent of so much of its total income as is assessable
under the Ordinance or would have been so assessable but
for the exemption made by section 48 thereof.
(2)
Every industrial establishment which is liable under subsection (1) shall pay
the amount due from it to the Income-tax Officer having jurisdiction over the
industrial establishment for purposes of the Ordinance.
(3)
The industrial establishment shall, on or before the date on which it is
required to furnish a return of income under section 55 of the Ordinance, pay
the amount due from it under subsection (1) calculated with reference to the total
income reported in the said return.
..............................
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(Emphasis supplied)
B. Provisions of Income Tax Ordinance,
2001:
Section
4. Tax on taxable income.— (1) Subject to this Ordinance, income tax
shall be imposed for each tax year, at the rate or rates specified in Division
II of Part I of the First Schedule, as the case may be, on every person who has
taxable income for the year.
Section
9. Taxable income.—The taxable income of a person for a tax year shall
be the total income under clause (a) of section 10 of the person for the year,
reduced but not below zero by the total of any deductible allowances under Part
IX of this Chapter of the person for the year.
Section
10. Total Income.— The total income of a person for a tax year shall be
the sum of the
(a)
person’s income under all heads of income for the year; and
(b)
person’s income exempt from tax under any of the provisions of this Ordinance.
DISCUSSION:-
6. At the outset, it is necessary to
clarify that the Workers’ Welfare Fund is not a tax imposed under the Income
Tax Ordinance, 2001, but a statutory contribution created under an independent
welfare legislation with the specific object of securing financial resources
for the welfare of industrial workers. In Workers Welfare Funds, M/s
Human Resources Development, Islamabad and others v. East Pakistan Chrome
Tannery (Pvt.) Ltd and others (PLD 2017 SC 28), the Honourable
Supreme Court authoritatively held that contributions under the Ordinance of
1971 do not possess the distinguishing characteristics of a tax, as they are
not imposed for general revenue purposes but for a specific welfare objective.
The nature of the levy, therefore, must be appreciated in its own statutory
setting. The charge of Workers’ Welfare Fund emanates
exclusively from section 4 of the Workers’ Welfare Fund Ordinance, 1971, and is
not dependent upon the incidence or quantum of income tax payable under section
4 of the Income Tax Ordinance, 2001. The question arises:
Whether
income which is exempt from tax under the Second Schedule to the Income Tax
Ordinance, 2001 ceases to be income assessable under the Ordinance, or whether
such income, though exempt from the charge of tax, continues to remain
assessable and recognised within the statutory scheme of the Ordinance?
7. The principal contention advanced by the
appellant is that section 4 of the Income Tax Ordinance, 2001, levies tax only
on taxable income and, therefore, only such income can be regarded as “assessable
under the Ordinance”. It is argued that income which is exempt from tax
falls outside the charge of tax, is not assessable, and consequently cannot
form the basis for the levy of the Workers’ Welfare Fund. Although this
submission appears attractive at first blush, it does not withstand closer
legal scrutiny when examined in the broader context of the statutory framework
and scheme of the Income Tax Ordinance, 2001, for, inter alia, the following
reasons:-
i. Section 120 of the Income Tax Ordinance,
2001 embodies the statutory concept of self-assessment and unequivocally
provides that where a taxpayer has furnished a return of income under section
114, an assessment shall be treated as having been made on the basis of such
return and the Commissioner shall be deemed to have made an assessment order
determining the tax payable for that tax year. The operation of this provision
is triggered by the furnishing of a valid return of income and is not
contingent upon the existence of taxable income or tax liability. The law does
not draw any distinction between a return declaring taxable income and one
declaring exempt income only; rather, it contemplates that every return filed
in accordance with the Ordinance culminates in a deemed assessment, even where
the tax payable is nil. In fiscal jurisprudence, the expression “assessment”
encompasses not merely the computation of taxable income but also the
determination of the taxpayer’s overall tax liability, including the ascertainment
of total income, even where such determination results in a nil liability.
Therefore, a return declaring exclusively exempt income, if filed in compliance
with section 114, squarely falls within the ambit of section 120 of the
Ordinance and results in a deemed assessment order. The contention that only
returns reflecting taxable income qualify as deemed orders under section
120(1)(a) is thus contrary to the plain language, structure, and legislative
intent of the Ordinance and cannot be sustained in law.
Keeping
in view the foregoing legal position, it can safely and authoritatively be held
that a return of income declaring solely exempt income, if furnished in
accordance with section 114 of the Ordinance, is equally subject to the deeming
fiction embodied in section 120 of the Ordinance. The statutory mechanism of
deemed assessment is triggered by the act of filing a valid return and is not
dependent upon the existence of taxable income or tax payable. Consequently,
even where the income declared is wholly exempt and results in a nil tax
liability, the return so filed shall nonetheless be treated as a deemed
assessment order under section 120, with all attendant legal consequences
flowing therefrom. It is also pertinent to observe that the learned AR for the
appellant expressly did not press the ground relating to the jurisdiction
assumed by the learned Additional Commissioner Inland Revenue under section
122(5A) of the Ordinance to amend the deemed assessment framed under section
120(1)(b). This position, in effect, amounts to a tacit acknowledgement on the
part of the appellant that the return of income filed by it, even though
declaring exempt income only, had attained the status of a deemed assessment
order under section 120 and was amenable to amendment proceedings under the
law.
ii. Section 4(1) of the Workers’ Welfare Fund
Ordinance, 1971, obliges every industrial establishment to pay a sum equal to
two per cent of “so much of its total income as is assessable under
the Ordinance or would have been so assessable but for the exemption made by
section 48 thereof.” The legislature has consciously employed the
expression “total income” and not “taxable income.” Under section 10 of the
Income Tax Ordinance, 2001, “total income” is defined as the sum of income
under all heads together with income exempt from tax under any provision of the
Ordinance. By contrast, section 9 defines “taxable income” as total income
reduced by allowable deductions, and section 4 imposes tax only on such taxable
income. The statutory scheme thus makes a clear and deliberate distinction
between:-
(a) income assessable and forming part of the total
income, and
(b) income ultimately chargeable to tax.
iii. The scheme of the Income Tax Ordinance,
2001, operates in distinct stages. First, income is computed under the
prescribed heads of income; secondly, such computed amounts constitute “total
income” within the meaning of section 10; thirdly, permissible deductions and
allowances reduce total income to “taxable income” under section 9; and
finally, section 4 levies tax on the taxable income so determined. Exemption
provisions, including those contained in the Second Schedule, intervene at the
stage of taxability and relieve the taxpayer from the incidence of tax. They do
not obliterate the character of a receipt as income, nor do they remove it from
the computational and assessment framework of the Ordinance. Exempt income is
required to be declared in the return under section 114, is subject to
verification and reconciliation, and forms part of the statutory determination
of a taxpayer’s financial position. Exemption, therefore, negates tax
liability; it does not negate assessability.
iv. The expression “assessable under
the Ordinance” occurring in section 4 of the Workers’ Welfare Fund
Ordinance must be construed in the backdrop of the statutory scheme of the
Income Tax Ordinance, 2001. The term “assessable” signifies income which is
capable of entering the statutory process of computation and assessment under
the Income Tax Ordinance, that is, income falling within the recognized heads
of income and forming part of the legal framework of assessment, irrespective
of whether tax is ultimately payable thereon. It does not postulate that actual
levy or payment of tax is a pre-condition. This construction is further
reinforced by the latter part of section 4(1), which employs the words “or
would have been so assessable but for the exemption made by section 48.”
The deliberate inclusion of this limb demonstrates legislative cognizance that
certain categories of income, though exempt from charge, nonetheless retain
their character as assessable income within the statutory mechanism. Any
interpretation excluding exempt income altogether from the scope of
assessability would render this phrase otiose and redundant, in violation of
the well-settled canon of statutory interpretation that every word used by the
legislature must be given effect and none treated as superfluous. In this
regard, guidance may be drawn from the principles enunciated in Oil
and Gas Development Company Limited vs. Federal Board of Revenue and 2 others (2016
PTD 1675), Zaver Petroleum Corporation Limited Vs Federal Board of Revenue and
another (2016 PTD 2332), Dr Raja Aamer Zaman Vs Omer Ayub Khan and
others(2015 SCMR 1303) and Mst. Rooh Afza Vs Aurangzeb and others
(2015 SCMR 92), wherein it has been consistently held that statutory provisions
must be interpreted harmoniously, giving meaningful effect to each expression
and avoiding constructions that lead to redundancy or absurdity. Applying these
settled principles, no conclusion is possible other than that income which is
exempt from tax under the Income Tax Ordinance, 2001, nevertheless remains
“assessable under the Ordinance” for the purposes of section 4 of the Workers’
Welfare Fund Ordinance and, consequently, forms part of the base for
determining liability thereunder.
v. A similar scheme is discernible under both
the Income Tax Ordinance, 1979 and the Income Tax Ordinance, 2001. In the first
instance, a charge is created on a person in respect of income, which is
assessed under the prescribed heads of income enumerated in sections 15 and 10
of the 1979 and 2001 Ordinances, respectively. Once total income is assessed
under these heads, the stage of determining taxable income follows, at which
point permissible deductions, such as Zakat, Workers’ Welfare Fund, or brought-forward
losses, are applied. In the absence of such deductions, assessed total income
and taxable income may be identical; however, the allowance of deductions may
reduce or even nullify the taxable income without affecting the fact that
income has already been assessed.
vi. It follows that there cannot be taxable
income unless income has first been assessed under the relevant heads. Any
receipt falling within one of the prescribed heads of income is, by definition,
assessable under the Ordinance, even if its tax liability is subsequently
reduced or extinguished. By contrast, receipts which do not fall under any of
the statutory heads of income are not assessable at all. Agricultural income is
a classic example, as it does not fall within the heads of income under either
the 1979 or the 2001 Ordinance and is, therefore, excluded from assessment
under these laws read with entry 47 of the Federal Legislative List to the
Constitution of the Islamic Republic of Pakistan, 1973.
vii. Under the Income Tax Ordinance, 2001,
the expressions “assessability” and “taxability,” though often used
interchangeably in practice, carry distinct legal connotations. “Assessability”
relates to the jurisdictional competence of the charging provisions to bring a
particular receipt, gain, or amount within the scope of the Ordinance for the
purpose of computation and determination of total income; it answers the
preliminary question whether a given income falls within the statutory
framework so as to be capable of assessment. “Taxability,” on the other hand,
is concerned with the ultimate liability to pay tax on such income after the
application of exemptions, exclusions, reductions, credits, and rate provisions
contained in the law. Thus, an item may be assessable in the sense that it is
recognized by the Ordinance and forms part of the income structure subject to
declaration and scrutiny, yet it may not be taxable if the Legislature has
expressly granted an exemption. In this context, income exempt under section 53
read with the Second
Schedule is not chargeable to tax and therefore
not taxable; however, its character as income does not cease merely because tax
is not levied upon it. Such exempt income may still be required to be disclosed
in the return and may remain relevant for collateral statutory purposes (such
as determining thresholds, apportionment, or eligibility conditions), but no
tax can be imposed on it so long as the exemption remains operative.
Accordingly, the exemption affects taxability, not the conceptual assessability
of the income under the Ordinance.
viii. When the Workers’ Welfare Fund Ordinance and
the Income Tax Ordinance, 2001, are read harmoniously, it becomes evident that
the welfare statute adopts the concept of “total income assessable”
as defined within the tax framework, but does not adopt the narrower concept of
“taxable income.” The legislative choice to base
contribution upon total income reflects an intention to measure liability with
reference to the economic capacity of the industrial establishment as disclosed
in its assessable income, rather than the fortuitous availability of tax
exemptions. The exemption removes the burden of income tax; it does not erase
the economic reality of income earned, nor does it transform income into
non-income for purposes of statutory contribution under the Workers’ Welfare
Fund Ordinance.
In
view of the foregoing, it is evident that income exempt under the Second
Schedule to the Ordinance remains income assessable under the Income Tax
Ordinance, 2001. The exemption relates solely to taxability and does not
detract from the assessability, recognition, or inclusion of such income within
the statutory framework. The appellant’s contention to the contrary is thus
devoid of legal merit.
8. Section 4(1) of the Workers’ Welfare Fund
Ordinance mandates contribution by every industrial establishment whose total
income meets the prescribed threshold, calculated at two per cent of so
much of its total income as is assessable under the Income Tax Ordinance, 2001
or would have been so assessable but for the exemption made by section 48
thereof. The legislature has consciously employed the expression “total
income” and not “taxable income”. The term “total income” is a
defined statutory concept under section 10 of the Income Tax Ordinance, 2001,
which expressly includes both income chargeable to tax and income exempt from
tax. This statutory definition leaves no ambiguity that exempt income remains
part of total income for purposes of computation, disclosure, and assessment,
notwithstanding the absence of tax liability thereon.
9. In the present case, the taxpayer itself
declared total income exceeding the statutory threshold in its return of income
and merely claimed exemption therefrom under Clause (132) of Part 1 of the
Second Schedule to the Income Tax Ordinance, 2001. Although such income is not
chargeable to tax under section 4 of the Ordinance, it was nonetheless
computed, disclosed, and subjected to the statutory process of verification
envisaged under sections 114 and 120 of the Ordinance. Such a declaration
constitutes self-assessment recognised by law. Assessment, in its legal sense,
is distinct from chargeability to tax, and the absence of tax liability does
not place such income outside the assessment framework of the Ordinance.
10. The expression “assessable under the
Ordinance” employed in section 4 of the Workers’ Welfare Fund Ordinance
denotes income capable of being assessed under the Income Tax Ordinance, 2001
and does not require that tax must actually be levied or paid. The further
words “or would have been so assessable but for the exemption made by
section 48” reinforce the legislative intent that exemption from tax
does not, by itself, exclude income from the contribution base, where such
income otherwise forms part of total income assessable under the tax law. Any
interpretation excluding exempt income altogether would render this latter part
of the provision redundant, an outcome impermissible under settled principles
of statutory construction.
11. At the same time, this tribunal is mindful
of the authoritative pronouncement of the Hon’ble Supreme Court of Pakistan
rendered on March 28, 2000, in Civil Petitions Nos. 38, 156, 180, 199
to 276, 278 to 283, 285 to 320, 322 to 421 and 518 to 524 of 2000,
which has held that industrial establishments enjoying tax holidays under
provisions of the repealed Income Tax Ordinance, 1979 other than section 48,
and whose income was not liable to assessment at all under the Ordinance, fall
outside the ambit of section 4 of the Workers’ Welfare Fund Ordinance. The
ratio of the said judgment is confined to cases where income does not enter the
assessment regime due to a complete statutory exclusion. The present case
stands on a different footing, as the income in question was voluntarily declared,
computed, and subjected to the assessment mechanism under section 120 of the
Ordinance, 2001, with exemption merely claimed under the Second Schedule.
Accordingly, the facts of the instant case do not attract the exclusion
contemplated by the Supreme Court judgment.
12. Furthermore, the Workers’ Welfare Fund
Ordinance is a social welfare legislation, distinct in character from a fiscal
taxing statute, and must be interpreted in a manner that advances its remedial
object. The liability to contribute to such a fund is founded upon the economic
capacity of an industrial establishment as reflected in its total income, and
not upon the fortuitous availability of tax exemptions. To permit
establishments enjoying exemptions to escape contribution, despite possessing
comparable economic capacity, would defeat the legislative purpose and result
in inequitable treatment of workers similarly situated.
13. Moving forward, it is equally important to
appreciate the distinct nature and purpose of the Workers’ Welfare Fund. Unlike
income tax, which is a fiscal levy imposed for general revenue purposes, the
Workers’ Welfare Fund is a social welfare legislation enacted to secure
financial resources for the welfare of industrial workers. The liability to
contribute to such a fund is not dependent upon the quantum of tax payable but
upon the economic capacity of the industrial establishment as reflected in its
total income. Exemptions granted under the Income Tax Ordinance, 2001, are
policy-driven incentives or concessions and cannot be construed as indicators
of diminished economic capacity. To permit industrial establishments enjoying
tax exemptions to escape Workers’ Welfare Fund liability would be to undermine
the social objective of the Ordinance and to allow the burden of workers’
welfare to fall inequitably.
14. The legislative intention behind imposing a
two per cent levy on total income is manifestly to ensure that industrial
establishments benefiting from economic activity contribute a modest and
proportionate share toward the welfare of their workforce. Parliament was fully
alive to the possibility that certain incomes might be exempt from tax and,
therefore, expressly ensured that such exemptions would not erode the financial
base of the Workers’ Welfare Fund. The deliberate use of the word “total
income” and inclusion of exempt income within the assessable base reflects a
policy choice that workers’ welfare should not be subordinated to tax
incentives or exemptions; such legislation must be interpreted purposively, in
a manner that advances its remedial object rather than defeats it. In Regina
v. Secretary of State for Health (Respondent) ex parte Quintavalle (on behalf
of Prof-Life Alliance) (Appellant), [2003] UKHL 13, the
House of Lords, upholding the method of Purposive Interpretation, stated:
“The
basic task of the court is to ascertain and give effect to the true meaning of
what Parliament has said in the enactment to be construed. But that is not to
say that attention should be confined, and a literal interpretation given to
the particular provisions which give rise to difficulty. Such an approach not
only encourages immense prolixity in drafting, since the draftsman will feel
obliged to provide expressly for every contingency which may possibly arise. It
may also (under the banner of loyalty to the will of Parliament) lead to the
frustration of that will, because undue concentration on the minutiae of the
enactment may lead the court to neglect the purpose which Parliament intended
to achieve when it enacted the statute. Every statute other than a pure
consolidating statute is, after all, enacted to make some change, or address
some problem, or remove some blemish, or effect some improvement in the
national life. The court's task, within the permissible bounds of
interpretation, is to give effect to Parliament's purpose. So, the
controversial provisions should be read in the context of the statute as a
whole, and the statute as a whole should be read in the historical context of
the situation which led to its enactment.”
Similarly, in Jeewanlal (1929) Ltd. vs The
Appellate Authority, [AIR 1984 SC 1842], the
Indian Supreme Court, further uplifting the idea of purposively interpreting
the statute, stated that:
“In
construing a social welfare legislation, the court should adopt a beneficent
rule of construction and if a section is capable of two constructions, that
construction should be preferred which fulfils the policy of the Act, and is
more beneficial to the persons in whose interest the Act has been passed.”
Reliance can also be placed on The State of Goa
vs Namita Tripathi, [2025] 3 S.C.R. 341, the Indian Supreme Court stated that:
“Acts
of this nature, which are social welfare legislation and intended to benefit
the large community of workers, ought to be interpreted in a manner to give
efficacy to legislative intent.”
In Lanco Anpara Power Ltd. v. State of U.P. &
Ors., (2016) 10 SCC 329, the Indian Supreme Court held:
“The
Employees' State Insurance Act is a social security legislation, and the canons
of interpreting a social legislation are different from the canons of
interpretation of taxation law. The courts must not countenance any subterfuge
which would defeat the provisions of social legislation, and the courts must
even, if necessary, strain the language of the Act in order to achieve the
purpose which the legislature had in placing this legislation on the statute
book. The Act, therefore, must receive a liberal construction so as to promote
its objects.”
In Allahabad Bank & Anr. v. All India
Allahabad Bank Retired Employees Association, (2010)
2 SCC 44, the Indian Supreme Court stated:-
“Remedial
statutes, in contradistinction to penal statutes, are known as welfare,
beneficent or social justice-oriented legislations. Such welfare statutes
always receive a liberal construction. They are required to be so construed so
as to secure the relief contemplated by the statute. It is well settled and
needs no restatement at our hands that labour and welfare legislation have to
be broadly and liberally construed, having due regard to the directive
principles of State policy. The Act with which we are concerned for the present
is undoubtedly one such welfare-oriented legislation meant to confer certain
benefits upon the employees working in various establishments in the country.”
15. Section 60A of the Income Tax Ordinance, 2001,
provides that WWF paid under the Workers'
Welfare Fund Ordinance, 1971, shall be allowed as a
deductible allowance in computing the taxable income of the person for the
relevant tax year. The key point is that section 60A does not itself create the
liability to WWF; it merely grants a tax deduction where WWF is payable under
the WWF law. The charge to WWF arises independently under section 4 of the WWF
Ordinance on the income of an “industrial establishment,” historically
calculated with reference to the income assessed under the Income Tax
Ordinance.
Where
a person derives income that is exempt under section 53, read with the Second
Schedule of the Income Tax Ordinance, 2001, such income is not taxable for
income tax purposes; however, exemption from income tax does not automatically
extinguish liability under the WWF Ordinance unless the exemption specifically
extends to WWF. The two levies operate in different fields: one is an income
tax, the other is a welfare contribution linked to income. Therefore, even if
the income is exempt from tax, it may still constitute “income” for the purpose
of computing WWF, unless there is a specific statutory exclusion. In practical
reconciliation, three situations may arise:
(i)
If the person has only exempt
income and no taxable income, WWF may still be payable under the WWF Ordinance,
but section 60A would have no practical effect because there is no taxable
income against which the deduction can be allowed.
(ii)
If the person has both
taxable and exempt income, WWF paid would be deductible only against the
taxable income; and
(iii)
If the income itself is
excluded from the scope of WWF by virtue of a specific statutory or judicial
exclusion, then neither WWF liability nor deduction under section 60A would
arise.
Thus,
section 60A operates as a consequential deduction provision and does not
control or limit the substantive charge of WWF. Exemption under the Income Tax
Ordinance affects taxability, but unless expressly provided, it does not negate
liability under the WWF law; it merely determines whether the WWF paid can be
effectively deducted in computing taxable income.
16. The question of whether the Worker’s Welfare
Fund (WWF) applies to a power generation project under the Workers’ Welfare
Fund Ordinance, 1971, has already dilated upon in the case of M/s
Attock Gen Limited Vs The Commissioner Inland Revenue, Zone-1, CTO, Islamabad
(ITA No.1403/IB/2024 order dated
11.12.2024). Upon a comprehensive examination of the submissions
advanced by the learned AR, this tribunal held that the appellant falls within
the definition of “industrial establishment” under section 2(f)(i) of the
Workers’ Welfare Fund Ordinance, 1971, as electricity constitutes an “article”
within the meaning of the said provision. The Tribunal rejected the contention
that the intangible or invisible nature of electricity excludes it from being
termed an article, observing that neither statutory language nor judicial
interpretation supports such a restrictive construction. Reliance placed on
constitutional definitions, foreign case law, and various statutory provisions
distinguishing “generation” from “production” was found to be misplaced and
internally inconsistent. The Tribunal further held that the process of
generating electricity results in the production of an article and is not
analogous to construction activity relating to immovable property. Correspondence
issued by the National Transmission & Dispatch Company was deemed to have
no interpretative authority over fiscal legislation. Consequently, the Tribunal
answered the question in the affirmative against the appellant and held that
the appellant is liable to levy of the Workers’ Welfare Fund under the WWF
Ordinance, 1971.
17. For the foregoing reasons, it is held that
where an industrial establishment declares income which falls within the
statutory heads of income under the Income Tax Ordinance, 2001, and such income
enters the computational and assessment framework of that Ordinance so as to
constitute “total income” within the meaning of section 10, the same is
“assessable under the Ordinance” for purposes of section 4 of the Workers’
Welfare Fund Ordinance, 1971, notwithstanding that exemption from tax may
subsequently be claimed or allowed under the Second Schedule to the Income Tax
Ordinance, 2001. The grant of exemption affects only the incidence of income
tax and does not remove the income from the statutory concept of total income
or from the assessable base contemplated by the welfare legislation.
Consequently, income so declared and assessed cannot be excluded from the
computation of contribution to the Workers’ Welfare Fund merely on the ground
that it is exempt from tax. The liability under section 4 of the Workers’
Welfare Fund Ordinance, 1971, is, therefore, duly attracted in such circumstances.
Accordingly, the appeals filed by the appellant are dismissed.
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Sd/- Sd/- (M. M. AKRAM) JUDICIAL MEMBER |
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Sd/- (SHARIF UD DIN
KHILJI) MEMBER |
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