PLJ 2012 Tax Cases (Kar.) 70 (DB)
Present: Muhammad Athar Saeed and Munib Akhtar, JJ.
PAKISTAN TELECOMMUNICATION COMPANY LTD.--Petitioner
versus
DEPARTMENT OF EXCISE OF TAXATION--Respondents
C.P. No. 604 of 2009, decided on 13.6. 2011.
----Ss.5 & 5-A--Constitution of Pakistan
2009 PTD 1602; 2006 SCMR 1738; 2007 CLC 1215; 2006 CLC 1372; 1993 SCMR 29, ref.
Mr. Khurram Rasheed, Advocate for Petitioner.
Mr. Saifullah, Assistant Advocate-General for Respondents.
Dates of hearing: 28.9.2010 and 9.5.2011.
Order
Munib Akhtar, J.--This petition arises under the Sindh Urban Immoveable Property Tax Act, 1958 ("the 1958 Act" or "the Act"). The petitioner is the well-known telecommunications company, which in years gone by was the only supplier of such services in the country, and even today is the largest such provider, and the only provider of such services through landlines. The petitioner owns properties up and down the province, many of which are in Karachi Karachi
2. Learned counsel for the petitioner submitted that property tax under the 1958 Act was payable in Karachi Karachi 20-6-2001 ("the notification"). Learned counsel submitted that in terms of the notification, properties had been divided into residential, commercial and industrial categories, and property tax was payable as per the rates notified for each category. The rates specified for commercial properties are substantially higher than those for industrial properties. The primary basis on which the petitioner contends that its properties are liable to tax as industrial properties is that the telecommunications sector has been declared an industry by the Federal Government by means a notification dated 20-4-2004 ("the federal notification"). This contention formed the core of learned counsel's submissions. Learned counsel submitted that since the petitioner was part of the telecom "industry", any property owned by it ought to be taxed as an "industrial" property. Learned counsel submitted that the term "industrial" had a wide and comprehensive meaning, and that the activities of the petitioner were fully within the ambit thereof. In other words, according to him, the petitioner was carrying on "industrial activities" on its properties, which were liable to tax accordingly. In this regard, he placed reliance on a decision of the Lahore High Court, involving the petitioner itself, and reported as Pakistan Telecommunication Company Ltd, v. Government of Punjab and others 2009 PTD 1602. Learned counsel also sought to distinguish a decision of the Supreme Court reported as Tures Hotel, Islamabad
3. Learned A.A.G. opposed the petition. He submitted that the fact that the telecom sector had been declared to be an "industry" by the Federal Government was not relevant. Even if the petitioner was part of an "industry" for federal purposes pursuant to some policy of the Federal Government, that could not affect the position under the 1958 Act, which was a provincial law and thus fell within the provincial domain. He submitted that this very point, in the context of the notification itself, had already been considered and repelled by a Division Bench of this Court in Arabian Sea Enterprises Ltd. v. Government of Sindh and others 2007 CLC 1215, and an appeal taken against that decision to the Supreme Court had also proved unsuccessful. In its leave refusing order, the Supreme Court had referred to its earlier decision in the Tures Hotel (supra). Learned A.A.-G. submitted that the properties in question had been declared as commercial properties, and were therefore rightly being valued as such under the notification, and taxed accordingly. He further contended that the petitioner had availed the statutory remedies of appeal and revision provided by the 1958 Act, and the orders of the appellate and revisional authorities did not suffer from any legal or other infirmity as would require interference by the Court. Finally, learned A.A.-G. submitted that the vices of section 5A and the valuation table notified in terms thereof had also been considered and upheld by a Division Bench of this Court in Karachi Properties Investment Co. (Pvt.) Ltd. v. Government of Sindh and others 2006 CLC 1372. He prayed that the petition be dismissed.
4. We have heard learned counsel for the parties, gone through the record with their assistance, and considered the case-law relied on by them. Before embarking on an analysis of the 1958 Act, one point must be mentioned. The 1958 Act was enacted by the erstwhile Province of West Pakistan West Pakistan . Thereafter, each province has made many amendments to the Act as applicable therein. Unfortunately, law books do not always faithfully reflect the state of the law as applicable in the different provinces, and in most instances, the reader is left to make his way; as best he can, through a sometimes bewildering hotchpotch of different amendments and substitutions in respect of each province, without any certainty or clarity as to what the state of the law is. We have therefore chosen to use the version of the 1958 Act as available (as a link) at the official website of the Excise and Taxation Department of the Government of Sindh (http ://www. sindh. go v.pk/dpt/Excise%20&% 20 Taxation/IMMOVABLE%20PROPERTY%20TAX%20%2023-02-09.pdt). Unfortunately, even this version is not free from various typographical errors, some of which are fairly egregious, but these can at least be sorted out without too much difficulty. This version shows the state of the 1958 Act as on 23-2-2009 . The present petition was filed on 9-4-2009 , and there is nothing in the Sindh Finance Acts of 2009 and 2010 as is relevant for present purposes. Nonetheless, and we say this with some regret, since it reflects on the ability of the Provincial Government to make up-to-date and accurate versions of the laws of Sindh available there is still some residual doubt as to the accuracy of the text that we have used. (We would draw attention to the situation in the Punjab , in respect of the laws of which an excellent website is available: http://www.punjablaws.gov.pk.) Subject to the foregoing caveat, we turn to an examination of the various provisions of the 1958 Act, and the submissions of learned counsel in terms thereof.
5. We start with the charging provision, which is contained in Section 3(2):
"The tax shall be charged, levied and collected at the rate of twenty percent of the annual value of the lands and buildings."
It will be seen that the charging provision requires two things: (a) lands and buildings, and (b) the annual value thereof. At first sight, this may seem a somewhat strange way of putting it: would not lands and buildings in every case have an annual value? In fact, the answer to this question may not necessarily always be in the affirmative. In any case, we are in the realm of fiscal statutes, and the charging provision must be carefully examined if the nature and scope of the levy is to be properly appreciated. Although the word "land" is defined in Section 2(da) of the Act, the term "annual value" is not defined (and "building" likewise remains undefined). Section 5 lays down the manner for ascertaining the "annual value", and as presently relevant, provides as follows:
"5. Annual value.--The annual value of any land or building shall be ascertained by estimating the gross annual rent at which such land or building... might reasonably be expected to be let from year to year...."
This is what may be called the normal method for determining the "annual value": the "annual value" is the "gross annual rent" at which the property may "reasonably" be "expected to be let from year to year". Section 5A, on the other hand, provides as follow:--
"5A. Valuation Tables to ascertain annual value.--Notwithstanding the provisions of section 5 the annual value may be determined on the basis of the valuation tables as may be notified by or under the authority of Government for various locations."
Thus, Section 5A overrides Section 5 by way of a non-obstante clause, and provides an alternative method of determining the "annual value", namely, on the basis of "valuation tables" notified by the Government for "various locations". Now the Act does not define "valuation tables", nor does it itself provide any direct guidance or clue as to how such tables are to be formed, established or determined. The question as to what are the correct legal principles applicable to the proper interpretation and application of a notification under Section 5A lies at the heart of this petition.
6. As noted above, the main plank of the petitioner's case is that the Federal Government has notified the telecom sector as an "industry", and the learned A.A.-G.has sought to demolish this mainstay by referring to the Arabian Sea Enterprises case. That decision (whereby a number of conjoined petitions were disposed off) involved the application of the notification to hotels. One ground taken by the petitioners was that their sector had been declared to be an "industry" by a circular issued by the Federation, and for that reason, property tax was payable by hotels at the rates applicable to industrial properties, and not commercial properties. After considering the matter at some length (see pp. 1221-1224), the learned Division Bench was pleased to repel the petitioners contention. It was observed as follows:
"It may be true that in order to promote tourism the Federal Government has provided certain concessions to the tourism including hotels etc. to attract investors. However, such concessions or the change of status was only for the purposes of providing specified concessions and incentives and it cannot be said that it has changed the status of the property even for the purposes of assessment of property tax." (pg. 1224)
The petitioner's case on this point is no different from that of the petitioners in the Arabian Sea Enterprises case, and the foregoing observations apply equally to the federal notification relied on by the petitioner. The distinction between federal law (and federal purposes) on the one hand, and provincial law (and provincial purposes) is clear. As presently relevant, the Federation cannot alter the applicability of a provincial law by issuing a notification or circular, nor indeed, does it appear that the federal notification relied on by the petitioner is intended to have any such effect. We are in full agreement with the observations of the learned Division Bench noted above (which are, in any case, binding on us), and therefore, we likewise repel the contention that simply on account of the federal notification in relation to the telecom sector, the properties of the petitioner under the 1958 Act are to be taxed as industrial properties.
7. There is another point in this context that requires to be noted, and that is the distinction between the two words, "industry" and "industrial". "Industry" is a"industrial" is an adjective. Everything that an "industry" (or a member thereof) does is not necessarily "industrial". To take a simple example (and one which we put to learned counsel for the petitioner at the hearing): suppose that the petitioner were to purchase a residential property, to be used as a residence for its area general manager. Would such a property be liable to property tax as an "industrial" property simply because it is owned and used by the petitioner, a member of the telecom "industry"? The answer to this question is obviously in the negative. The submission made on the basis of the federal notification tends to obliterate the distinction between "industry" and "industrial", which in our view, is real and substantial in the present context. We therefore, find no merit in the main submission made by learned counsel for the petitioner. However, the matter does not end here, since in our view, the important (and indeed, crucial) question, namely the proper legal basis of interpreting and applying a notification under Section 5A, still remains to be addressed.
8. Before turning to address this question, two other aspects must first be considered, One relates to the Arabian Sea Enterprises case. For reasons that will presently become clear, it is necessary to note also the other grounds on which the learned Division Bench was pleased to dismiss the hotels' petitions. The learned Division Bench observed that earlier, the hotels had themselves declared their properties as. "commercial" during some general survey that had been carried out under the Act. In this context, it was also noted that at least in some of the cases, the hotels had, after the issuance of the notification, sought to have their properties reclassified as "industrial", and for this purpose had taken recourse to statutory remedies under the Act. However, while those remedies were still being availed, the petitions had also been filed. The learned Division Bench held (relying on Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29) that this was impermissible, and that the petitions of the hotels concerned were liable to be dismissed on this ground as well. Secondly, reference must also be made to the decision of the Supreme Court in Tures Hotel, Islamabad Islamabad
"On the other hand it is also evident that no statutory enactment has been made in the CDA, rules whereby hotels/motels situated in the jurisdiction of CDA, have been included in the term" "industry", "industrial" or "institution", as such appellants cannot claim such relief. The appellants were allotted commercial plots for the construction of hotels. The orders or notifications issued by Federal Government under other laws declaring business of hotel as industry would not affect the nature of building or use of plot as defined in the Regulation No. 3 of CDA."
Thus, even in the context of a federal law relating to property tax, a notification or circular issued by the Federal Government granting the status of "industry" to a particular sector has been held to be ineffective. It is true that, as pointed out by learned A.A.G., when an appeal was taken to the Supreme Court from the decision of this Court in the Arabian Sea Enterprises case, the Supreme Court, while refusing leave to appeal, referred to the Tures Hotel case. (The (unreported) leave refusing order is Beach Luxury Hotel (Pvt.) Ltd. v. Province of Sindh 21-6-2007 .) However, in our view, the reference was in a somewhat different context, being related to the issue of discrimination, a question that was not raised before us by learned counsel for the petitioner in his submissions. It is to be noted further that leave to appeal was refused also on the ground that had found favour with the learned Division Bench, namely that there was an alternate efficacious remedy "already available and already availed".
9. We now turn to the notification, and a consideration of what are, in our view, the correct legal principles applicable to its proper interpretation and application. As noted above, the 1958 Act itself does not provide any direct guidance in this regard. That however, does not mean that the Provincial Government has an untrammeled discretion in the exercise of powers under Section 5A. There is, in law, no such thing as an unfettered discretion. Even if statutory powers are conferred in ostensibly unconstrained terms, the exercise of such powers must be in a structured and regulated manner. The scope and extent of the powers conferred, and the proper exercise thereof, must be determined, inter alia, by examining the scheme and policy of the relevant statute. Now the purpose for which powers have been conferred by Section 5A is to determine the "annual value" of properties; and the objective of this determination is to levy the tax under the Act. As noted above, "annual value" is one of the two elements (the other being "lands and buildings") that together constitute the charging provision of the Act. Thus, in interpreting and applying the notification, the well-known principles applicable to the charging provisions of fiscal statutes will have to kept in mind, and applied as appropriate.
10. When the notification is examined, the first thing to be noticed is that while it divides properties into the three categories of residential, commercial and industrial, it does not, except in certain cases not presently relevant, provide for a specific and detailed description of what sorts of properties fall into the different categories. This may be contrasted with the position in the regulation considered by the Supreme Court in the Tures Hotel case (see at pg. 1743), where detailed descriptions were given of commercial and business plots on the one hand, and industrial plots on the other. This lack of description was also noted in the Arabian Sea Enterprises case (at pg. 1222):
"However, neither the said Notification nor the schedule (Valuation table) annexed thereto specifies the kind of properties to be assessed under each head except the properties falling under the head of concessionary specified commercial properties'."
There are, in our view, at least three possible ways in which a particular property, which, is not expressly provided for therein, can be categorized under the notification--
(a) on the basis of how the property has been declared and/or classified, e.g., on the basis of some survey under the Act, or in terms of some town planning regulation, as applicable, or in terms of the lease relating to the property;
(b) on the basis of how the property is, in fact, being used; or
(c) on the basis of some combination of (a) and (b).
It would seem that the learned Division Bench in the Arabian Sea Enterprises case may have applied apply (a) above (see pg. 1224).
However, it did not make any definite determination on this point since, as noted above, it dismissed the petitions on the ground that statutory remedies were being availed in respect of the proper classification under the notification. In our view, the point is therefore open. In the present case, the petitioner has already availed the statutory remedies. On a consideration of the notification as a whole, in the light of the factors mentioned in Para 9 above, we are of the view that if a property is declared or classified in one category, but is in fact being used in a manner that could bring it in another category, then, unless specific provision to the contrary is made in the notification itself, the property should be placed in that category which imposes the least burden on the taxpayer. Thus, e.g., if the property was earlier declared or classified as commercial, but is in fact being used in a manner that could bring it in the industrial category, then for purposes of the notification, it should be classified in the category that imposes the least burden on the owner of the property (who is the taxpayer under the Act: see Section 3(5)). The reason why this is so is twofold. Firstly, the notification itself indicates that the determination of the "annual value" can be in terms of usage. For example, it is provided as follows:
"Properties built for residential purposes, if being used for commercial purpose, whether self-occupied or rented shall be assessed at prescribed commercial rates of that zone...."
The reference to "properties built for residential purposes" can only mean that the properties were intended to be used for residential purposes, but are in fact being put, to commercial use. Rates for commercial properties are of course, substantially higher than those for residential properties. Thus, where the intent is to determine the "annual value" on the higher side, express provision has been made in the notification. It would seem therefore that the meaning of the expressions "residential", "commercial" and "industrial" properties, as used in the notification, cannot be limited only to properties which may have been declared or classified as such (possibility (a) above). These expressions could also mean properties being used in a manner, or for purposes that come within the descriptive categories of "residential", "commercial" and "industrial", as the case may be (possibility (b) above). In our view, the proper application of the notification requires a combination of (a) and (b) (i.e., possibility (c) above), and the reason why this is so brings us to the second point. The "annual value" is part of the charging provision of a fiscal statute. Its determination is therefore subject to the fundamental rule of interpretation that where the relevant' statutory language is unclear or ambiguous, or no express provision has been made, and two reasonable interpretations are possible, then that interpretation shall be preferred which reduces the burden on the taxpayer. There is an ambiguity in the notification. The precise meanings of the expressions "residential", "commercial" and "industrial" properties are not clear. Two reasonable interpretations are possible. In our view therefore, the foregoing rule will apply in all cases for which the notification does not make any express provision. The case of the petitioner falls precisely in this category. As noted above, there is no general express description of "commercial" and/or "industrial" properties. The petitioner's properties do not come within any of the cases expressly provided for. If therefore, its properties were earlier classified or declared as "commercial", but are in fact being put to a use that could bring them within the "industrial" category, then for purposes of the notification, the properties must be placed in that category which imposes the least tax burden. It would seem that that would invariably be the "industrial" category.
11. The next question that therefore requires consideration is as to what is meant by "industrial" properties in the context of the notification, and with reference to the petitioner. As noted above, for this purpose learned counsel for the petitioner placed reliance on the decision of the Lahore High Court reported as Pakistan Telecommunication Company Ltd. v. Government of Punjab and others 2009 PTD 1602. We have carefully considered the views expressed in that case. After considering the correct meaning of "industry" and "industrial", the High Court made the following observations with regard to the petitioner in para 14:
"Looking into the above discussion, if this Court looks into the work being carried out in the building under discussion, the conclusion shall not be difficult to draw. The petitioner in this case is an Organization which is providing service in terms of telephone connections. The building is used for fixation of machinery which connects thousands of the people who are getting services from the said telephone exchange. It has connecting staff and have offices also. It is a huge and complicated network, in which, most of the employees are Engineers and Technicians. It also have some administrative staff as well which deals with preparation and receiving the bills etc. However, major portion of the staff is placed to control and take care of the machines which is the basic services provider to a number of telephone users. There cannot be any doubt that the machinery in use, its function and its maintenance up-keep and repairs, whenever required, is totally the job of artisans, technicians and other qualified Engineers etc. through the skilled staff. The building being in use for the industrial purposes, is obviously an industrial unit, fully covered within the classifications, provided by the Provincial Government and is entitled to all the benefits in terms of reduced rates etc., provided therein."
The High Court thereafter concluded its judgment in the following terms:
"Any building unit in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, broken up or demolished, or in which materials are transformed; including shipbuilding, and the generation, transformation, and transmission of electricity telegraphic and telephonic installation and motive power of any kind is carried out is an `Industrial Unit'." (para 15)
12. In our view, and with the utmost respect, the Lahore High Court has perhaps put the matter too broadly. As recognized by the High Court itself, the petitioner is in the business of providing telecommunication services. Those services are provided through electromechanical and/or electronic devices (e.g., telephone exchanges). These devices may require periodic (or even constant) supervision, care, maintenance, repair or even replacement. For this purpose, trained engineers and technicians must be available, it would seem at all hours. But does the repair, care, maintenance, etc. of the devices itself amount to "industrial" activities? In Para 15, the High Court has observed that "any building unit in which articles are ... altered, cleaned, repaired ... or in which materials are transformed; including ... the generation, transformation, and transmission of electricity telegraphic and telephonic installation and motive power of any kind is carried out is an `Industrial Unit'." With respect, we cannot agree with this astonishingly broad description. For example, the mere cleaning or repairing of articles does not of itself make the activity industrial. Likewise, any building in or from which a device is transmitting electrical, telegraphic or telephonic signals cannot, for that reason alone, be held to be an "industrial unit". In our view, the High Court has (if we may say so with respect) conflated "industrial" activity with what might be called technical support. The telephonic exchanges owned and operated by the petitioner, being electromechanical and/or electronic devices, may certainly require technical support. But that does not, in and of itself, make the activities carried out in relation thereto "industrial". We appreciate that there is not necessarily a sharp or clear cut dividing line or separation between technical support and industrial activity. The former may well, in some circumstances, shade off into the latter. Nonetheless, there is a distinction between the two. Thus, industrial activity itself may require technical support. For example, the operation of a textile mill is undoubtedly industrial activity. But the machines deployed at the mill may themselves require repair, maintenance, care or even replacement, i.e., technical support, and for this purpose, the mill may employ many engineers and technicians. In our view, as presently relevant, the description of the petitioner's activities as given in Para 14 of the Lahore High Court's decision (which was reaffirmed before us by learned counsel for the petitioner) may well amount only to technical support. However, in our view, there must be some additional elements present for the technical support to amount to industrial activity. Those additional elements must be activity or action directly in relation to the petitioner's telephone exchanges (or the other devices used by it to provide telecommunications services), and must be substantially more than a mere servicing or care thereof. If so, then it may be that the petitioner does carry out industrial activities on its properties, in which case the annual value of the properties would have to be determined on the basis that they are industrial properties. If not, then the properties must be brought to tax on the basis that they are commercial properties. However, there is nothing on the record in relation to such additional activities or actions, if any.
13. In view of the foregoing, we dispose off this petition in the following terms. The petitioner shall, in respect of each property where it claims to carry out industrial activities, make an application to the Excise and Taxation Department, giving full details of its activities, and in particular, the reasons why, according to the petitioner, those activities amount to more than mere technical support (in the sense that this phrase has been used above). For this purpose, the petitioner shall, as appropriate, separately identify those activities that it considers to be technical support, and the additional elements that, according to it, when taken together with the technical support, amount to industrial activity. Of course, the matter will have to be examined in its totality. The concerned authority shall give an opportunity of hearing to the petitioner, and if the authority is referring to, or relying on, any expert or technical advice or assistance, the report of such expert shall also be made, available to the petitioner for comment. The authority shall then pass a reasoned order separately for each property in respect of which a claim as above is being made by the petitioner. The order must be in conformity with this judgment, and in particular, the parameters and guidelines set forth in Paras 10 and 12 herein above, and the reasons must show that there has been a proper application of mind by the adjudicating authority in this regard. The entire exercise shall be completed within 60 days from the date of announcement of this judgment, and the petitioner shall, if aggrieved by the order(s), have the right to avail such statutory remedies as may be available. The authorities exercising appellate and/or revisional jurisdiction must also ensure proper compliance with the terms of this decision and in particular, Paras 10 and 12 hereof. Furthermore, to ensure that there are no procedural or other issues or difficulties, the impugned departmental orders currently in the field, being the appellate and revisional orders dated 24-1-2007 and 16-11-2007 , are set aside and quashed. Finally, and by way of interim arrangement, the petitioner may make payment of the property tax at the rates applicable to industrial properties, but must give a bank guarantee (or guarantees) acceptable to the Nazir of this Court for the differential amount(s). The said guarantee(s) must be kept alive till such time .as the order(s) as above are made and/or any statutory remedies against the same are availed or the period thereof stands exhausted. The guarantee(s) may thereafter be encashed should the relevant order (whether original, appellate or revisional) be against the petitioner. The petition stands disposed off in the above terms, without any order as to costs.
(R.A.) Order accordingly
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