Income Tax Ordinance (XXXVI of 1984)
Section 2(58)
In the relevant assessment year as per section 2(58) of the Ordinance 'Salary' includes any wages; any annuity, pension or gratuity; any fees, commissions, allowances, perquisites or profits in lieu of, or in addition to, salary or wages; any advance of salary. Notably, there was no mention of *remuneration' in the definition of salary. Finance Act, 2012 by amending section 2(58) of the Ordinance 'salary' includes "(a) any pay or wages" keeping other inclusions as it were including amending portion "(c) leave encashment" amended through Act 2012. [73 DLR 437]
Section 16
Incorporation of Section 16 CCC in the Ordinance, 1984 is against the aim, spirit, purpose and object of said ordi- nance and also violative of the Constitution......(19)
The concept of Alternative Minimum Tax (AMT) has been introduced in many countries around the world where taxpayer requires to pay a minimum amount of tax if tax liability under reg- ular method falls short of a minimum amount of tax. ......(24)
From the mandate of aforementioned Articles of the Constitution it is crystal clear that for the purpose of insertion of Section 16 CCC in the Ordinance, 1984 a bill was presented before the Parliament as per the provision of Article 80(1) of the Constitution which is obviously a money bill. Again, Article 81(3) of the Constitution ensures that the aforementioned money bill while presented to the President for his assent, bears a certificate under the hand of the Speaker and such certificate is conclu- sive and shall not be questioned in any court. Again as soon as the President assented that money bill under Article 80(5) of the Constitution it becomes an Act of the Parliament. ....(28)
It can be held that though the Martial Law is unconstitutional, but in order to protect and preserve the continuity and status quo in the workings and functions of the Government as well as to remove the suffering of the mass peo- ple of the country all other Governmental functions, Orders, acts, actions, transaction taken by the then illegal and unconstitutional Martial Law Ruler condoned provisionally as they are past and closed transactions. .....(42)
It is a settled principle of law that a very wide latitude is available to the legislature in the matter of formulation of tax law i.e. fiscal policy and in exer- cise of the power of judicial review, court do not ordinarily interfere with the policy decisions, unless such policy could be faulted on the ground of mala- fide, arbitrariness, unreasonableness, unfairness etc. ......(46)
S. Alam Beg Manufacturing Mills Ltd vs. Government of Bangladesh (Borhanuddin J) (Civil) 20 ADC 371
১৬ ধারা
১৯৮৪ সালের অধ্যাদেশে ১৬ সিসি সি এর অন্তর্ভুক্তি উক্ত অধ্যাদেশের লক্ষ্য, চেতনা, উদ্দেশ্য এবং লক্ষ্যের পরিপন্থী এবং সংবিধানেরও লঙ্ঘন......(১৯)
বিকল্প ন্যূনতম কর (এএমটি) এর ধারণা বিশ্বের অনেক দেশে প্রবর্তিত হয়েছে যেখানে করদাতাকে একটি ন্যূনতম পরিমাণ কর দিতে হয় যদি নিয়মিত পদ্ধতিতে করের দায় ন্যূনতম পরিমাণের কম হয়।......(২৪)
সংবিধানের উপরোক্ত অনুচ্ছেদগুলির আদেশ থেকে এটি স্পষ্ট যে ১৯৮৪ সালের অধ্যাদেশে ১৬ সিসি সি সন্নিবেশিত করার উদ্দেশ্যে সংবিধানের ৮০(১) অনুচ্ছেদের বিধান অনুযায়ী সংসদে একটি বিল উত্থাপন করা হয়েছিল যা স্পষ্টতই একটি অর্থ বিল। আবারও, সংবিধানের ৮১(৩) অনুচ্ছেদ নিশ্চিত করে যে রাষ্ট্রপতির সম্মতির জন্য উপস্থাপিত উপরোক্ত অর্থ বিলে স্পিকারের হাতে একটি শংসাপত্র থাকবে এবং এই জাতীয় শংসাপত্র চূড়ান্ত এবং কোনও আদালতে প্রশ্ন করা যাবে না। আবারও যখন রাষ্ট্রপতি সংবিধানের ৮০(৫) অনুচ্ছেদের অধীনে সেই অর্থ বিলে সম্মতি দেন তখন এটি সংসদের একটি আইনে পরিণত হয়।....(২৮)
এটি ধরে নেওয়া যেতে পারে যে যদিও সামরিক আইন অসাংবিধানিক, তবে সরকারের কাজকর্ম এবং কার্যাবলীগুলির ধারাবাহিকতা এবং স্থিতাবস্থা রক্ষা ও সংরক্ষণের পাশাপাশি দেশের সাধারণ মানুষের কষ্ট দূর করার জন্য তৎকালীন অবৈধ ও অসাংবিধানিক সামরিক আইন শাসক কর্তৃক গৃহীত অন্যান্য সকল সরকারী কার্যাবলী, আদেশ, কাজ, পদক্ষেপ, লেনদেন অস্থায়ীভাবে মওকুফ করা হয়েছে কারণ সেগুলি অতীত এবং সমাপ্ত লেনদেন।.....(৪২)
এটি আইনের একটি প্রতিষ্ঠিত নীতি যে কর আইন অর্থাৎ রাজস্ব নীতি প্রণয়নের ক্ষেত্রে আইনসভার জন্য অত্যন্ত বিস্তৃত সুযোগ রয়েছে এবং বিচারিক পর্যালোচনার ক্ষমতা প্রয়োগের ক্ষেত্রে, আদালত সাধারণত নীতিগত সিদ্ধান্তে হস্তক্ষেপ করে না, যদি না এই জাতীয় নীতি কু-মতলব, স্বেচ্ছাচারিতা, অযৌক্তিকতা, অন্যায় ইত্যাদির ভিত্তিতে ত্রুটিযুক্ত হতে পারে।......(৪৬)
এস. আলম বেগ ম্যানুফ্যাকচারিং মিলস লিমিটেড বনাম বাংলাদেশ সরকার (বোরহানউদ্দিন জে) (দেওয়ানী) ২০ এডিসি ৩৭১
The Income Tax Ordinance, 1984
Section 29 (1) (XXVII)
The question of law that was made the subject matter of the Reference cases whether the expenditure on the head 'Zakat' is covered by the provisions of section 29(1) (XXVII) of the Income Tax Ordinance, 1984. It was contended on behalf of the petitioner herein that the payment of 'Zakat' by it is covered by the provision of section 29(1)(XXVLI) of the Income Tax Ordi- nance, 1984 Islami Bank Bangladesh Limited vs. The Commissioner of Taxes (Md Ruhul Amin CJ) (Civil) 6 ADC832
Section 35(2)
The High Court Division further held that the Commissioner of Taxes (Ap- peals) rejected the prayer for acceptance of the cost of construction as declared by the petitioner and the estimate of the D.C.T. for sales was set aside for not being based in accordance with the past appellate order but at the same time he directed the DCT to estimate the sales by allowing rebate of 15 per cent of the construction cost as per rate of PWD and calculating mark-up of 22.5 per cent on the net sales and further the as- sessee claimed rebate at the rate of 15 per cent of the construction-cost for per- sonal supervision for the both assess- ment years for the first time before the Commissioner of Taxes (Appeals) with- out raising this claim before the DCT and the Commissioner of Taxes (Ap- peals) readily accepted such claim of demand for rebate and calculation of the sales on the basis of so-called mark-up without however any reference to any law and the Appellate Tribunal, having found the orders of the Commissioner of Taxes fair and reasonable maintained the same for both the assessment years in question. Oriental Real Estate Ltd vs. The Commissioner of Taxes (Md. Tafaz- zul Islam J) (Civil) 10 ADC 31
Section 35(3)- The provision in section 35 (3) of the Ordinance, 1984 does not exonerate the assessee from supplying evidence in support of the claims for allowances/deductions Section 35(3) of the Ordinance indeed directs the assessee to furnish a copy of the trading account, profit and loss account and the balance sheet of the income year certified by a Chartered Accountant, but that does not obviate the requirement to provide evidence in support of the claims made by the assessee. We reiterate the finding of the High Court Division in the decision reported in 58 DLR 531 that accounts audited by a firm of Chartered Accountants cannot be said to be sacrosanct. When the tax authority indicates that any claims are disallowed on account of lack of verifiable evidence, it is incumbent upon the assessee to satisfy the tax authority by providing necessary supporting evidence. The provision in section 35 (3) of the Ordinance, 1984 does not exonerate the assessee from supplying evidence in support of the claims for allowances/deductions. The appeal is allowed. The judgement and order by the High Court Division is set aside. ...Commissioner of Taxes =VS= Conference & Exhibition Mgmt Ser. Ltd., [8 LM (AD) 34]
Section 46A(4)
Applied for tax holiday under section 46A to the National Board of Revenue and the Deputy Commissioner of Taxes forwarded the said application for con- sideration. The Member (Taxes appeal and exemption) suspected the date of commercial production mentioned in the application and presumed that the application was not made within the prescribed time. Thereupon, it preferred a review petition under section 46A(4) of the Income Tax Ordinance. The writ respondent No.4 rejected the said appli- cation by the impugned order dated 10th March, 2008. National Board of Revenue vs. Rising Spinning Mills Ltd(S.K. Sinha J) (Civil) 8 ADC 541
Section 46A(1), 46A(2)(1)- Tax Exemption- Gazette notification was not operated by giving retrospective effect- Section 46A(1) of the Ordinance provides that if any undertaking which comes under the ambit of industrial undertaking, tourist industry or physical infrastructure facility set up in Bangladesh between 01.07.1995- 13.06.2000 shall be exempted from the tax payable under the Ordinance. It is admitted that unit No.2 of the writ petitioner company has commenced its commercial operation on 16.06.1997. An application for tax exemption was filed on 10.12.1997 before the said undertaking was included within the ambit of the physical infrastructure facility by gazette notification on 01.12.1999. Due to this, the application was rejected lawfully. Moreover, the oil tank of the writ petitioner company applied for tax exemption on 12.06.2000 after the gazette notification comes into operation. The application was not made within the stipulated time as provided in Section 46A(2) (f) of the Ordinance. Section 46A(2)(f) of the Ordinance implicates that the application for approval of tax exemption is to be made within 180 days from the date of commencement of commercial operation or production. From the materials on record, it appears that the gazette notification was not operated by giving retrospective effect. Therefore, the rejection of the application was correct and proper. The oil tank in question is not entitled to get tax exemption in accordance with law. The nature of oil tanker comes within the ambit of the physical infrastructure facility in 02.12.1999, but unit No.2 of the writ petitioner company started its commercial operation on 16:06.1997 and made application for tax exemption on 12.06.2000, which is not within the statutory period of 180 days from the date of its commencement. As the oil tank in question was not within the purview of physical infrastructure facility at the relevant time when they made the application for tax exemption on 04.02.1988, the rejection of that application was legal... Ministry of Finance, BD-VS- Summit United Tanks Terminal Ltd., [10 LM (AD) 181]
Constitution of Bangladesh, 1972
Article 102 read with Income Tax Ordinance, 1984
Section 46A
The petitioner company is the owner of the 1" private sector Inland Containers Depot (ICD) established in the Chattogram Port Area providing off-dock facility to the container owners and other incidental facilities. - Section 46A of the Ordinance, 1984 inserted through the Finance Act, 1995 every statute is primafacie prospective unless it is expressly or necessary implication made to have a retrospective operation.
Held; it appears that the gazette notification was not operated by giving retrospective effect as such applications seeking exemption by the petitioner company were rejected justly and correctly by the NBR inasmuch as the 'container terminal' of the petitioner company was not entitled to get tax exemption before publication of gazette notification dated 02.12.1999. As the 'container terminal' in question was not within the purview of physical infrastructure facility when the petitioner company filed application seeking tax exemption and thus the NBR justly and legally rejected the application for exemption and also correctly rejected the review application dated 31.01.2000 seeking review of earlier order dated 18.10.1999 since there left no scope to review of that application by the NBR. - Accordingly, we hold that the SRO No.354-Ain/99 dated 02.12.1999 having effect from the date of its publication left no scope to allow tax exemption to the 'Unit-2' of the respondent company and the NBR justly and legally rejected the applications filed by the respondent company. [Para-17 & 18] [31 BLT (AD) (2023) 1]
Section 79, 82(1)
Petitioner's prayer for exemption to de- posit 20% of the disputed tax at the time of filing appeal before of the Taxes Ap- pellate Tribunal. BRAC vs. National Board of Revenue represented (Md. Joynul Abedin J) (Civil) 6 ADC 544
The Income Tax Ordinance 1984 (Ordinance XXXVI of 1984)
Section 83(2), 83A(1), 93/84, 173
The Appellate Tribunal may amend any order passed by it to correct any error apparent from the record either of its own motion or the matter being brought to its notice by any other Income Tax Authority. From the aforesaid provision it is clear that Commissioner of Taxes is included as one of the income tax authorities and as such we are of the view that the matter has been brought to the notice of the Tribunal by an authorised authority and as such there is no error in this regard. Akbar Hussain, Proprietor vs. Taxes Appellate Tribunal (Amirul Kabir Chowdhury J) (Civil) 4ADC 493
Section 92-Recover taxes- Both the appeals are disposed of and the impugned judgment delivered by the High Court Division is set aside and the proceedings of the Special Cases pending before the Special Judge, Dhaka abated and the appellant is at liberty to recover taxes from the heirs of respondent No. 1 of both the appeals as per section 92 of the ordinance. ......AC of Taxes VS BM Baker Hossain, [3 LM (AD) 22]
Section 92- We are of the view that the legal representatives shall be liable to pay tax or other sum payable under Ordinance but the liabilities of the legal representatives under this Ordinance shall be limited to the extent to which the estate of the deceased is capable of meeting the liability. ......AC of Taxes VS BM Baker Hossain, [3 LM (AD) 22]
Constitution of Bangladesh, article 128 and Income Tax Ordinance, 1984 section 120 and 163 (3) Whether audit report has any bearing upon the subjective opinion of assessing officer: The Audit Department has been invested with the authority to inspect the accounts of Revenue Department. The Comptroller and Auditor General is authorized to direct any of his officers to conduct audit of tax receipts or refunds under section 163 (3)(g) of the Income Tax Ordinance. The High Court Division has opined that the CAG has got no jurisdiction to check the merit or demerit of subjective opinions of the assessing officers with regard to allowing or disallowing a particular claim of the concerned assessee. This view of the High Court Division is erroneous inasmuch as if the audit report does not have any bearing in the subjective opinion of the assessing officer, the very purpose of auditing pursuant to article 128 of the constitution is to be frustrated. If no action can be taken against any irregularities detected through auditing of accounts, auditing itself becomes unnecessary. In the instant case, for example, concerned DCT has allowed financial expenses of an amount of Tk. 575,49,249/- as demanded by the assessee which was not supported by annual report etc. and the audit report has detected this irregularity. If this irregularity as detected by the audit report does not trigger any proceeding under section 120 of the Income Tax Ordinance, 1984, the power conferred to the CAG under section 163(3)(g) of the same Ordinance becomes fruitless. ...(Para 14)
Income Tax Ordinance, 1984 section 120 and 163 (3) Audit report prepared by the Local Audit Office of the CAG is one of the factors that enables the Inspecting Joint Commissioner to determine whether any order of Deputy Commissioner of Taxes is erroneous or not: Going through the provision of section 120 of the Income Tax Ordinance, 1984 we find that the Inspecting Joint Commissioner may call for and examine the record of any proceeding under this Ordinance if he considers that any order passed therein by the Deputy Commissioner of Taxes is erroneous in so far as it is prejudicial to the interests of revenue. Provisions of section 120 of the Income Tax Ordinance, 1984 read with section 163(3)(f) and(g) of the same Ordinance lead us to irresistible conclusion that audit report prepared by the Local Audit Office of the CAG is one of the factors that enables the Inspecting Joint Commissioner to determine whether any order of Deputy Commissioner of Taxes is erroneous or not. The audit report better equips the Inspecting Joint Commissioner to apply his discretion to detect errors committed by Deputy Commissioner of Taxes. Therefore, the allegation that the auditors of the CAG have acted like supervisory officers of concerned assessing officer is devoid of any substance. ...(Para 15) 16 SCOB [2022] AD 1
Income Tax Ordinance, 1984
Section 152D(2)(a)
The petitioner is a private limited com- pany. It filed a return showing income at TK. 1,42,532.00 for the assessment year, 1994-95 but the Deputy Commis- sioner of Taxes, respondent No.2, completed the assessment showing the com- pany's income at TK.26,27,486.00 only for the said year. M/S. Concord Ready Mix vs. Tax Settlement Commission (Mohammad Fazlul Karim J) (Civil) 8 ADC 428
Sections 154 (2) and 60- The Appellate Division found that the High Court Division observed that the questions raised were absolutely questions of fact which required to be proved with the help of evidence. The High Court Division came to a finding that both the appellate forum below had given concurrent findings in this matter and that it was not inclined to interfere with the forum created under section 160 of the Income Tax Ordinance, 1984. The High Court Division noted that even the very demand notice issued on 29.11.2006 clearly stood against the contention of the learned Advocate for the petitioner. Therefore, the High Court Division concluded that the question formulated in this reference was answered in the affirmative and in favour of the respondents and against the assessee- applicant-petitioner. Accordingly, this civil petition is dismissed. Dhaka Insurance Ltd VS Commissioner of Taxes, Dhaka, [1 LM (AD) 182]
Section 160, 160(4), 161 (2)- Section 160 of the Ordinance does not provide for any such action. Clearly it is for the assessee to formulate any point of law and make the reference to the High Court Division in the prescribed form. Under section 161 (2) the High Court Division is required only to hear and decide the question of law raised and, therafter, deliver its judgement stating the grounds on which the decision is founded. No question of law arose in the reference the respondents were not required to admit or deny the reference. ...M/S Ali Garments Limited =VS= Commissioner of Taxes, [9 LM (AD) 293]
The Income Tax Ordinance, 1984, 1994
Section 165, 166
The Rule of Law is of Fparamount importance which requires the highest court to hold that the prosecution of the offence under Chapter XXI is permissible only after the proceedings under sections 83, 93 and 128 of the Income Tax Ordinance were exhausted. This contention of Mr. Hossain, as understood. merely reiterates his earlier contention in this case that the Income Tax Ordinance being a civil legislation and solely designed to fix civil liability to pay income tax, the prosecution of criminal offences under chapter XXI, particularly under sections 165 and 166 of the Ordinance should be allowed only after first reopening the previously closed assessment of the respondent.......(15) Government of the People's Republic of Bangladesh vs. Iqbal Hasan Mahmood (Md. Joynul Abedin J) (Civil) 811
The petitioner was granted citizenship of United Kingdom in December, 1965 and he got British Passport in 1966 as a citizen of United Kingdom. At the same time he is also a citizen of Bangladesh holding dual citizenship. The petitioner came to Bangladesh on the 1st August, 2001 and went to Sylhet to see his ancestral house and to renovate it and to reside there at the end of his life, and to his utter surprise he came to learn that the property has been declared as enemy property, now vested and non-resident property and the Government has taken up the management of his ancestral property. Achyutananda Das VS. Government of Bangladesh (Mohammad Fazlul Karim J) (Civil) 818
Seeking declaration of title....(1) From the plaintiff's side no material was brought on record to show that interest of Sabjan Nessa Bibi in the jote was extinguished in any manner either by auction purchase by the landlord or by settlement by the landlord as claimed by the plaintiffs to Abdul Majid and that the plaintiffs by reliable evidence also could not prove possession of the land in suit while the suit is for mere declaration of title. On the aforesaid findings the High Court Division discharged the Rule...(6) Mongal Sarder being dead his heirs vs. Md. Azahar Ali Pk (Md. Ruhul Amin J)(Civil) 5 ADC 822
Sections 165 and 166-Offences under sections 26 and 27(1) of the ACC Act, 2004 and sections 165 and 166 of the Income Tax Ordinance, 1984 are completely separate and distinct and one is not dependant on others, Therefore, the present case under sections 26 and 27(1) of the ACC Act, 2004 shall proceed independently. Although the petitioner was earlier acquitted in a case under sections 165 and 166 of the Income Tax Ordinance, 1984 it will not put any embargo on the trial of the present case. Mirza Abbas Uddin Ahmed vs State (Criminal) 75 DLR (AD) 75 DLR (AD) 182