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Dr. Ikramul Haq
Civilized governments all over the world appreciate those who collect taxes on their behalf for the well-being of their fellow countrymen. Their services are also compensated allowing them to withhold a percentage of collection as incentive/compensation to meet expenses incurred by them. In Pakistan, the converse is practiced as the withholding agents are burdened with many obligations and yet maltreated. They are condemned into forced labour. No financial compensation is given to them for man-hours consumed and other expenses they bear to collect taxes on behalf of the State. Adding insult to injury, they are subjected to penal actions by the Federal Board of Revenue (FBR).
It is an incontrovertible fact that FBR field officials collect less than 10% of total revenues with their own efforts; the rest comes through withholding tax agents, voluntary payments, and advance tax. Those acting as withholding agents are victims of highhandedness and humiliation. In most of the cases, they are made to pay the same amount that FBR had already received from persons on whose behalf tax was to be deducted/collected. In many cases tax is demanded while the person/institution is exempt from levy of tax. It is held by higher courts that where tax is not payable, withholding/advance tax should also not be enforceable. But these judgements are not followed by field officers. FBR does not issue notices to delinquent taxpayers after the deadline of filing of returns, but instead, ask withholding agents to pay the amount! This is done in utter violation of dictum laid down by higher courts and authoritatively elaborated/enunciated by Lahore High Court in Sui Northern Gas Pipelines v Deputy Commissioner of Inland Revenue, etc (2014) 110 TAX 221 (H.C. Lah.).
No government, including the present one, has ever shown any inclination to check the highhandedness of tax officials vis-à-vis rights of withholding agents/taxpayers. FBR twists the arm of honest taxpayers and withholding agents for meeting its targets and gives protection to non-filers and tax evaders. FBR is bent upon destroying business climate through expropriatory taxation and unlawful acts, even state-owned corporations and government departments frequently receive notices of unlawful demands for alleged defaults committed in deducting/collecting taxes at source after passage of many years even when returns by taxpayers have already been filed and finalised.
The withholding tax agents/taxpayers have to incur heavy cost to seek remedy from courts for unlawful demands created by tax officials as there is no effective mechanism available to check their highhandedness. Court litigation is costly and in the end, taxpayers/withholding agents get delayed justice and that too without any “order as to cost”. This merely elates the Tax Department as it has already met its targets by using coercive measures.
Day by day, the federal and provincial governments are introducing more and more harsh taxes. People are getting nothing in return. They have even to pay for facilities like health and education. Mr. Justice (retired) Nasim Sikander in CIT Companies, Lahore v State Cement of Corporation (Pvt) Ltd, Lahore 2002 PTD 1603 made the following remarks:
“The collection of revenue even as an agent casts a number of duties upon the person required to do so. He is to maintain correct and faithful accounts of all the sums received and then to see their safe credit to the national coffer. He may need additional staff for this purpose and may even be liable if any of his staff members fumbles in accounts deliberately or misappropriate even smallest amount of public money collected. An agent appointed by law or deemed under a similar statute is also liable to a number of penalties if he fails or falters on any account. This phenomenon in fact is a recent development in tax regimes that persons who are otherwise neither employed by the State nor they represent it in any manner are designated to collect Revenue of the State without any ostensible reward. This is a duty cast upon them with no benefit and is coupled with a constant fear of prosecution, penalties and punishments. It is one of the several other prices that one has to pay to live in a society.
These observations by the learned Judge 17 years back have not elicited the attention of our revenue-obsessed governments as even today they are not only forcing the citizens of Pakistan to collect tax on their behalf without any reward or compensation but also imposing on them heavy penalties for inadvertent lapses or non-deduction due to genuine reasons or where even tax is already paid by the person on whose behalf it was to be withheld.
The woes of withholding agents/taxpayers have been further increased in the wake of Finance Act, 2019 as they have to withhold not only more taxes but also to inform FBR about non-filers or seek on their behalf clarification from the Commissioner that they are not liable to withholding tax etc. The citizens complain that they have to incur “cost” of getting exemption certificates though they are entitled to it. Without greasing the palm of the corrupt, such certificates are not issued.
It is time that the Supreme Court may take note of the fact that liability to withhold tax without compensation is “forced labour” that is prohibited under Article 11 of the Constitution. Ten years back, through the Finance Act, 2009, sub-section (8) was inserted in section 168 of the Income Tax Ordinance, 2001 that says: “Notwithstanding anything contained in any other law or any rules for the time being in force, no amount shall be deducted on account of service charges from the tax withheld or collected by any person under the provisions of this Ordinance”. This provision is in clear violation of Article 11(2) of the Constitution which says that “all forms of forced labour are prohibited”.Withholding agents cannot be compelled to render forced labour for performing State functions, for which thousands are employed in FBR and whose salaries are paid from the same taxpayers’ money.
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The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS).