DEDUCTION / PAYMENT OF TAX

Transcription

1 Chapter 23 DEDUCTION / PAYMENT OF TAX Section Rule Topic covered (For CA Mod F & ICMAP students) Section 165A Rule 39A to 39F Topic covered Furnishing of information by banks 166 Priority of tax collected or deducted 137 Due date of payment of tax 167 Indemnity A 123, 124 & 125 Recovery of tax out of property & through arrest of taxpayer Recovery of tax by district officer (revenue) 138B Bankruptcy Collection of tax in case of private companies and AOP s Recovery of tax from persons holding money on behalf of a taxpayer 147 Advance payment of tax , 148A &158 Deduction or collection of tax at source 168 Credit for tax collected or deducted 175 Power to enter and search premises Notice to obtain information or evidence 220 Receipts for amounts paid 141 Liquidators Time of deduction of tax 146A Exemption or lower rate certificate 146B 159 Rules for rats of tax deduction Refunds Default surcharge Payment of tax collected or deducted Failure to pay tax collected or deducted Recovery of tax from whom the tax was not collected or deducted Recovery of advance payment or deduction of tax at source Certificate of collection or deduction of tax Statement of tax deduction A Rule 84 to 90 Recovery of tax due by non-resident member of an AOP Recovery of tax from persons assessed in Azad Jammu & Kashmir Initiation, validity, etc., of recovery proceedings Tax arrears settlement incentives scheme Additional payment for delayed refunds Reduction in default surcharge, consequential to reduction in tax or penalty Registration of income tax Practitioners MCQ S with solutions ICMAP & CA Mod C past papers theoretical questions Conceptual Approach to Taxes 407

2 For CA MOD F & ICMAP students 1. Due date of payment of tax [Section 137] SR. Due date of payment of tax 1. The tax payable by a taxpayer on the taxable income of the taxpayer including minimum tax or tax payable by a retailer for a tax year shall be due on the date for furnishing of return of income for that year. 2. Where any tax is payable under an assessment order or an amended assessment order a notice shall be served upon the taxpayer specifying the amount payable within 30 days from the date of service of the notice. 3. In case of provisional assessment, tax shall be payable after a period of 45 days from the date of service of the notice. However, taxpayer may pay the tax payable prior to expiry of the period of 45 days. This facility is not for tax payable with the income tax return. 4. Where a taxpayer is allowed to pay tax by instalments and the taxpayer defaults in payment of any instalments, the whole balance of the tax outstanding shall become immediately payable. This facility is not for tax payable with the income tax return. 5. Upon written application by a taxpayer, the Commissioner Inland Revenue on reasonable grounds shown may grant the taxpayer an extension of time for payment of tax due or in instalments of equal or varying amounts as the Commissioner Inland Revenue may deem fit. 6. The payment of tax after having an extension of time to pay tax due or tax to be paid in instalments shall be made along-with default surcharge u/s 205 of the Ordinance. 2. Recovery of tax out of property and through arrest of taxpayer [Section 138] For recovery of any tax due by a taxpayer, the Commissioner Inland Revenue may serve a notice requiring him to pay the said amount within such time as specified in the notice. If the amount of tax is not paid within specified time or within the further time as allowed by the Commissioner Inland Revenue, then he may proceed to recover from the taxpayer the said amount by one or more of the following modes, namely: - attachment and sale of any movable or immovable property of the taxpayer; appointment of a receiver for the management of the movable or immovable property of the taxpayer; and arrest of the taxpayer and his detention in prison for a period not exceeding six months. Form of notice of recovery to be issued by commissioner inland revenue [Rule 123] The notice required to be served upon the taxpayer u/s 138 shall be in the form as prescribed in part-ill of First Schedule to these rules. Mode of service of notice [Rule 124] The notice referred to in rule 123 and other notices under rules contained in this part shall be served as provided in section 218 of the ITO, Time limit for execution of the notice [Rule 125] No step in execution of the notice as per rule 123 shall be taken until the period specified in the said notice has elapsed. If the Commissioner Inland Revenue is satisfied that the defaulter is to cancel, remove or dispose of the whole or any part of such of his moveable property as would be liable to attachment in execution of a notice that the realization of the amount of notice would in consequence be delayed or obstructed, he may at any time after the issue of the notice under rule direct, for reasons to be recorded in writing, an attachment of the whole or part of such property: If the defaulter whose property has been so attached furnishes security to the satisfaction of the Commissioner Inland Revenue, such attachment shall be cancelled from the date on which such security is accepted by the Commissioner Inland Revenue. 3. Recovery of tax by district officer (revenue) [Section 138A] The Commissioner Inland Revenue may forward to the District Officer (Revenue) of the district in which the taxpayer resides or carries on business or in which any property belonging to the taxpayer is situated, a certificate specifying the amount of any tax due from the taxpayer and on receipt of such certificate, the recovery of tax from the taxpayer shall be made as, it were an arrear of land revenue. 408 Conceptual Approach to Taxes

3 4. Bankruptcy [Section 138B] If a taxpayer is declared bankrupt, the tax liability shall pass on to the estate in bankruptcy. If tax liability is incurred by an estate in bankruptcy, the tax shall be deemed to be a current expenditure in the operations of the estate in bankruptcy and shall be paid before the claims preferred by other creditors are settled. 5. Collection of tax in the case of private companies and associations of persons [Section 139] Where any tax payable by a private company in respect of any tax year cannot be recovered from the company, every person who was, at any time in that tax year - a director of the company, other than an employed director, or a shareholder in the company owning not less than 10% of the paid-up capital of the company, Shall be jointly and severally liable for payment of the tax due from the company, Any director who pays tax as above shall be entitled to recover the tax paid from the company or a share of the tax from any other director. Similarly a shareholder who pays tax shall be entitled to recover the tax paid from the company or from any other shareholder that has 10% holding of the paid up of the company in that proportion. Where any tax payable by a member of an AOP in respect of the member's share of the income of the AOP in respect of any tax year cannot be recovered from the member, the AOP shall be liable for the tax due by the member. 6. Recovery of tax from persons holding money on behalf of a taxpayer [Section 140] For the recovery of any tax due by a taxpayer the Commissioner Inland Revenue may by notice in writing require any person owing to or holding money for taxpayer. The amount mentioned in the notice- where the amount of the money is equal to or less than the amount of tax due by the taxpayer, shall not exceed the amount of the money; or in any other case, shall be so much of the money as is sufficient to pay the amount of tax due by the taxpayer. Where a person is liable to make a series of payments to a taxpayer the notice may specify an amount to be paid out of each payment until the amount of tax due by the taxpayer has been paid. The date for payment specified in a notice shall not be a date before the money becomes payable to the taxpayer or held on the taxpayer's behalf. 7. Advance payment of tax [Section 147] Particulars (1) Companies and AOPs (2) 1. Basis Quarterly basis as under: (Turnover for the quarter x Tax assessed for the latest tax year / Turnover for the latest tax year) Less Tax paid in the quarter (other than actual tax on incomes covered at serial no 3 below). Minimum tax where applicable shall also be considered for the purpose of payment of advance tax. Individuals (3) Quarterly basis as under: (Tax assessed for the latest tax year / 4) Less Tax deduction or paid at source in the quarter (other than actual tax on incomes covered at serial no 3 below). Same as in column 2 2. When applicable Without considering the quantum of income. If latest assessed taxable income is equal to or greater than Rs. 500, Incomes not to be considered for advance tax Income covered under final tax regime 4. Last date of payment 25 th September for September quarter 25 th December for December quarter 25 th March for March quarter 15 th June for June quarter 5. Estimation on the basis of current year projections a. Shall estimate the tax payable for the relevant tax year at any time before the second installment is due. In case the tax payable is likely to be more than the amount that the taxpayer is required to pay under sub-section (4), the taxpayer shall furnish to the CIR on or before the due date of the second quarter an Income from salary and income covered under final tax regime 15 th September for September quarter 15 th December for December quarter 15 th March for March quarter 15 th June for June quarter Section is silent on this issue Conceptual Approach to Taxes 409

4 6. Advance tax in the absence of latest assessed income or declared turnover estimate of the amount of tax payable by the taxpayer and thereafter pay 50% of such amount by the due date of the second quarter of the tax year after making adjustment for the amount (if any) already paid in terms of subsection (4). The remaining 50% of the estimate shall be paid after the second quarter in two equal instalments payable by the due date of the third and fourth quarter of the tax year. b. If the said taxpayers of the view that his income for the current tax year would likely to be less than this latest tax year then he may file an estimate of his income to the Commissioner Inland Revenue and shall pay advance tax accordingly. But if advance tax paid according to this estimate is less than 90% of tax liability of the relevant tax year he shall be liable to pay default surcharge. Shall be on the basis of quarterly estimated profit / turnover including the effect of minimum tax. Same as in column 2. Not applicable Advance tax on capital gain from sale of securities [Section 147(5B)] Adjustable advance tax on capital gain from sale of securities shall be chargeable as under, namely:- S. No. Period Rate of Advance Tax (1) (2) (3) 1. Where holding period of a security is less than six months 2. Where holding period of a security is more than six months but less than twelve moths 2% of the capital gains derived during the quarter 1.5% of the capital gains derived during the quarter Provided that such advance tax shall be payable to the Commissioner Inland Revenue within a period of twenty one days after the close of each quarter. Credit / refund shall be allowed of advance tax paid under section 147 of the Ordinance. 8. Deduction or collection of tax at source (Section 148, 148A and 158): Originally tax at source means the collection or deduction of tax at source from where an income is being generated and it is considered as an advance payment of tax on behalf of the taxpayer. Later on withholding tax were categorized into two segments (i) (ii) Treating the tax collected as advance tax and Considering it as full and final discharge of tax liability of the taxpayer in respect of the source against which the deduction has been made. Any notification issued under the said sub section and for the time being in force shall continue to remain in force unless rescinded by the Board through notification in the official gazette. Tax on local purchase of cooking oil or vegetable ghee [Section 148A] The manufacturers of cooking oil or vegetable ghee, or both, shall be chargeable to tax at the rate of 2% on purchase of locally produced edible oil. The tax payable as above shall be final tax in respect of income accruing from locally produced edible oil. 9. Time of deduction of tax (Section 158) A person required to deduct tax from an amount paid by the person shall deduct tax - in the case of deduction of tax on profit on debt, at the time the amount is paid or credited to the account of recipient, whichever is earlier; in other cases, at the time the amount is actually paid; and Amount actually paid shall have the meaning as may be prescribed. 410 Conceptual Approach to Taxes

5 10. Exemption or lower rate certificate (Section 159): If the income of a person is: Exempt from tax; Chargeable to tax at lower rate, or is subject to 100% tax credit u/s 100C. Then Commissioner Inland Revenue shall issue him an exemption or lower rate certificate upon application made by him in writing. A person who is required to deduct tax at source shall deduct tax according to the exemption or lower rate certificate but if certificate is not presented to him then he shall deduct full amount of tax. Exemption or lower rate certificate u/s 159 [Rule 40] An application for a certificate u/s 159(1) read with clause (V) of paragraph 1 of Notification No. SRO 947(1)/2008, dated , shall be in the form specified in Part VII of the First Schedule to the Income Tax Rules, A system based exemption certificate issued by the Commissioner Inland Revenue for goods specified in the aforesaid notification shall be in the form specified in Part VIII of the First Schedule to Income Tax Rules, Rules for Rates of Tax deduction (Section 159): Any notification issued under the said sub sections and for the time being in force shall continue to remain in force unless rescinded by the Board through notification in the official gazette. 12. Payment of tax collected or deducted (Section 160): Any tax that has been collected or deducted shall be paid to the Commissioner Inland Revenue by the person making the collection or deduction within the time and in the manner as may be prescribed. Payment of tax collected or deducted [Rule 43] As required u/s 160 and under the Sixth Schedule to the Ordinance, the tax collected or deducted under various sections of the Ordinance or Sixth Schedule to the Ordinance shall be paid to the Commissioner Inland Revenue by way of credit to the Federal Government,- where the tax has been collected or deducted by the Federal Government or a Provincial Government on the day the tax was collected or deducted; or where the tax has been collected or deducted by a person other than the Federal Government or a Provincial Government, by remittance to the Government Treasury or deposit in an authorized branch of the State Bank of Pakistan or the National Bank of Pakistan, 7 days from the end of each week ending on every Sunday. 13. Failure to pay tax collected or deducted (Section 161): Where a person fails to collect tax or deduct tax from a payment or having collected tax fails to pay the tax to the Commissioner Inland Revenue as required, the person shall be personally liable to pay the amount of tax to the Commissioner Inland Revenue who may pass an order to recover the same. No recovery shall be made unless the person has been provided with an opportunity of being heard. Where at the time of recovery of tax the tax that was to be deducted or collected has been paid by that person, no recovery shall be made from the person who had failed to collect or deduct the tax but the said person shall be liable to pay default 12% p. a. from the date he failed to collect or deduct the tax to the date the tax was paid. A person personally liable for an amount of tax as a result of failing to collect or deduct the tax shall be entitled to recover the tax from the person from whom the tax should have been collected or deducted. 14. Default Surcharge (Section 205) Where a person fails to pay any tax (excluding advance tax u/s 147), any penalty or any tax due from persons holding money on behalf of a taxpayer or a liquidator, any tax u/s 160 on or before the due date, the said person shall be liable to pay default 18% from the date the aforesaid amounts are due and ending on the date on which it was paid. Where a person fails to pay advance tax u/s 147, on or before the due date, the said person shall be liable to pay default 18% from the date the amount was due and ending on the date on which it was paid. Where a person fails to pay advance tax u/s 147(4A) and (6) or the tax so paid is less than 90% of the tax chargeable for the relevant tax year, the said person shall be liable to pay default 18% from the first day of April in that year to the date on which assessment is made or the thirtieth June of the financial year next following, whichever is earlier. Conceptual Approach to Taxes 411

6 Provided that if the person opts to pay the tax due on the basis of an order under section 129 on or before the due date given in the notice u/s 137(2) issued in consequence of the said order, and does not file an appeal u/s 131, he shall not be liable to pay default surcharge for the period beginning from the due date of payment in consequence of an order appealed against to the date of payment in consequence of notice u/s 137(2). Provided that if the person opts to pay the tax due on the basis of an order u/s 129 on or before the due date given in the notice under section 137(2) issued in consequence of the said order and does not file an appeal u/s 131, he shall not be liable to pay default surcharge for the period beginning from the date of order u/s 161 to the date of payment. 15. Recovery of tax from the person from whom the tax was not collected or deducted (Section 162): Where a person fails to collect or deduct tax from a payment, the Commissioner Inland Revenue may pass an order to that effect and recover the amount not collected or deducted from the person from whom the tax should have been collected or to whom the payment was made. Such recovery of tax does not absolve the person who failed to deduct tax from any other legal action in relation to the failure, or from a charge of default surcharge or the disallowance of a deduction for the expense to which the failure relates. 16. Recovery of advance payment or deduction of tax at source (Section 163) The provision of this Ordinance shall apply to any amount required to be paid to the Commissioner Inland Revenue as advance tax or tax deducted at source as if it were tax due under an assessment order. 17. Certificate of collection or deduction of tax (Section 164) Every person collecting tax or deducting tax from a payment shall furnish to the person from whom the tax has been collected or deducted, copies of the challan of payment or any other equivalent document a certificate setting out the amount of tax collected or deducted. A person required to furnish a return of taxable income for a tax year shall attach to the return copies of the challan of payment on the basis of which a certificate is provided to the person in respect of tax collected or deducted in that year. Certificate of collection or deduction of tax [Rule 42] As required u/s 164(1), any person responsible for collecting tax under various sections of the Ordinance (except in the case of salary) or deducting tax under the 6th Schedule to the Ordinance, shall issue a certificate to the person from whom tax has been collected or deducted, in the form as set out in Part VII of the Second Schedule to Income Tax Rules, 2002, within 15 days after the end of the financial year or discontinuation of business etc.- Where the person from whom tax has been collected or deducted requests for the issuance of the certificate before the end of the financial year, the certificate shall be issued for the period in that year within 7 days of such request. If certificate issued has been lost, stolen or destroyed the recipient of the certificate may request, in writing, to the issuer of the certificate to issue a clearly marked serially numbered certificate as duplicate. 18. Statement of tax deduction (Section 165) Every person collecting or deducting tax from a payment furnish to the Commissioner Inland Revenue statement even where no withholding tax is collected or deducted during the period.in the prescribed form setting out- The name, CNIC and NTN and address of each person from whom tax has been collected or deducted in each month; the total amount of payments made to a person from which tax has been deducted or collected in each month; and such other particulars as may be prescribed: Every prescribed person collecting tax or deducting tax from payment shall furnish or e-file statements by the 20th day of the month following the month to which the withholding tax pertains. Explanation:- For the removal of doubt, it is clarified that this sub-section overrides all conflicting provisions contained in the Protection of Economic Reforms Act, 1992, the Banking Companies Ordinance, 1962, the Foreign Exchange Regulation Act, 1947 and regulations made under the State Bank of Pakistan Act, 1956, if any, on the subject, in so far as divulgence of information u/s 165 A person may apply in writing, to the Commissioner Inland Revenue for an extension of time to furnish the statement after the due date and the Commissioner Inland Revenue if satisfied that a reasonable cause exists for non-furnishing of the statement by the due date may, by an order in writing, grant the applicant an extension of time to furnish the statement. Every person deducting tax from payment against salary shall furnish to the Commissioner Inland Revenue an annual statement in the prescribed form. 412 Conceptual Approach to Taxes

7 Annual statement of tax collected or deducted [Rule 44] An annual statement required to be furnished u/s 165(1) for a financial year shall be in the form as set out in Part VIII and Part IX of the Second Schedule to the Income Tax Rules, A person responsible for collecting or deducting tax under various sections of this Ordinance shall furnish a monthly statement within 20 days of the end of each month as set out in Part X of the Second Schedule to the Income Tax Rules, The above statements shall be accompanied by the evidence of deposit of tax collected or deducted to the credit of the Federal Government. Wherever required by the Commissioner Inland Revenue, a person shall furnish a reconciliation of the amounts mentioned in annual and monthly statements with the amounts mentioned in the return of income and allied documents submitted from time to time. 19. Furnishing of information by banks (Section 165A) (1) Notwithstanding anything contained in any law for the time being in force including but not limited to the Banking Companies Ordinance, 1962, the Protection of Economic Reforms Act, 1992, the Foreign Exchange Regulation Act, 1947 and the regulations made under the State Bank of Pakistan Act,1956 if any, on the subject, every banking company shall make arrangements to provide to the Board in the prescribed form and manner,- (e) Online access to its central database containing details of its account holders and all transactions made in their accounts; a list containing particulars of deposits aggregating rupees one million or more made during the preceding calendar month; a list of payments made by any person against bills raised in respect of a credit card issued to that person, aggregating to rupees one hundred thousand or more during the preceding calendar month; a consolidated list of loans written off exceeding rupees one million during a calendar year; and a copy of each Currency Transactions Report and Suspicious Transactions Report generated and submitted by it to the Financial Monitoring Unit under the Anti-Money Laundering Act, (2) Each banking company shall also make arrangements to nominate a senior officer at the head office to coordinate with the Board for provision of any information and documents in addition to those listed in sub-section (1), as may be required by the Board. (3) The banking companies and their officers shall not be liable to any civil, criminal or disciplinary proceedings against them for furnishing information required under this Ordinance. (4) Subject to section 216, all information received under this section shall be used only for tax purposes and kept confidential. Banking Companies Reporting Requirements [Rule 39A to 39F] For the purposes of section 165A of the Ordinance the above rules contain reporting requirements for banking companies. Definitions [U/R 39B] (1) In this Chapter, unless there is anything repugnant in the subject or context,- (e) (f) Account Holders Deposits statement means Account Holders Deposits Statement as specified in Form A, Banking Company Officer means a senior officer stationed at the head office and nominated by a banking company to coordinate with the Board for provision of any information and documents required by the Board; Credit Card Payments Statement means Credit Card Payments Statement as specified in Form B; Currency Transactions Report means currency transactions report generated and submitted by a banking company to the Financial Monitoring Unit under the Anti-Money Laundering Act, 2010; information includes Account Holders Deposits Statement, Credit Card Payment Statement, Written Off Loans Statement, currency transactions report, suspicious transactions report, details of any information or data of account holders through online access to central database of the banking company or any other information as required by the Board from the banking company; reporting banking company means a banking company required under section 165A of the Ordinance to provide to the Board all the information and documents electronically or otherwise, mentioned in the said section ; Conceptual Approach to Taxes 413

8 (g) (h) Suspicious Transactions Report means suspicious transaction report generated and submitted by a banking company to the Financial Monitoring Unit under the Anti-Money Laundering Act, 2010 (VII of 2010); and Written off Loans Statement means Written off Loans Statement as specified in Form C; Furnishing of information [U/R 39C] (1) The information, required to be furnished under section 165A if the Ordinance (other than information required under clause of sub-section (1) of section 165A) shall be provided, by the reporting banking company, in the manner as specified in Account Holders Deposits Statement, Credit Card Payments and suspicious transactions report. (2) The information and online access required to be provided under clause of sub-section (1) of section 165A, shall be provided, by the reporting banking company, through online access to its central database containing details of its account holders and all transactions made in their accounts. (3) The information other than information provided I sub-rule (1) and (2), shall be provided by the reporting banking company as specified in a notice issued in terms of section 165A(2) of the Ordinance,. Authorized Persons [U/R 39D] (1) Banking company officer, shall be nominated by the reporting banking company not later than thirty days of coming into force of rules contained in this chapter. (2) Where a banking company officer is not nominated within the time allowed as specified in sub-rule (1), the President or any Principal Officer of the reporting banking company, stationed at the head officer, shall be treated as banking company officer. (3) The information required to be reported to the Board shall be provided by the banking company officer to the Chairman, Federal Board of Revenue or any officer authorized by the Chairman in this behalf. Provided that the officer authorized by the Chairman shall not be below the rank of Member of the Board. Time of furnishing information [U/R 39E] (1) Every banking company officer, shall furnish to the Board a monthly Account Holders Deposits Statement and Credit Card Payments Statement as specified in Form A and Form B respectively, for immediately preceding calendar month within seven days of the end of the preceding calendar month. (2) Every banking company officer shall furnish to the Board an annual Written off Loans Statements as specified in Form C for immediately preceding calendar year within three months of the end of the preceding calendar year. (3) Every banking company officer, shall furnish to the Board a copy of each currency transactions report and suspicious transactions report generated by it at the time it is submitted to the Financial Monitoring Unit under the Anti-Money Laundering Act, (4) Every banking company officer, shall furnish to the Board any information and documents in addition to those mentioned in sub-rules (1) or (3),within the time allowed by the Board. Exclusions [U/R 39F] (1) The information may not be provided by the banking company officer in respect of a person who holds National Tax Number and has also filed return of income for the immediately preceding tax year. (2) They information regarding the person mentioned in sub-rule (1) may be provided to the reporting banking company by the Board, on 10 th of every month. 20. Priority of tax collected or deducted [Section 166] Tax collected by a person or deducted from a payment shall be- held by the person in trust for the Federal Government; and not subject to attachment in respect of any debt or liability of the person. In the event of the liquidation or bankruptcy of a person who has collected or deducted tax from a payment the same shall not form part of the estate of the person in liquidation or bankruptcy and the Commissioner Inland Revenue shall have a first claim for that amount before any distribution of property is made. Every amount that a person is required to deduct from a payment shall be - a first charge on the payment; and deducted prior to any other amount that the person may be required to deduct from the payment by virtue of an order of any Court or under any other law. 414 Conceptual Approach to Taxes

9 21. Indemnity [Section 167] A person who has deducted tax from a payment and remitted the deducted amount to the Commissioner Inland Revenue shall be treated as having paid the deducted amount to the recipient of the payment for the purposes of any claim by the recipient for payment of the deducted tax. 22. Credit for tax collected or deducted [Section 168] Where an amount of tax has been collected from a person or deducted from a payment made to a person, the person shall be allowed a tax credit for that tax in computing the tax due by the person on the taxable income of the person for the tax year in which the tax was collected or deducted. No tax credit shall be allowed for any tax collected or deducted that is a final tax regime and a tax credit or part of a tax credit allowed for a tax year that is not able to be credited for the year shall be refunded to the taxpayer. No amount shall be deducted on account of service charges from the tax withheld or collected by any person, however where the same are deducted the said person will be liable to pay the said amount to the Federal Government and all the tax recovery provisions shall apply on the same. 23. Power to enter and search premises [Section 175] (1) In order to enforce any provision of this Ordinance, the Commissioner or any officer authorised in writing by the Commissioner for the purposes of this section (e) shall, at all times and without prior notice, have full and free access to any premises, place, accounts, documents or computer; may stamp, or make an extract or copy of any accounts, documents or computer-stored information to which access is obtained under clause ; may impound any accounts or documents and retain them for so long as may be necessary for examination or for the purposes of prosecution; may, where a hard copy or computer disk of information stored on a computer is not made available, impound and retain the computer for as long as is necessary to copy the information required; and may make an inventory of any articles found in any premises or place to which access is obtained under clause. (2) The Commissioner may authorize any valuer or expert to enter any premises and perform any task assigned to him. (3) The occupier of any premises or place to which access is sought above shall provide all reasonable facilities and assistance for the effective exercise of the right of access. (4) Any accounts, documents or computer impounded and retained as above shall be signed for by the Commissioner or an authorised officer. (5) A person whose accounts, documents or computer have been impounded and retained as above may examine them and make extracts or copies from them during regular office hours under such supervision as the Commissioner may determine. (6) Where any accounts, documents or computer impounded and retained as above are lost or destroyed while in the possession of the Commissioner, the Commissioner shall make reasonable compensation to the owner of the accounts, documents or computer for the loss or destruction. (7) This section shall have effect notwithstanding any rule of law relating to privilege or the public interest in relation to access to premises or places, or the production of accounts, documents or computer-stored information. (8) In this section, occupier in relation to any premises or place, means the owner, manager or any other responsible person on the premises or place. 24. Notice to obtain information or evidence [Section 176] (1) The Commissioner may, by notice in writing, require any person, whether or not liable for tax under this Ordinance to furnish to the CIR or an authorized officer, any information relevant to any tax leviable under this Ordinance or to fulfill any obligation under any agreement with foreign government or governments or tax jurisdiction, as specified in the notice;; or to attend at the time and place designated in the notice for the purpose of being examined on oath by the Commissioner or an authorised officer concerning the tax affairs of that person or any other person and, for that purpose, the Commissioner or authorised officer may require the person examined to produce any accounts, documents, or computer-stored information in the control of the person ; or Conceptual Approach to Taxes 415

10 the firm of chartered accountants, as appointed by the Board or the Commissioner, to conduct audit u/s 177, for any tax year, may with the prior approval of the Commissioner concerned, enter the business premises of a taxpayer, to obtain any information, require production of any record, on which the required information is stored and examine it within such premises; and such firm may if specifically delegated by the Commissioner, also exercise the powers as provided in sub-section (4). (1A) A special audit panel appointed under sub-section (11) of section 177, for any tax year, may, with the prior approval of the CIR concerned, enter the business premises of a taxpayer, to obtain any information, require production of any record, on which the required information is stored and examine it within such premises and such panel may if specifically delegated by the CIR, also exercise the powers as provided in sub-section (4). (2) The Commissioner may impound any accounts or documents produced as above and retain them for so long as may be necessary for examination or for the purposes of prosecution. (3) The person from whom information is required, may at his option, furnish the same electronically in any computer readable media.] Where a hard copy or computer disk of information stored on a computer is not made available as required above, the Commissioner may require production of the computer on which the information is stored, and impound and retain the computer for as long as is necessary to copy the information required. (4) For the purposes of this section, the Commissioner shall have the same powers as are vested in a Court, in respect of the following matters, namely: enforcing the attendance of any person and examining the person on oath or affirmation; compelling the production of any accounts, records, computer-stored information, or computer; receiving evidence on affidavit; or issuing commissions for the examination of witnesses. (5) This section shall have effect notwithstanding any law or rules relating to privilege or the public interest in relation to the production of accounts, documents, or computer-stored information or the giving of information. 25. Receipts for amounts paid [Section 220] The Commissioner Inland Revenue shall give a receipt for any tax or other amount paid or recovered under this Ordinance. 26. Liquidators [Section 141] Every person who is a liquidator of a company, a receiver appointed by a Court or appointed out of Court, a trustee for a bankrupt; or a mortgagee in possession, shall, within 14 days of being appointed or taking possession of an asset in Pakistan, whichever occurs first, give written notice thereof to the Commissioner Inland Revenue. The Commissioner Inland Revenue shall, within 3 months of being notified, notify the liquidator in writing of the amount which appears to the Commissioner Inland Revenue to be sufficient to provide for any tax which is or will become payable by the person whose assets are in the possession of the liquidator. A liquidator shall not without leave of the Commissioner Inland Revenue, part with any asset held as liquidator until the liquidator has been notified as above. A liquidator - shall set aside, out of the proceeds of sale of any asset by the liquidator, the amount notified by the Commissioner Inland Revenue, or such lesser amount as is subsequently agreed to by the Commissioner Inland Revenue; shall be liable to the extent of the amount set aside for the tax of the person who owned the asset; and may pay any debt that has priority over the tax as stated. A liquidator shall be personally liable to the extent of any amount required to be set aside for the tax as above to the extent that, the liquidator fails to comply with the said requirements. 27. Recovery of tax due by non-resident member of an AOP [Section 142] The tax due by a non-resident member of an AOP in respect of the member's share of the profits of the association shall be assessable and recovered out of the assets of the association or from the resident member personally. A person making a payment shall be treated as acting under the authority of the non-resident member and shall be indemnified in respect of such payments even there is anything in contrary in any written law, contract or agreement. The provisions of this Ordinance shall apply to any amount due under this section as if it were tax due under an assessment order. 416 Conceptual Approach to Taxes

11 28. Recovery of tax from persons assessed in Azad Jammu and Kashmir [Section 146] Where any person assessed to tax for any tax year under the law relating to income tax in the Azad Jammu and Kashmir has failed to pay the tax and the income tax authorities of the Azad Jammu and Kashmir cannot recover the tax because - the person's residence is in Pakistan; or the person has no movable or immovable property in the Azad Jammu and Kashmir, the Deputy Commissioner Inland Revenue in the Azad Jammu and Kashmir may forward a certificate of recovery to the Commissioner Inland Revenue and, on receipt of such certificate, the Commissioner Inland Revenue shall recover the tax. A certificate of recovery under as above shall be in the prescribed form specifying - the place of residence of the person in Pakistan; the description and location of movable or immovable property of the person in Pakistan; and the amount of tax payable by the person. 29. Initiation, validity, etc., of recovery proceedings [Section 146A] Any proceedings for the recovery of tax may be initiated at any time. The Commissioner Inland Revenue may, at any time, amend the certificate issued, or recall such certificate and issue fresh certificate, as he thinks fit. It shall not be open to a taxpayer to question before the District Officer (Revenue) the validity or correctness of any certificate issued or any such certificate as amended or any fresh certificate. The several modes of recovery shall be deemed to be neither mutually exclusive nor affect in any way any other law for the time being in force relating to the recovery of debts due to the Government and the Commissioner Inland Revenue may have recourse to any such mode of recovery notwithstanding that the tax due is being recovered from a taxpayer by any other mode. 30. Tax arrears settlement incentives scheme [Section 146B] The Board may make scheme in respect of recovery of tax arrears or withholding taxes and waiver of default surcharge or penalty levied thereon. The Board may make rules u/s 237 for implementation of such scheme. 31. Refunds [Section 170 and Rule 71] A taxpayer who has paid tax in excess of the amount which the taxpayer is liable to pay under ITO, 2001 may apply to the Commissioner Inland Revenue for a refund of the excess. Where any advance or loan u/s 2(19) is repaid by a taxpayer, he shall be entitled to a refund of the tax, if any, paid by him as a result of such advance or loan having been treated as dividend as stated above. An application for a refund as above shall be - made in the prescribed form; verified in the prescribed manner; and made within two years of the later of - (i) (ii) the date on which the Commissioner Inland Revenue has issued the assessment order to the taxpayer for the tax year to which the refund application relates; or the date on which the tax was paid Where the Commissioner Inland Revenue is satisfied that tax has been overpaid, the Commissioner Inland Revenue shall- apply the excess in reduction of any other tax due from the taxpayer under this Ordinance; apply the balance of the excess, if any, in reduction of any outstanding liability of the taxpayer to pay other taxes; and refund the remainder, if any, to the taxpayer. The Commissioner Inland Revenue shall, within 60 days of receipt of a refund application as stated above serve on the person applying for the refund an order in writing of the decision after providing the taxpayer an opportunity of being heard. A person aggrieved by- an order passed as above; or the failure of the Commissioner Inland Revenue to pass an order within the time specified as above, may prefer an appeal. Conceptual Approach to Taxes 417

12 Refund Application [Rule 71] An verified application u/s 170 for a refund of tax shall be in the Performa specified in the Income Tax Rules, 2002 and shall be accompanied by such documents, statements and certificates as specified in the form, in the Ordinance and Income Tax Rules, Additional payment for delayed refunds [Section 171] Where a refund due to a taxpayer is not paid within 3 months of the date on which it becomes due, the Commissioner Inland Revenue shall pay to the taxpayer a further amount by way of Kibor plus 0.5% per annum of the amount of the refund computed for the period commencing at the end of the 3 months period and ending of the date on which it was paid. Provided that where there is reason to believe that a person has claimed the refund which is not admissible to him, the provision regarding the payment of such additional amount shall not apply till the investigation of the claim is completed and the claim is either accepted or rejected. A refund shall be treated as having become due- in case of a refund required to be made in consequence of an order on an appeal to the Commissioner Inland Revenue (Appeals), an appeal to the Appellate Tribunal Inland Revenue, a reference to the High Court or an appeal to the Supreme Court, on the date of receipt of such order by the Commissioner Inland Revenue; or in case of refund required to be made as consequence of revision order u/s 122A, on the date order is made by the Commissioner Inland Revenue ; or in any other case, on the date the refund order is made. Explanation:- For the removal of doubts, it is clarified where a refund order is made on an application under subsection (1) of section 170, for the purpose of compensation, the refund becomes due from the date refund order is made and not from the date the assessment of income treated to have been made by the Commissioner under section Reduction in default surcharge, consequential to reduction in tax or penalty [Section 205A] Where, in consequence of any order made under this Ordinance, the amount of tax or penalty in respect of which default surcharge chargeable is reduced, the default surcharge, if any, levied under the aforesaid section shall be reduced accordingly. REGISTRATION OF INCOME TAX PRACTITIONERS 33. Application of Chapter XIV [Rule 84] This chapter applies for the purposes of section 223, which provides for the registration and regulation of income tax practitioners. 34. Application for registration as an income tax practitioner [Rule 85] (1) A person satisfying the requirements in rule 86 and desiring to be registered as an income tax practitioner shall make an application to the Director-General, Regional Tax Office in the form specified in Part X of the First Schedule to these rules. (2) Every application under this rule shall be accompanied by - a Treasury receipt for five hundred rupees required to be deposited as a non-refundable application fee in any Government Treasury; and such documents, statements and certificates as specified in the form. 35. Prescribed qualification for registration as an income tax practitioner [Rule 86] (1) For the purposes of the definition of "income tax practitioner" in section 223(11), a person applying for registration as an income tax practitioner shall:- possess one of the following qualifications, namely:- (i) (ii) a degree in Law at least in the second division, a degree in Commerce (with Income Tax Law and Accounting or Higher Auditing as subjects or parts of subjects, whether compulsory or optional) or a degree in Business Administration or Business Management (with Accounting and Income Tax law as subject or parts of subjects, whether compulsory or optional) conferred by a prescribed institution; or a pass in a prescribed accounting examination. have worked for a continuous period of one year as an apprentice under the supervision of a chartered accountant, cost and management accountant, legal practitioners entitled to practice in a civil court in Pakistan or a registered income tax practitioner and having been registered as a chartered accountant, cost and management accountant, legal practitioner and income tax practitioner for a period of not less than 10 years. 418 Conceptual Approach to Taxes

13 (2) For the purposes of sub-clause (i) of clause of sub-rule (1), a degree conferred by a prescribed institution that is a foreign university or institution shall only qualify if the degree is equivalent to a degree conferred by a Pakistani university and is recognized as such by a Pakistani university. (3) In this rule, (e) "Institute of Chartered Accountants of Pakistan" means the Institute of Chartered Accountants of Pakistan constituted under the Chartered Accountants Ordinance, 1961; "foreign institution" means any institution in a foreign country authorized to grant a degree under the laws of the country; "foreign university" means any university in a foreign country incorporated by law, or accredited or affiliated by any association of universities or college in the country or by any authority formed for that purpose under the laws of that country; "prescribed accounting examination" means any of the following examinations, namely:- (i) (ii) (iii) (iv) (v) an examination equivalent to the intermediate examination conducted by the Institute of Chartered Accountants of P an examination equivalent to the intermediate examination conducted by any foreign institute of chartered accountants and recognised by the Institute of Chartered Accountants of Pakistan as equivalent to its intermediate certificate; an examination equivalent to the final examination conducted by the Association of Chartered Certified Accountants, United Kingdom; or Part-III of examination for Cost and Management Accountants conducted by the Institute of Cost and Management Accountants under the Cost and Management Accountants Act, 1966;and Certified public accountants of USA. "prescribed institution" means a university incorporated by any law in force in Pakistan or Azad Kashmir, a foreign university or a foreign institution. 36. Registration of income tax practitioners [Rule 87] On receipt of an application under rule 85, the Director General, Regional Tax Office may make such further enquiries and call for such further information or evidence as may be considered necessary. If the Director General, Regional Tax Office is satisfied that an applicant qualifies to be registered as an income tax practitioner, the Director General, Regional Tax Office shall cause the applicant's name to be entered in a register to be maintained for the purpose in the office. The name of a person entered on the register of income tax practitioners shall be notified to the Commissioner and the Appellate Tribunal. The Director General, Regional Tax Office shall notify the applicant, in writing, of the decision on the application. Where the Director General, Regional Tax Office decides to refuse an application for registration, the notice referred above shall include a statement of reasons for the refusal. 37. Duration of registration [Rule 88] Registration of a person as an Income Tax Practitioner shall remain in force until any of the following occurs, namely;- the person surrenders the registration by notice in writing to the Director General, Regional Tax Office. the person dies; or the person's registration is terminated by the Director General, Regional Tax Office. 38. Cancellation of registration [Rule 89] (1) Any person (including an income tax authority) who considers that an income tax practitioner is guilty of misconduct in a professional capacity may file a complaint in writing with the Director General, Regional Tax Office. (2) A complaint filed under sub-rule (1) shall be accompanied by affidavits and other documents as necessary to sustain the complaint. (3) On receipt of a complaint in writing under sub-rule (1), the Director General, Regional Tax Office shall fix a date. hour and place which shall be no later than 21 days from the receipt of the complaint for enquiry into the complaint. (4) Within 7 days of receipt of the complaint, the Director General, Regional Tax Office shall serve a notice of the complaint on the Income Tax Practitioner to whom the complaint relates and such notice shall - Conceptual Approach to Taxes 419