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The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 121A
If
the tax is paid as per the declaration of income of the assessee based
on the assessment made under Section 74 of the Income Tax Ordinance
1984 and no appeal is preferred against the order of assessment of the
DCT passed under the provision of section 83(2) of the Income Tax
Ordinance 1984 the Review petition is very much maintainable under
Section 121A of the Income Tax Ordinance 1984 if it is accompanied by a
fee of two hundred taka and a declaration as to non-submission of any
appeal ...........(9)
The finding of the review authority with regard to the rejection of the Review shall be erroneous while the pre-conditions, as laid down in the aforementioned provision of section 121A of the Income Tax Ordinance 1984 are categorically complied by the assessee-writ petitioner...........(16)
Bangladesh Bridge Authority (Ex-Jamuna Multipurpose Bridge Authority), Setu Bhaban, Air Port Road, Banani, Dhaka-1212 Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 35
When the assessee keeps the account under the provision of section 75(2) (d) (iii) of the Income Tax Ordinance and submits the same with the return complying the provision of section 35(3) of the Ordinance, he is entitled to the provision of section 35(1) of the Ordinance in order to have the book version of the account accepted by the DCT concerned.................... (36)
When
the DCT concerned discards the books of account, he has to raise
dissatisfaction as to the method of accounting, regularly employed by
the assesee and to pin point the defect in the item of expenditure,
prior to discard the book version of the accounts, submitted by the
Assessee.......... (37)
In
the computation of income profit and gains of company the DCT is
entitled to reject the books of accounts if he is of the opinion that no
method of accounting has been regularly employed by the assessee or if
the method employed is such that the income of the assessee cannot be
properly deduced therefrom or that a company has not complied with the
requirement of sub-section (3) of section 35 of the
Ordinance. ......................(38)
Section 83
After submission of a return or revised return by the assesee, if the Deputy Commissioner of Taxes is not satisfied with the return, he shall serve a notice under sub-section (1), requiring the assessee to appear either in person of through a representative or produce the evidence that the return is correct and complete. After hearing the person or his representative and/or considering the evidence produced pursuant to the notice, he may under sub-section (2) require further evidence on specified points before he could complete the assessment. That could only be done by asking again in writing the assesee to produce evidence upon such points as he should specify, the Deputy Commissioner of Taxes appears to be acquainted with.................(39)
Latifur Rahman, Son of late Khan Bahadur Muzibur Rahman, 52, Motijheel Commercial Area Police Station Motijheel, Dhaka Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Sections 2(36) and 120
Under section 120
read with section 2(36) of the Income tax Ordinance, Inspecting Joint
Commissioner of Taxes, Inspecting Additional Commissioner of Taxes or
any person appointed to hold current charge of the Inspecting Joint
Commissioner of Taxes may call for and examine the record of Deputy
Commissioner of Taxes and pass any order revising the order passed by
the Deputy Commissioner of Taxes in so far as it is prejudicial to the
interest of the revenue.......... (20)
Section 2(26) (e)
If a private company, having accumulated profit, makes any payment by way of advance or loan to a share-holder, it is to be treated as dividend........... (23)
FAS Finance & Investment Ltd., Subastu Imam Square, 4th floor, 65 Gulshan Avenue, Gulshan, Dhaka Vs. The Commissioner of Taxes, Large Tax Payers Unit (LTU) Dhaka, 2nd 12th storied Building, Segunbagicha, Dhaka, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No.XXXVI of 1984)
Sections 6(1) (c) and 82BB
The
provision of section 82BB is a special provision in the Income Tax
Ordinance 1984, and a return filed under section 82BB(1) of the Income
Tax Ordinance 1984, titled Universal Self Assessment Return, if
compliant of the preconditions as set out in the subsections, is treated
as making the assessment for the relevant year final, as an when the
DCT concern issued the receipt of receiving the return, upon complying
the provision of the said section 82BB of the Income Tax Ordinance
1984….A return filed under the provision of section 82BB(1) of the
Income Tax Ordinance 1984 can be reopened by any other manner other than
the provision of section 82BB(3) of the Income Tax Ordinance
1984........(22 & 23)
The
provision of section 82BB(3) of the Income Tax Ordinance 1984 is a
special provision and this has authorized the Deputy Commissioner of
Taxes to comply the order of the National Board of Revenue in order to
hold an audit and thereupon proceed if so required to make the
assessment afresh under section 83 or section 84 of the Income Tax
Ordinance 1984 as the case may be and this provision has categorically
conferred power upon the Deputy Commissioner of Taxes making him a
‘Person designata’, who is an authority who is particularly and
exclusively empowered or authorized to exercise particular power.
Ordinance 1984 is concerned…… The authority of a ‘Person designata’
cannot be delegated to any other person unless specifically and
particularly authorized by the provision of law. Nowhere within the
statute of the Income Tax Ordinance 1984, the authority of the Deputy
Commissioner of Taxes, to be exercised under the provision of section
82BB(3) of the Income Tax Ordinance 1984, has been delegated to any
other authority of the Income Tax Ordinance 1984……………………….(24 & 25)
The
aforesaid provision of section 6(1) (c) of the Income Tax Ordinance
1984 has empowered the Deputy Commissioner of Taxes to perform their
functions in respect of such areas, or such persons or classes of
persons, or such cases or classes of cases or such incomes or classes of
incomes, as the Commissioner, to whom they are subordinate, may assign
to them............................(26)
Getco Trading Limited, Represented by its Managing Director Mr. K.M. Khaled Vs. The Commissioner of Taxes, Taxes Zone-14, 2015, 44 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984)
Sections 35(4) and 83(2)
The
provision of section 35(4) of the Income Tax Ordinance 1984
requires the Deputy Commissioner of Taxes to raise dissatisfaction as to
the method of accounting prior to invoke the power available to him
under the provision of section 35(4) of the Income Tax Ordinance, 1984.
In the instant case, the Deputy Commissioner of Taxes did not comply the
provision of section 83(2)
of the Income Tax Ordinance 1984 while writing the assessment order,
although the DCT concern felt inadequacy of evidence as to the genuinity
of the claimed incurred expenditure, which mandates him to serve a
further notice upon the Assessee-applicant, directing him to submit
adequate evidence as to any point which he felt not being proved by
adequate evidence..... The provision of section 83(2) is the protection
to the assessee of Income Tax, since the DCT concern writes the
assessment order in his personal time in the absence of the assessee or
his authorized representative.....(12 and 17)
Islami Bank Bangladesh Limited, Head Office-40, Dilkusha C/A, Dhaka-1000 Vs. The Commissioner of Taxes, Audit Wing, Large Taxpayer’s Unit, Dhaka, 2015, 44 CLC (HCD)
The Constitution of the Peoples Republic of Bangladesh, 1972; Article 2A
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984)
Sections 2(1)(viii) & 44
Any sum paid by the assessee as Zakat to the Zakat Fund established by the Zakat Ordinance, 1982 is only exempted from tax liability and there is no scope to presume that the Zakat paid by the Bank would be tax exempted in view of the provision of article 2A of the Constitution………………… (17)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984)
The Income Tax Rules, 1984; Rule 33(1)
Perquisites includes any sum payable by the employer, whether directly or indirectly, to effect a contract for an annuity for the benefit of, the assessee or his spouse or any of his dependent child as well as any sum paid by an employer in respect of any obligation of an employee. The amount contributed by the assessee in the contributory provident fund of the office employee, thus, falls within the definition of perquisites. Moreover, under the definition of “salary”, salary includes any fees, commission, allowance, perquisite or profit in lieu of, or in addition to, salary or wages and under sub-rule (1) of the rule 33 of the Rules for the purpose of determining the valuation of perquisites, allowances and benefits. “Basic Salary” means the pay and allowances payable monthly or otherwise, but does not include Perquisites, Annuities and Benefits referred to in sub-rule (1) of rule 33 of the Rules. Therefore, ‘perquisites’ is included within the salary, but it is not within the basic salary under rule 33 of the Rules. So, the contributions to contributory provident fund by the employer in the relevant assessment years were within the meaning of perquisites of the employee................(23)
Section 30(d)
The Commissioner of Taxes, Taxes Zone-5, 28/F, Segunbagicha, Dhaka Vs. Ms. Rubana Huq, wife of Mr. Aanisul Huq, 2015, 44 CLC (HCD)
Muslim Law
Gift
An oral gift by the husband to the wife under the provision of Muslim Law can be made and any affirmation by way of affidavit by the donor is also a document to be considered as to the genuinity of the gift. Both the appellate authorities considered the declaration of the husband made in his income tax return as to the gift made to the wife orally, which has been accepted by the wife and declared in her income tax return along with submission of an affidavit declaring the gift sworn in by the husband. This affidavit being the proper and lawful document has to be taken into consideration and no other document is required to prove the said gift......... (12)
Bangladesh Rural Advancement Committee (BRAC) Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
As
in the Income Tax Reference Application No. 279 of 2003 in respect of
the assessment year 1999-2000 and also Income Tax Reference Application
No. 254 of 2004 for the assessment year 2000-2001 which have been
disposed of by a different Bench of the High Court Division wherein the
similar question of law has been formulated as have been formulated in
these instant 12 (twelve) Income Tax Reference Applications and the
aforesaid two Income Tax Reference Applications were allowed by
answering the similar question in negative and in favour of the
assessee-applicant to the extent that the assessee-applicant BRAC is not
exempted from paying the income tax, therefore, any further
deliberation on the similar questions shall be nothing but wastage of
valuable court’s time..............(6)
As the income of the assessee organization is expended directly or indirectly for charitable purposes, including income from its investment, therefore, undoubtedly, the Assessee-applicant has always been and continues to be a wholly charitable institution. All of its income/earnings/income generating activities are considered to be done “for charitable purpose” which in other words can be said to be for the advancement of object of general public utility. Accordingly this court finds merit in the questions as have been formulated by the Assessee-applicant in these twelve instant Income Tax Reference Applications...........(9)
Astech Limited, represented by its Managing Director Mr. Ali Ahmed, 175, Jubilee Road (1st floor), Chittagong, Bangladesh Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984);Section 83(2)
The provision of section 83(2) of the Income Tax Ordinance 1984 since mandates the DCT concern to serve notice directing the assessee-applicant to submit further evidence on any point, considered by the DCT concern, to have not been proved, the opinion as has been expressed by the DCT concern for non-allowance of the expenditure for adequate evidence cannot stands on the facts and circumstances of the case..................(14)
The Income Tax Rules, 1984; Rule 65C
On the basis of the provisions under rule 65C of the Income Tax Rules 1984, the issue of allowing expenditure in respect of free sample distribution being a question of law was required to be considered by the appellate authorities. In the instant case, while the first appellate authority was considering the question as to the entitlement of the Assessee-applicant for distribution of free sample, rejected the order passed by the DCT concern to allow a portion of the same expenditure under the provision of rule 65 of the Income Tax Rules, 1984. Whereas he Assessee-applicant is entitled under the rule 65 to claim the free sample distribution as expenditure upon some slab, but the DCT concern without mentioning the entitlement of the assessee to such slab out rightly disallowed the claim and as such the order passed by the DCT concern was not lawful and correct and as such the Taxes Appellate Tribunal was required to allow the objection as has been raised by the Assessee-applicant as to non-allowance of the expenditure regarding the distribution of free sample....................(15)
International Leasing and Financial Services Limited, represented by its Managing Director, Mr. Mustafizur Rahman of 5 Rajuk Avenue, Dhaka-1000 Vs. The Commissioner of Taxes, Taxes Zone-LTU, Dhaka, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No.XXXVI of 1984)
Section 53F
The deduction of any Advance Income Tax (AIT) under the provision of section 53F of the Income Tax Ordinance 1984 does not relate to the amount which has been made as ‘provision’ for the purpose of such payment to the term depositor. The provision of section 53F of the Income Tax Ordinance 1984 is only applicable whenever the interest is actually paid to the term depositor and at that point of time the leasing company is liable under the provision of section 53F of the Income Tax Ordinance 1984 to deduct the amount of Advance Income Tax (AIT) therefrom. Therefore, this court deciding in favour of the assesse finds that, the finding of the First Appellate Authority, not being supported by law, the same was required to be considered by the Taxes Appellate Tribunal, but the Taxes Appellate Tribunal in a mechanical way simply endorsed the view of the First Appellate Authority, which not being proper adjudication of the issue, cannot be endorsed by this court......... (14 & 15)
One Bank Limited, represented by its Managing Director: Mr. M. Fakhrul Alam, HRC. Bhaban, 46, Kawran Bazar, Dhaka, Bangladesh Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984);Section 2(45)
The Income Tax Rules, 1984; Rules 33 and 33A
Section
2(45) of the Income Tax Ordinance 1984 defines ‘Perquisite’ which means
any payment made to an employee other than, inter alia, a contribution
to a recognized provident fund. But the provision of rule 33(2) (ii) of
the Income Tax Rule 1984 while provides for valuation of perquisite
excluded the same from the definition of basic salary. But that does not
mean that contribution to recognized provident fund has been included
in the definition of perquisite.............. (6)
The payments like house rent allowance covered by the Rule 33A of the Income Tax Rules 1984, conveyance allowance covered by rule 33C of the Income Tax Rules 1984, medical allowance covered by rule 33(1) of the Income Tax Rules 1984 are not to be included in the definition of ‘perquisite’..................(7)
The Commissioner of Taxes, Taxes Zone-1, 2nd 12-Storied Building, Segun Bagicha, Dhaka Vs. Arif Knit Spin, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 37
If
the net result of computation of income under any head is a loss, the
assessee shall be entitled to have that amount of loss set off against
his income, if any, assessable for the assessment year under any other
heads subject to other provisions of this Ordinance, that means, the set
off of losses with income under other heads is clearly subject to the
other provisions of this Ordinance........... (11)
Sections 37 & 46A (6)
The
profits and gains of the undertaking falling under section 46A shall be
computed separately from other incomes, profits and gains of the
assessee, if any, and where the assessee sustains a loss from such
undertaking (tax exempted income during tax-holiday period), it shall be
carried forward to set off profits and gains of the said undertaking
for the following year. So, in case of an industrial undertaking whose
income are tax exempted, the provision of section 46A(6) of the
Ordinance, which is a special provision, shall be applicable and not the
provision of section 37 of the Ordinance.................(12)
The
loss from the industrial undertaking of the assessee which is
admittedly tax exempted for the assessment year under consideration and
within the tax-holiday period cannot be set off with other taxable
income of the assessee. The income of this undertaking is to be computed
separately and the loss is to be carried forward for the following year
and there is no scope to set off the business loss of such undertaking
with its income, if any, from other heads.................. (13)
Youngone (CEPZ) Limited, Plot No.11-16, Sector-2, Export Processing Zone, Chittagong Vs. The Commissioner of Taxes, Taxes Zone-2 CGA Building, Chittagong, 2014, 43 CLC (HCD)
The Commissioner of Taxes, Taxes Zone-1, Segun Bagicha, Dhaka Vs. Azmat Fashions Limited & M/S Ornate Knit Garments Industries Limited, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984)
Sections 30(aa) and 53H
On
combined reading of the sections 30(aa) and 53H it is evident that the
assessee was liable to deduct advance tax from the commission or fees
paid to the Agent of Foreign Buyers. The assessee claimed to have paid
the agent’s commission or fee and therefore, he was liable to deduct
advance tax at source before payment of commission to the Foreign Buying
Agents under section 53E of the Ordinance..............(18)
One Bank Limited, represented by Mr. M. Fakhrul Alam, H.R.C. Bhaban, 46, Karwan Bazar, Dhaka, Bangladesh Vs. The Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 2(45)
Any
payment made to employee under the terms of the employment cannot be
treated as perquisite for the tax liability of the employer although the
employee shall be liable to tax for such payment received with basic
salary....................................(14)
Section 29(xxvii)
A laid out amount for the purpose of gratuity has to be treated as an expenditure under the provision of section 29(xxvii) of the Income Tax Ordinance 1984 as an allowable expenditure, not being in the nature of capital or personal expenditure which had to be laid out wholly and exclusively for the purpose of the business. .......................(24)
Section 16C
The
provision of section 16C only says about the ‘reserve’. It has not
restricted the ‘reserve’ into any further classification, not to speak
of as indicating statutory reserve, general reserve, retained earnings
or other reserve. The golden rule of interpretation of statutory
provision obliges to interpret the word ‘reserve’ without any
classification meaning thereby that it covers all sort of reserve kept
by the Banking Company under the instruction of its controlling
authority i.e. Bangladesh
‘Bank’.......................................................(46)
Section 53M
No
SRO can derogate the provision of any statute. The SRO which has been
relied upon by the learned Deputy Attorney General does not at all
applicable to the transfer of sponsor shares made by the
Assessee-applicant bank and any tax liability upon such income has to be
made in accordance with the provision of section 53M of the Income Tax
Ordinance 1984...................(68)
A.K.M. Fazlul Haque and Others Vs. Privatization Commission and Others, 2014, 43 CLC (HCD)
The promotion of the Officers and Employees—
Privatization Commission (Officers and Employees) Service Regulations, 2002
Competencies for Promotion of Any Officer of the Commission—
Only seniority is not the sole yardstick for promotion of any officer of the Commission to the next higher post. Along with his seniority, merit of the officer shall be taken into consideration for promotion to the next higher post by the Selection Committee/DPC. In case of promotion of a Deputy Director to the post of Director of the Commission, he must have completed a minimum of 5(five) years service and his service record must be satisfactory and free from any blemish or stain. If no Deputy Director having the requisite service length and satisfactory service record is available for promotion, only in that event the post of Director of the Commission may be filled up by deputation……………….(23)
Filling up of the Vacant Posts of Director of the Commission—
The question of filling up of the vacant posts of Director of the Commission by way of deputation will arise only when the petitioners are considered for promotion and the Selection Committee/DPC does not recommend them for promotion for any justifiable cause.
From legal standpoint, the petitioners being Deputy Directors must be considered first for promotion to the vacant posts of Director of the Commission, having regard to their length of service and satisfactory service records and if they are not found to be eligible for promotion for some reason or other to be recorded in black and white, only then those vacant posts can be filled up by deputationists. The question of filling up of the posts by deputationists will not come first as has been the longstanding practice in the Commission………………….(28)
Hossain Ali and Others Vs. Government of Bangladesh and Others, 2015, 44 CLC (HCD)
Shamsun Nahar Begum Shelly Vs. Bangladesh and Others, 2015, 44 CLC (HCD)
Bangladesh Abandoned Property (Control, Management & Disposal) Order (PO 16 of 1972); Article 2 & 7
Abandoned Buildings (Supplementary Provision) Ordinance (LIV of 1985) Sections 2(b), 5(1) (b), 9 & 10
Abandoned Property
The act of abandonment implies two fundamental factors: (i) Desertion of the property; and
(ii) Giving up one's right to the property…………………(14)
The word "abandonment" connotes in this sense the idea of the owner not merely temporarily vacating but deserting the property with the intention of never returning to it. Such absolute desertion must be concomitant with the positive intention to give up the right vested in the property. It follows, therefore, that mere temporary or occasional absence of physical possession shall not of itself suffice to treat the property as abandoned…….. (15)
Service Notice is a Requirement —
Non-service of notice as required by law disentitled the Government-Respondent to claim that the property was legally declared abandoned and enlisted in the "Kha" list of the Abandoned Buildings. It is also noted that there is nothing on record to show that the Petitioner was ever asked to show cause about inclusion of the property or to surrender the same which has definitely denied the right of natural justice to the Petitioner….. (17)
In the instant case, there was nothing on record that could have reasonably led the Court of Settlement to find otherwise. The Court of Settlement without following a judicial approach in determining the question of facts involved in this case unfortunately passed the Judgment without giving a judicial consideration of the whole dispute between the parties and decided the matter erroneously………………….(20)
Torab Ali and Others Vs. Madris Ali Saha and Others, 2015, 44 CLC (HCD)
Setting aside the Ex-Parte Decree under Sub-Rule 7 of Rule 1 of Order XVII—
If any case decreed ex-parte on failure of the parties for non compliance of the procedure of sub-rule 3 or 4 of rule 1 of order XVII only then the question of setting aside the ex-parte decree under sub-rule 7 of rule 1 of order XVII is applicable.
In the instant case it appears that without prevailing the aforesaid procedure the trial court decreed the suit ex-parte.
In such a case no scope to file application under sub-rule 7 of
rule 1 of order XVII and the defendants Tightly filed the application
under rule 13 of order IX of the code of civil procedure, as such the
findings of the courts below is erroneous one.
Torab Ali and Others Vs. Madris Ali Saha and Others, 2015, 44 CLC (HCD)
BRAC Bank Ltd Vs. Multimode Ltd, 2013, 42 CLC (HCD)