The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 52

The Income Tax Rule, 1984;  Rule 16

The provision of section 52 of the Income Tax Ordinance 1984 liable the Gas Company to pay income tax in advance, to be deducted at the payment stage by the deducting authority. In practice the consumer does not pay the gas bill directly to the gas company rather the bill served by the gas company is collected through the banking channel, which has not been denied by the taxes department that the consumer pays the bill to the classified Bank and the Bank in turn pays the billed amount to the gas company. It appears from the highlighted portion that the provision of rule 16 of the Income Tax Rule 1984 designated the ‘person responsible for making any payment to any other person on account of supply of goods’ a “deducting authority” to deduct the AIT. In this sense the taxes department treated the consumer of gas, paying on account of gas bill, to be the deducting authority. But question may arise that since the consumer is not paying direct to the gas company, does the liability of such deduction could be imposed upon it? The answer is an implicated ‘No’......... (18)

The provision of section 52 of the Income Tax Ordinance 1984 did not categorically provides for deduction of advance income tax (AIT) from the Gas Bills by the consumer. The provision of Rule 16 of the Income Tax Ordinance 1984 categorized some authority as “deducting authority” for such collection of advance income tax. The National Board of Revenue in the aforesaid circular Annexure-C(1) has made an extension of the provision of section 52 of the Income Tax Ordinance 1984 in respect of deduction of advance income tax (AIT) by the consumer of the gas from the Gas Bills to be paid to the gas distribution company. The phrase “supply of goods” or “execution of contract or sub-contract” appearing in the provision of section 52 of the Income Tax Ordinance 1984 though can be interpreted as has included the gas bills on the plea that the Titas Gas (T&D) Co. Ltd., is supplying the goods to the consumer or in alternative the consumer is getting ‘gas supply’ upon ‘execution of a contract’ in between the gas company and the consumer, nevertheless the same provision cannot be interpreted as imposed the liability of deduction of advance income tax upon the consumer. The provision of rule 16 did not make the payer of the bill to the gas company as “deducting authority” of such advance income tax. In case of gas bill payment, the consumer deposits the gas bill money to the Bank and the bank in turn pays the amount to the gas company. In this system the ultimate payment to gas company is made by the bank and not the consumer. Therefore for all practical purpose of deducting the advance income tax (AIT) from the gas bill, the responsibility lies on the shoulder of the Bank and not on the shoulder of the consumer. The long standing practice for paying gas bill remain in the system that the gas company supplied the printed bill form to the consumer and the consumer upon getting the gas bill submits the same to the designated bank along with the amount to the bank over the counter and that being the payment to the bank and not direct to the gas company, the later payment made by the Bank to the gas company makes, the bank liable to make deduction of advance income tax from the bill amount and the bank shall deposit the same with  the taxes department and as such the consumer is not liable to deduct any amount as advance income tax (AIT) from the formatted gas bill. The aforesaid circular extended the liability to the shoulder of the consumer which cannot be sustained.......................................(20)

Be that as it may there is another aspect of the issue. In the instant case admittedly the assessee-writ petitioner paid the gas bill for whole assessment years 2004-2005 and 2005-2006 admittedly without such deduction and again made the impugned payment through two challan which definitely appears to be a payment to which the assessee-writ petitioner was not liable to. The payment of income tax for the two assessment years were actually a liability of the Titas Gas (T&D) Co. Ltd. and the assessee-writ petitioner paid the said amount only to avoid the consequence of being penalized for such non deduction as was threatened  by the DCT concern illegally. Therefore, such payment by the assessee-writ petitioner practically became a double payment, in the hands of the taxes department, of the same tax, since the tax department shall get tax from the earlier paid gas bills in due course, the tax department cannot be allowed lawfully to obtain twice on the same liability. This has happened in the instant case.................(21)

This authorization of issuing instruction to the officer of the income tax department in no manner can be extended to issue circular interpreting any of the provision of the Income Tax Ordinance 1984. But in the instant case the National Board of Revenue issued such circular, Annexure-C(1),  and made interpretation of the provision of section 52  of the Income Tax Ordinance 1984 and rule 16 of the Income Tax Rule 1984, which not being supported by sanction of law, cannot be treated as a instrument having source of law. Even the Government in the Ministry of Finance, is not authorized to issue any circular removing any difficulty in interpretation of the provision of section 52 or any other provision of the Income Tax Ordinance 1984 after the date 13.06.1988 by way of any Statutory Regulatory Order (SRO) not to speak of by the National Board of Revenue, not being the government, to issue such a circular making an interpretation of the provision of Income Tax Ordinance 1984....................(25) 

The  Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 17

It has been provided in section 17 of the Income Tax Ordinance 1984 that any deemed income accrues or arises or is deemed to accrue or arise to any tax payer in Bangladesh during a year, shall be included in the total income of the assessee. But whether a deemed income, from a bad debt of a financial institution, could be treated as accrued to it is a question to be decided by this court in this matter. A bad debt becomes irrecoverable, so long it is recovered by way of legal process and therefore a debt when becomes irrecoverable at any point of time, any deemed interest income from that irrecoverable source, meaning non-existent source, cannot be treated as has come within the purview of section 17(1)(a)(ii) of the Ordinance..........(17) 

Evidence Act (1 of 1872); Section 106

Section 106 of the Evidence Act has attribute the liability of proving the facts on the accused when the same is especially within his knowledge. In this case; we have noticed that the condemned-prisoner Golam Rabbani and his wife the deceased Shirina Khatun while living in their residence the wife Shirina Khatun because of the poisonous reaction of insecticide poison in her body resulted her death, so the onus heavily and entirely lies on the husband as the fact is especially within the knowledge of the husband Golam Rabbani. Section 106 of the Evidence Act is very much clear in the said nature of fact………….(37) 

An Ex-Parte Decree— How the Court Passed—

The ex-parte decree passed upon the admitted facts has been absolutely vitiated by perversity. In this case the Adalat exceeded it's jurisdiction and acted in such a manner in deciding the issue that certainly added to have been passed without jurisdiction leading to perversity. It is a case of a kind where the rigidity of the Rule of the Appellate Division and this Division that no writ lies against the judgment and decree of the Artha Rin Adalat shall not apply………………..(6) 

Code of Civil Procedure (v of 1908); Order XXXIX, rules 1 & 2 read with Section 151,

Exclusive Posses­sion— The defendant No. 1 has exclusive posses­sion over the suit land and prima facie shows that she has mutated her name separately and paying regular rent to the government. Before disposal of the partition suit finally, it is suffi­cient to prove that the defendant No. 1 has prima facie arguable case for granting tempo­rary injunction in her favour……......(33) 

Principle of Natural Justice—

Since no punishment could be imposed without adhering to the principle of audi alteram partem, the principle of natural justice requiring the concerned authority to issue show cause notice and to accord hearing should be read therein even though there was no such specific requirement in the said provision…………(12)

Determination of Liability—

Though the Commissioner has power to issue an order for stoppage of export/import of a defaulter under section 202 of the Customs Act, 1969, which is a similar provision like section 56 of the VAT Act, 1991, the preconditions for issuance of any such order under section 202 is the determination of liability of the person upon whom such order will be passed. But in the present case, no such determination has been done through issuance of either show cause or demand, notice upon the petitioner for realization of any duties or taxes under the Customs Act, 1969. The only demand on the petitioner for realization of certain amount of money was done before 30-4-2015, on which day the Commissioner of Customs, vide adjudication order No. 2 of 2015 dated 30-4-2015, imposed a certain amount of penalty upon the petitioner (See annexure CC to the supplementary-affidavit of the petitioner dated 3-1-2016. However, as against that adjudication order, the petitioner has already preferred an appeal before the Tribunal, and upon such appeal, the Tribunal has in the meantime passed an ad interim order dated 14-5-2015 (see Annexure-CC 1 to the supplementary-affidavit of the petitioner dated 3-1-2016).

Since the said appeal of the petitioner is still pending before the Tribunal, and, it appears that, the entire present dispute has been triggered-off from the noncompliance of the said ad-interim order dated 4-5-2015 by the concerned customs officials, any other demand or adjudication as regards any public dues of the petitioner has not been seen……….(15) 

Constitution of Bangladesh (1972); Art. 102 (2) (b); Art. 45 & 102

Scope of Enquiry and Interference in Habeas Corpus—

Writ - Habeas Corpus--Court Martial-

High Court Division has no jurisdiction to interfere with the decision and order of Court Martial except on limited grounds of Coram non judice and malafide—

 The jurisdiction of the High Court Division in an application in the nature of Habeas Corpus is to see if a person in custody is there in pursuance of any lawful authority and when a person is serving out an order of sentence passed by a Court or tribunal, the jurisdictional validity of that order could be looked at. When such a question is agitated before the Court, the Court is first to see the provisions of the law as well as the provisions of the constitution. The nature of the proceeding and the purpose of the Act are to be considered to see the jurisdictional infirmity of the order complained. When the challenge is from an order of a Court Martial set up under the Army Act to enforce the Military law, the jurisdiction to interfere is more narrow than in the case of other Court or tribunal. It is consistent not only with the maintenance of strict discipline demanded from Defence Forces, but also to the constitutional protection given to the laws relating to the disciplined force, and also their action from any challenge in the Court. The first protection is given under Article 45, and the second in Article 102(5). Under the former, the law is protected, and under the latter the action under the law is protected. Keeping all these factors in view, all that can be said is the ground on which a decision of a Court Martial set up under the Army Act can be challenged by Habeas Corpus petition will be analogous to one we have already conceded to be available under sub-article (5) of Article 102 of the Constitution.

Supervisory jurisdiction—

Art. 109--Court Martial not a Court subordinate to the High Court Division--Constitution of Bangladesh (1972), Arts. 109 & 114

The Courts mentioned in Article 109 is to be looked at in the context in which it has been used. The Court Martial set up under the Army Act is at best a military tribunal and not a Court as contemplated under Article 10 of the Constitution. Article 114 only enables the parliament to set up Courts with jurisdiction not equal or superior to the Supreme Court, and the word 'subordinate' has been used in this sense in this Article. Neither in the Constitution, nor in any other law, do we find any provisions to make a Court Martial set up under the Army Act subordinate to the High Court Division under Article 109.

Murder—

In view of the provisions of clauses (b) (c) and (d) of section 31 of Army Act, 1952 cataloguing the offence of mutiny the argument that murder is a civil offence and cannot be tried by a Court Martial is untenable (Per B. H. Chowdhury, J)

Malafide—

In order to strike down an order passed by an excepted authority within the perview of Art. 102(5) of the Constitution e.g. Court Martial, the facts constituting malafide must have correlation with jurisdiction and be analogous to an order made quorum non Judice--Constitution of Bangladesh (1972). Art. 102 (2) (5). (Per K. Hossain. CJ)

Interpretation of Statute—

Curtailment of jurisdiction of superior Court--The jurisdiction of the superior Courts is not to be interpreted to have been taken away, and if it is so intended, it may be done by the appropriate legislative or constitutional Authority by experss words and not by implication (Per K. Hossain, CJ)