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IR-Appellate Tribunal
TaxHelpline 2014/130
INLAND REVENUE APPELLATE TRIBUNAL
I.T.A. No.74/KB of 2010, and 84, 178, 179 of 2011 decided on 2nd December, 2013.
Date of hearing: 25th October, 2013.
Before Faheemul Haq Khan, Accountant Member and
Mohammad Jawed Zakaria, Judicial Member
Zulfiqar Ali Memon, D.R. for Appellant (in I.T.A. No.74/KB of 2010). Shabbar Zaidi,
FCA for Respondent (in I.T.A. No.74/KB of 2010)
Shabbar Zaidi, FCA for Appellant (in I.T.As. Nos.84/KB, 178/KB and 179/KB of 2011).
Zulfiqar Ali Memon, D.R. for Respondent (in I.T.As. Nos.84/KB, 178/KB and 179/KB of
2011)
C.I.R. (LD), L.T.U., Karachi
Vs.
Messrs PAKISTAN REFINERY LIMITED
ORDER
These four appeals have been filed in this case, one by the appellant/department and other
three appeals by the appellant/taxpayer are on different grounds of appeals mentioned
hereunder:-I.T.A. No.74/KB/2010, Tax Year 2005 (Deptt. v. Taxpayer):
"That the learned Commissioner (Appeals-I) was not justified in directing to adopt the
procedure for apportionment of direct cost between two classes of income by applying subrule (3) of Rule 13 of the Income Tax Rules, 2002."
I.T.A. No.84/KB/2011, Tax Year 2006 (Taxpayer v. Deptt.):
"(1) The learned CIR(A) has erred in rejecting the basis adopted by the appellant for
apportionment of deductions without giving any cogent reason for the same. The CIR(A) in
his order has himself agreed that the arguments (justifying the basis adopted by the appellant
for apportionment of deductions) put forth by the appellant have been examined and it is
found that the same have substance.
(2) The learned CIR (A) has erred in holding that the appellant has changed the method of
accounting; for which the appellant was required to take prior permission from the
Commissioner.
(3) The learned CIR(A) has erred in maintaining the order of the Taxation Officer holding
consultancy expenses of Rs.8,760,000 to be in the nature of intangible asset, thereby
amortizing the same over the period of ten years."
I.T.As. Nos.178 and 179/KB/2011, Tax Years 2007 and 2008 (Taxpayer v. Deptt):
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"(1) The learned CIR(A) has failed to take into consideration the fact that the learned
Additional Commissioner Inland Revenue (ACIR) had passed the order under section
122(5A) of the Income Tax Ordinance, 2001 without issuing a proper notice under section
122(9). The order passed by the ACIR should have therefore been annulled on this account.
(2) The departmental representative not being present, the learned CIR (A) erred in not
providing the opportunity to the appellant to file re-joinder/rebuttal on the comments said to
have been received by him from the tax department, in response to written appeal arguments,
which were filed with the CIR (A) and sent to the tax department.
(3) The learned CIR(A) erred in upholding the action of the ACIR in applying Rule 231 of
the Income Tax Rules, 2002 for the purposes of apportionment of deductions under section
67 of the Income Tax Ordinance, 2001. Rule 231 being in direct conflict with section 67 is
redundant and not applicable.
(4) Without prejudice to the above grounds of appeal, if Rule 231 was to be applied for
determining taxable income of the appellant then the ACIR should have assessed the income
under sub-rule (1)(a) of Rule 231 and not sub-rule (1)(b) of Rule 231."
2. In the context of above grounds of appeal in all the four appeals, the main issue is proration
of expenses in terms of section 67 of the Income Tax Ordinance, 2001 read with Rule 13 and
Rule 231 of Income Tax Rules, 2002. The other ancillary issues would also be taken up as
per ground of appeal in the relevant year.
3. On the date of hearing Mr. Shabbar Zaidi, FCA Senior Partner of Messrs A.F. Ferguson
and Company leading a teams of CAs appeared on behalf of the taxpayer, whereas Mr.
Zulfiqar Ali Memon, the learned D.R. attended on behalf of the department. Both the
representatives of rival parties were heard at length and issues deliberated upon in the context
of relevant case-laws.
4. The learned AR Mr. Shabbar Zaidi drawn our attention to the following verbatim of
section 67 to prorate the income of the taxpayer relating to NTR and PTR segments for the
purpose of taxation:-"the expenditure shall be apportioned on any reasonable basis taking account of the relative
nature and size of the activities to which the amount relates."
5. According to him the reasonable basis in the instant case would be the nature of activity
i.e. processing of Crude Oil and size of activity in reference to input of material and output
thereof. Thus he emphasized that not only in the instant case but in all other cases of identical
nature where crude oil is processed to obtain different products/bye-products, the expenses
incurred whether direct or indirect be apportioned in reference to volume of activity, and
output should be a basis of apportionment of all direct and indirect expenses. This would be a
reasonable basis in the context of price ceiling on the sales in the local market and free yield
of exported items.
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6. As per facts, Pakistan Refinery Limited (PRL) is engaged in the production and sale of
petroleum products. The raw material for all products is crude oil/condensate; from which
various products are extracted. One of the products is 'Naptha', Naptha has no local market as
Pakistan does not possess 'oil cracker' technology. Accordingly, whole production of Naptha
is exported. PRL operates under a Pricing Structure which is binding; whereunder the sale
price (ex-Refinery price) of some of the petroleum products are fixed by the Government
(controlled price). Other products are sold at the market price without intervention of the
Government (uncontrolled price). Following products are extracted from crude oil.
ProductsBasis of determining the sale price
HSD JP-1 JP-4 Kerosene Motor Gasoline
Controlled by the Government
LPG Furnace Oil MTT solvent Naphtha
Uncontrolled price (Market price) with upper ceiling Uncontrolled price
(Market price) with upper ceiling Uncontrolled price (Market price) Uncontrolled price
(Market price)
7. The learned AR pleaded that Section 67 of the Income Tax Ordinance, 2001 requires
apportionment of deductions, where a taxpayer derives Income from more than one head of
income or where the income is subject to the Final Tax Regime (FTR). In consonance to
section 67(2) of the Income Tax Ordinance, 2001, Rule 13 was made in the Income Tax
Rules, 2001 for the apportionment of deductions.
8. The AR opined that there is no dispute that section 67 requires apportionment of
deductions for common expenditure. Such apportionment is to be made on a reasonable basis
taking account of the relative nature and size of the activities. Though turnover basis of
apportionment of deductions is mentioned in Rule 13(3) of the Income Tax Rules, 2002, a
taxpayer can also adopt a different basis if the same is reasonable. Rule 13 (3) and Rule 13
(4) state as under:-"13(3)(a) Any common expenditure excluding financial expenses relatable or attributable to
non- business advances or loans and the amount referred to in sub-rule (2) relatable to
business including presumptive and exempt income, shall be allocated to each class of
income according to the following formula, namely:-A X B/C
Where-(A) is the amount of expenditure incurred;
(B) is the total amount of gross receipts (without deduction of
expenditures) for the tax year for the class of income; and
(C) is the total amount of gross receipts (without deduction of expenses) and net gains for the
tax year of all classes of income;
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(b) Where, however, net gain, brokerage, commission and other income is to be taken into
account on turnover of such transactions, such income shall be compared with gross profit
from business for adopting figures for components "B" and "C" of the formula at (a) above".
"13(4) "Where expenditures are to be allocated among different classes of income under subrule (3), consideration shall be given to the nature and source of each class of income, on
reasonable basis to earn each class of income (particularly, in allocating selling expenses)"
Effectively, turnover is residuary basis for 'common expenses', mainly being costs other than
raw materials, for which reasonable basis cannot be ascertained. In substance, sub-Rule 13(3)
does not apply for the apportionment of 'cost of raw materials'; where there is almost a certain
reasonable basis available for allocation of costs.
9. The AR emphasized that in the tax returns, for the purposes of apportionment of
deductions under section 67, cost of crude oil is apportioned in the ratio of quantity sold as
against the contention of the tax department that the apportionment should have been made in
the ratio of turnover. For example, out of 1,000 tones of product sold, 100 tones is 'Naptha',
10% of the cost is apportioned to export sales and the remaining 90% is claimed as deduction
for computing income under the Normal Tax Regime. Expenses which purely relate to export
have not been claimed as deduction.
10. Amongst other factors and determination of cost allocable to various products on
'reasonable basis', in this particular case, the additional factor is that, considering the
controlled price regime of the Refinery, where selling price of some of the products is
controlled by the government, and the taxpayer is free to sell other products at market price
with upper ceiling fixed by the Government and a few at market price without any
Government control, the turnover basis for apportionment of expenses cannot be a reasonable
basis, as it gives absurd results. The turnover basis assumes that all products earn equal
profits, which is not true in the case of the Refinery. The margins for the controlled price
products are determined by the government whereas the Refinery may earn higher or lower
profits on other products depending on the market forces.
11. While referring to relevant applicable rules, AR referred rule (Rule 231) for the
computation of profit attributable to exports. In the tax years 2007 and 2008, the Taxation
Officer invoked Rule 231 of the Income Tax Rules, 2002. Rule 231 deals with computation
of export profit attributable to export sales. This rule is a legacy of the Rule 216 of the
Income Tax Rules, 1982. Under Part IV, First Schedule to the Income Tax Ordinance, 1979,
there was a provision which allowed tax rebate at the rate of 50% to the exporters on export
of goods manufactured in Pakistan.
12. The AR was of the view that there was no parallel section to section 67 of the Income Tax
Ordinance, 2001 in the repealed Income Tax Act, 1922 or repealed Income Tax Ordinance,
1979. Therefore, for computing export profits, Rule 216 was introduced in the Income Tax
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Rules, 1982. This rule was carried forward as Rule 231 in Income Tax Rules, 2002. In view
of section 67 of Income Tax Ordinance, 2001 and Rule 13 of Income Tax Rules, 2002, Rule
231 was deleted through S.R.O. 392(I)/2009 dated May 19, 2009. However, the same was
reinstated through S.R.O. 58(I)/2010 dated January 2, 2010. The question that arises whether
in the case of exporters only Rule 231 is to be followed or the provisions of section 67 will
prevail which allows a taxpayer to apportion deduction on a reasonable basis? The issue has
been decided in a recent decision of the Sindh High Court (HC) reported as 2013 PTD 2095
in the case of Quality Textile Mills Limited.
(Referred Question of law)
"Whether in the fact and circumstances of the case, the learned Tribunal has correctly
concluded that Rule 231 of the Income Tax Rules, 2002 is applicable to the taxpayer's case?"
The High Court after discussing section 67, Rule 13 and rule 231 at length, concluded as
under:-"in our view the position that emerged is that Rule 231 has no application to a situation where
the apportionment of expenditures is being considered or the issue is how expenditures
relatable solely to one 'class of income' are to be dealt with. For this purposes, it is section 67
read with Rule 13 that is applicable. The genesis of Rule 231 in the predecessor legislation
and rules framed thereunder makes it clear that the objective sought to be achieved through
this was quiet different. It has no bearing on the issues at hand. Its predecessor rule 216 dealt
with a matter peculiar to the 1979 Ordinance, and was framed in exercise of specific statutory
powers conferred to achieve a specific objective"
"In our view, rule 231 is and ought to be regarded as, unfortunate and unnecessary holdover
from the 1982 Rules. It may be noted that learned counsel for the respondent submitted that
Rule 231 was omitted in 2009 but reinsert (in some what different form) in 2010. Learned
counsel submitted on this basis that the Rule ought to be regarded as and exercise of the
power conferred on the Board section 67. With respect, we are unable to agree. We accept the
submission by learned counsel for the department that the two rules, 13 and 231, have
entirely different and separate subject matters. This is so far the reasons given herein above.
It also follows that we are unable to agree with learned counsel for the respondent that rule 13
embodies a general rule, while rule 231 is a specific provision and hence has to be applied in
preference to the former. That is not so at all"
"In view of the foregoing, the question raised before us is answered in favour of the applicant
department and against the respondent taxpayer"
13. As per AR, the above cited judgment of SHC, section 67 of the Ordinance read with Rule
13 of the Income Tax Rules, 2002 is the basis and Rule 231 is not necessarily applicable
where 'Reasonable' basis exists.
14. The AR alternately pleaded that without prejudice to the argument that Rule 231 is abinitio not applicable, for the argument sake if for any reason, Rule 231 is to be applied in the
case of Pakistan Refinery Limited, then sub-rule 231(1)(a) will apply and not sub-rule
231(1)(b). Rule 231 is reproduced
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Below:-"231" (1) Where a taxpayer exports any goods manufactured in Pakistan, the taxpayer's profit
attributable to export sales of such goods shall be computed in the manner, namely:-(a) Where a taxpayer maintains separate accounts of the business of export of goods
manufactured in Pakistan, the profits of the export business shall be taken to be such amount
as may be determined by the Commissioner in accordance with the provisions of the
Ordinance on the basis of such accounts; or
(b) In the other cases, the profits of such business shall be taken to be an amount which bears
to the total profits of the business of the taxpayer from the sale of goods, the same proportion
as the export sales of goods manufactured in Pakistan bear to the total sale of goods."
15. Under the Rule 231, if separate accounts are maintained then the profit on export business
is to be determined on the basis of such accounts, otherwise the profit for export business is
to be taken to be an amount determined in the ratio of export sales to total sales. The tax
department is erroneously taking a view that the 'separate accounts' mean 'separate books of
accounts'. Though the Refinery has not maintained the separate books of accounts for export
business, it has made separate accounts for the export business. Therefore, its income for the
export business is to be determined on the basis of Rule 231(1)(a) and not 231(1)(b).
INTERPRETATION BENEFICIAL TO THE TAXPAYER IS TO BE PREFERRED
16. The principle that, 'when two equally reasonable constructions are possible, one strict and
other beneficial, then the latter should be preferred' (Supreme Court (1961 PTD 375) was
followed by the Lahore High Court in the case reported as (1999) 80 Tax 217.
17. The Lahore High Court in the case reported as (1999) 80 Tax 217 allowed the petition on
the principle that 'when two equally reasonable constructions are possible one strict and other
beneficial, then the latter should be preferred' The Court in that case also followed another
principle of law that' in case of any ambiguity or doubt arising from the construction, the
same should be resolved in the favour of the subject.
18. After giving due considerations to various areas and referred laws, we are of the opinion
that without mention of value of goods and sequences, the account communicate no
meanings. Thus, the purpose of accounting is to provide the financial information that is
needed for economic decision making. The four fundamental financial statements i.e. Balance
sheet, Income Statement, Statement of Owner's Equity and Statement of Cash flow would
become meaningless if element of currency is taken out of them. Similarly, description,
measurement, valuation and interpretations of economic activities budgetary and forecasts
base on currency alone. The following direct, indirect and connected stake holders derive
meanings from the accounting presentation by virtue of activity and its impact in currency.
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Primary Users:
(i) Management.
(ii) Employees.
(iii) Owners.
(iv) Regulatory Authorities
Secondary Users:
(i) Creditors.
(ii) Tax Collectors.
(iii) Customers.
(iv) Regulatory Authorities.
19. Importance of "functional currency" (Pak Rupee in the case of instant taxpayer) as a
bench work applicable to selling price, transactions with local or foreign markets, cash flow,
financing, expenses and other inter-business transactions. Hence the "currency" is universal
and sole mode of measurement analysis, reporting, monitoring and projecting the
organizational activity. On the contrary, an accounting presentation based on quantities
would not only be quite absurd but also be unable to express some material areas of activity
i.e. depreciation, intangibles, dividend, loan, work out equity, repair and maintenance etc.
Therefore, currency is common denominator indicating all the parts into which onewhole is
divided.
20. Now considering the provisions of Section 67 of the Income Tax Ordinance and emphasis
of learned AR, in the following areas:-(i) Reasonable Basis.
(ii) Relative nature and size of activities.
(iii) To which the amount relates.
We think that reasonable is a relative term and it donates sound thinking within the bond of
common sense possessing the faculty of reason. Reasonability is contingent upon time, acts
and aggregate facts. Reasonable basis is linked with relative nature and size of business
activities as represented by the amount. So the law talk of four elements i.e. reasonable,
nature, size and amount simultaneously. We have also gone through the following judgments
of apex courts:-PLD 1997 SC 582 = 1997 PTD 1555 Ellahi Cotton
Wherein the word "reasonable" has been defined as under:-"The word reasonable" is a relative generic term difficult of adequate definition. While it has
been said that it is an ordinary word in common use and familiar to the average person, in
fact the dictionaries give a number of meanings for the word, and it has various shades of
meaning, and the particular shade is to be determined according to the context and
circumstances of each particular case.
"Reasonable" is defined as meaning agreeable to reason; conformable to reason; governed by
reason; having the faculty of reason; rational; thinking, speaking, or acting rationally, or
according to the dictates of reason; sensible.
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It is also defined as meaning just; proper; fair; equitable; and, in addition, the term has been
construed as meaning honest.
"Reasonable" is further defined as meaning ordinary or usual; not immoderate or excessive;
not capricious, arbitrary, or confiscatory."
Wherein the question of "reasonableness" has been dilated upon as follows:"238. Reasonableness.
The general rule is that the question of the reasonableness of an act otherwise within
constitutional bounds is for the legislature exclusively, and that in ordinary cases the courts
have no revisory power concerning it nor any power to substitute their opinion for the
judgment of the legislature. Mere unreason-ableness does not necessarily render a statute
unconstitutional. If the legislature abuses its power to make laws and to judge of their
reasonableness, the remedy lies with the people, through the ballot box. But this rule does not
mean that constitutional guarantees may be violated by unreasonableness. Thus, the courts
may inquire whether an act of Congress is arbitrary or capricious that is, whether it has
reasonable relation to a legitimate end. Reasonableness is the ultimate test of constitutionally
in many situations, such as exercise of the police power and conformity with the
requirements of equal protection of the laws and due process requirements of equal protection
of the laws and due process of law."
PLD 2002 Pesh. 118 - High Court Peshawar.
"The word "reasonable" is defined as under:-Reasonable means fair, proper, just moderate, suitable under the circumstances. Fit and
appropriate to the end in view. Having the faculty of reason; rational; governed by reason;
under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to
the dictates of reason. Not immoderate or excessive, being synonymous with rational, honest,
equitable, fair, suitable, moderate,
tolerable.
"The word "reasonable" has also been defined as under:-Reasonable. (i) Conformable to reason; such as is rationally fitting or proper; sensible as, a
reasonable view. (ii) Endowed with the faculty of reason; as, reasonable being. (iii) Acting or
thinking in conformity with the dictates of reason; as, any reasonable person will admit this.
(iv) Characterized by moderation; moderate.
"The word "reasonable" has further been defined as follows:-Reasonable (-Z-) a. 1. Having sound judgment, sensible moderate, nor expecting to such,
ready to listen to reason. 2. In accordance with reason, not absurd; within the limits or reason,
not greatly less or more than might be expected; inexpensive, not extortionate; tolerable, fair.
3. (arch.) endowed with faculty of reason.
The word "reasonable" is a relative generic term difficult of adequate definition. It inter alia
connotes agreeable to reason; comfortable to reason; having the faculty of reason; rational;
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thinking, speaking, or acting rationally; or according to the dictates of reason; sensible; just;
proper and equitable or to act within the Constitutional bonds.
Keeping in view the definitions of word "reasonable" it was the duty of the prosecution of
prove a prima facie case which was in accordance with the reason, not absurd, fair, proper,
just, moderate and suitable under the circumstances.
PLD 2002 Lah. 369 - High Court Lahore.
The standard of proof required to discharge the initial burden of proof under section 14 of the
National Accountability Bureau Ordinance, 1999 is a "reasonable case". The word
"reasonable" means "Fair, proper, just, moderate, suitable under the circumstances... ...Not
immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable,
moderate, tolerable".
2000 CLC 1583 - High Court Karachi.
---"Reasonable"---Connotation and application---Not possible to lay down a universal rule to
determine what is "reasonable"---What may be reasonable in one set of circumstances may be
altogether unreasonable in another---Question of reasonableness has to be considered always
in the relevant context."
21. Hence reasonability demands a method comprehendible to all, a basis having universal
application at least upon the cases of identical nature, in accordance with all applicable laws,
perpetualeteruality in it and prudently meaningful for all the stakeholders. That in the context
of section 67, reasonability is dove-tailed with nature and size of the activities represented by
the related amounts.
22. Now coming to the issue of separate accounts or separate books of accounts, we think that
the question is not only irrelevant but also unable to lead towards a definite and undisputed
conclusion. The maintenance of separate account of all heads of income, expenditure assets,
liabilities, profits, losses or equity for income derived from exports and income derived from
local sales has neither been maintained by the taxpayer nor it is possible in the case of nature
of business. The bifurcation of core activity assessable under NTR & PTR, ascertaining their
mutual ratio, would ultimately provide the basis to allocate inseparable common expenses.
Therefore, in the absence of all "account" maintained separately, the methodology given in
rule 13(3) read with section 67 has its universal application.
23. The other issue is to adopt a legal interpretation favourable to the taxpayer in the light of
relied case-law. In the instant case, a favourable position of the tax payment dependents upon
following fundamental variables:
Variables
(1) Import price of Crude Oil (Price in the International market).
(2) Local sale Price of Products (Percentage share of products with or without price ceilings).
(3) Export Sale Price of "Neptha".
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(4) Yearly Tax rates applicable on FTR & NTR.
(5) Volume of activity.
24. Firstly, all variables have a complete dependence on amount/currency. Secondly, any one
of the above variable will alter the tax burden on yearly basis or periodical basis. So in that
scenario, there can be no permanent basis to apportion the expense to work out the profits
assessable under PTR & NTR because due to change in the above variables, one favourable
basis would turn into adverse basis and every year a new basis can't be adopted to benefit the
taxpayer. This is highly for seeable in the volatile international oil market. We think that a
reasonable basis should have a life and reasonable permanence in it instead of a reasonable
basis changing every year.
Conclusion:
25. In the context of foregoing, we hold that Rupee (Currency) value of sales is the most
reasonable denominator to apportion the direct and indirect common expenses. The appeal of
the department in tax year 2005 is allowed and appeals of the taxpayer on this issue in the tax
years 2006, 2007 and 2008 fail. Ordered accordingly.
I.T.A. No.74/KB/2010, Tax Year 2005 (Deptt. Vs Taxpayer):
Change in Method of Accounting:
26. The taxpayer has agitated upon the change in method of accounting not allowed by the
Commissioner Inland Revenue (Appeal) as the taxpayer failed to obtain the prior approval
from concerned Commissioner. The provisions of section 32 of Income Tax Ordinance are
very clear on this. Since the permission was not obtained by the taxpayer, the said change
might have resulted in deferment of income or so and may not be material at this stage i.e.
after five years. Moreover, the learned A.R. has not pressed upon this particular ground of
appeal during the hearing. Hence the findings of CIR(A) on the issue are maintained.
Consultancy Expenses:
27. The next ground of taxpayer appeal is regarding (feasibility study) consultancy expenses
amounting to Rs.8.760 (M), which were amortized by the Assessing Officer as cost of
intangible asset. We think in the case of any conflict among IAS-38 of section 24 or section
25, of the Income Tax Ordinance, the statutory provisions would prevail upon. The advantage
of benefit of such expense beyond one year has not been denied by the taxpayer at any stage.
Hence the treatment meted out by the two officers below does not call for any interference
and the addition is maintained.
25. I.T.As. Nos.178 and 179/KB/2011, Tax Years 2007 and 2008 (Taxpayer v. Deptt.):
(i) As per ground of appeal No.1, the Officer (ACIR) has not provided repeated opportunity
to the taxpayer, but also incorporated the instance of taxpayer. On many issues he dropped
proposed amendment consequent upon satisfactory reply of the taxpayer. The appeal in
reference to this particular ground of appeal is rejected.
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(ii) That in reference to ground of appeal No.2, the Commissioner Inland Revenue (Appeals)
allowed due opportunity to both the parties. He considered it sufficient not to have another
round of cross arguments. Hence, the plea of taxpayer that further opportunities were not
granted, is neither worth consideration neither material in the circumstances of the case. None
of the parties is able to claim that it remained unheard. Hence, appeal of the taxpayer is
rejected on this count.
29. Other grounds of appeal in both the years stand decided while adjudicating upon the issue
of apportionment of expenses between NTR and FTR in the earlier part of this order.
30. All the appeals are disposed off to the extent in the manner discussed above.
Result: Order accordingly.
Note: The reader must study original text or certified true copy of the
case/judgment or visit official website of the courts.
However citations are as follow 2014 PTD 935 & 110 TAX 1
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