Income Tax Ordinance (XXXI of 1979)---

----S.8---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Circular No. 15, dated 6-11-1997 issued by Central Board of Revenue ---Vires of---Payment under Golden Hand Shake Scheme, whether tantamount to salary and as such taxable---Determination---Power vested in the Adjudication Authorities--- Extent--- Circular No.15 issued by Central Board of Revenue curtailing powers vesting in the Adjudicating Authorities was declared to be without lawful authority and of no legal effect---High Court directed Adjudicating Authorities to decide the matter independently of the said Circular.

1993 PTD 766 ref.

Syed Mansoor Ali and Imtiaz R. Siddiqui for Petitioner,

Kh. Saeed uz Zafar, D.A.-G. with Muhammad Ilyas Khan, M Amir Sohail, Muzamil Akhtar, Shafqat Mahmood Chohan and Abdul Rashid for Respondents.

Date of hearing: 16th April, 1998.

JUDGMENT

This judgment shall dispose of the following writ petitions in all of which circular issued by the Central Board of Revenue on 6-11-1997 has been challenged.

Writ Petitions Nos.27604, 27819, 28031, 28765, 28766, 28767, 28768, 28769, 28770, 28771, 28772,28773, 28774, 28775, 28776, 28777, 28778, 28779, 28780, 28784,28785,28786, 28787, 28788, 28789, 28790, 28791,28792, 28793,28794, 28795,28796, 28798,28799, 28800,28801, 28802,28803, 28804, 28809,29085,29164, 29343, 29495, 29496, 29497, 29498, 29499, 29501,29502, 29503,29504, 29505,29506, 29507,29508, 29509, 29510, 29511,29512, 29513,29514, 29515, 29516, 29517,29518, 29519,29520, 29521, 29522, 29523, 29524, 29525,29526, 29527, 29528, 29529, 29530, 29531,29532, 29533,29534, 29535, 29536, 29609, 29683, 29696, 29738, 28163, 28388, 28389, 29589, of 1997, 282, 284, 330, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 414, 551, 666, 667, 835, 836, 837, 838, 839, 840, 841, 842, 960, 1018, 1396, 1682, 2543, 3617, 4057, 4058, 4059, 4060, 4061, 4062, 4063, 4064, 4065, 4066, 4067, 4068, 4069, 4806, 5054, 2865, 5234 and 5940 of 1998.

2. Mr. Imtiaz R. Siddiqui, Advocate has contended that the Central Board of Revenue has no jurisdiction to issue any circular as to curtail the discretion vesting in the Adjudication Authorities under the Income Tax Ordinance, 1979 and the circular issued in this bolding that the amounts received under the Golden Handshake Scheme where salaries were ultra vires she powers of the Central 'Board of Revenue. Reliance has been placed by the learned counsel on the cases of M/s. Central Insurance Company and others v. Central Board of Revenue, Islamabad and others 1993 SCMR 1232 = 1993 PTD 766.

3. The contention raised by the petitioner's learned counsel is unexceptionable and has not been seriously challenged by Mr. Muhammad Ilyas Khan, Advocate appearing on behalf of the respondents who, on the other hand, submitted that the matter may be kept open for adjudication by the Adjudicating Officer irrespective of the circular issued by the Central Board of Revenue. This concession by the learned counsel is in accord with the legal position as expounded in the Supreme Court judgment in Central Insurance Company's case supra.

In this view of the matter, all these petitions are allowed and the circular issued by the Central Board of Revenue on 6-11-1997 is declared to be without any lawful authority and of no legal effect. The Adjudication Officer shall proceed to decide independently of the circular as to whether the amounts received by the petitioners are tantamount to salaries or not and are taxable. The amounts, if any, withheld by the Banks and the amounts disbursed to the Department under the impugned Circular, shall be refunded to the petitioners.

No order as to costs.

C.M.A./N-107/LPetitions allowed.