NASIR MAHMOOD DAR VS FEDERATION OF PAKISTAN, MINISTRY OF FINANCE ECONOMIC AFFAIRS AND STATISTICS
1998 P T D 3906
[Lahore High Court]
Before Malik Muhammad Qayyum, J
NASIR MAHMOOD DAR and 27 others
Versus
FEDERATION OF PAKISTAN, MINISTRY OF FINANCE ECONOMIC AFFAIRS AND STATISTICS through its Secretary, Islamabad and 3 others
Writ Petition No.282 of 1998, heard on 16/04/1998.
Income Tax Ordinance (XXXI of 1979)---
----S.8---Constitution of Pakistan (1973), Art. 199---C.B.R. No. 15, dated 6-11-1997---Constitutional petition---Maintainability---Golden Handshake Scheme---Discretion of Adjudicating Authorities under Income Tax Ordinance, 1979 was curtailed by Central Board of Revenue and amounts received under Golden Handshake Scheme was declared as salary vide a circular---Effect---Circular issued by Central Board of Revenue was declared to be without any lawful authority---Adjudicating Authority was to decide independently of the C.B.R. Circular about nature of amount---Amounts withheld or disbursed under the said circular were to be refunded to petitioners.
Messrs Central Insurance Company and others v. Central Board of Revenue, Islamabad and others 1993 SCMR 1232 ref.
Syed Mansoor Ali and Imtiaz R. Siddiqui for Petitioners.
Kh. Saeed-uz-Zafar, Dy. Attorney-General for Pakistan assisted by M. Amir Sohail and Muzamil Akhtar for Respondent No. 1.
Muhammad Ilyas Khan and Shafqat Chohan for Respondents Nos.2 and 3
Mian Abdul Rashid for Respondent No.4.
Date of hearing: 16th April, 1998.
JUDGMENT
This judgment shall dispute of the following writ petitions in all of which circular issued by the Central Board of Revenue on 6-11-1997 has been challenged.
(1)Writ Petition No.282 of 1998, (2) Writ Petition No.27684 of 1997, (3) Writ Petition No.27819 of 1997, (4) Writ Petition No. 28831 of 1997, (5) Writ Petition No. 28765 of 1997, (6) Writ Petition No.28766 of 1997, (7) Writ Petition No. 28767 of 1997, (8) Writ Petition No: 28768 of 1997, (9) Writ Petition No. 28769 of 1997, (10) Writ Petition No. 28770 of 1997, (11) Writ Petition No. 28771 of 1997, (12) Writ Petition No. 28772 of 1997, (13) Writ Petition No. 28773 of 1997, (14) Writ Petition No. 28774 of 1997, (15) Writ Petition No. 28775 of 1997, (16) Writ Petition No. 28776 of 1997, (17) Writ Petition No. 28777 of 1997, (18) Writ Petition No.28778 of 1997, (19) Writ Petition No. 28779 of 1997, (20) Writ Petition No. 28780 of 1997, (21) Writ Petition No. 28784 of 1997, (22) Writ Petition No. 28785 of 1997, (23) Writ Petition No. 28786 of 1997, (24) Writ Petition No. 28787 of 1997, (25) Writ Petition No. 28788 of 1997, (26) Writ Petition No. 28789 of 1997, (27) Writ Petition No. 28790 of 1997, (28) Writ Petition No. 28791 of 199 7. (29) Writ Petition No. 28792 of 1997, (30) Writ Petition No. 28793 of 1999, (31) Writ Petition No. 28794 of 1997, (32) Writ Petition No. 28795 of 1997, (33) Writ Petition No. 28796 of 1997, (34) Writ Petition No. 28798 of 1997, (35) Writ Petition No. 28799 of 1997, (36) Writ Petition No. 28800 of 1997, (37) Writ Petition No. 28801 of 1997, (38) Writ Petition No. X8802 of 1997, (39) Writ Petition No. 28803 of 1997, (40) Writ Petition No. 28804 of 1997, (41) Writ Petition No. 28809 of 1997, (42) Writ Petition No. 29005 of 1997, (43) Writ Petition No. 29164 of 1997, (44) Writ Petition No. 29343 of 1997, (45) Writ Petition No.29495 of 1997, (46) Writ Petition No. 29496 of 1997, (47) Writ Petition No. 29497 of 1997, (48) Writ Petition No. 29498 of 1997, (49) Writ Petition No. 29499 of 1997, (50) Writ Petition No. 29501 of 1997, (51) Writ Petition No. 29502 of 1997, (52) Writ Petition No. 29503 - of 1997, (53) Writ Petition No. 29504 of 1997, (54) Writ Petition No. 29505 of 1997, (55) Writ Petition No. 29506 of 1997, (56) Writ Petition No. 59507 of 1997, (57) Writ Petition No. 29508 of 1997, (58) Writ Petition No.29509 of 1997, (59) Writ Petition No. 29510 of 1997, (60) Writ Petition No. 29511 of 1997, (61) Writ Petition No. 29512 of 1997, (62) Writ Petition No. 29513 of 1997, (63) Writ Petition No. 29514 of 1997, (64) Writ Petition No. 29515 of 1997, (65) Writ Petition No.29516 of 1997, (66) Writ Petition No.29517 of 1997, (67) Writ Petition No. 29518 of 1997, (68) Writ Petition No. 29519 of 1997, (69) Writ Petition No. 29520 of 1997, (70) Writ Petition No. 29521 of 1997, (71) Writ Petition No. 29522 of 1997, (72) Writ Petition No.29523 of 1997, (73) Writ Petition No. 29524 of 1997, (74) Writ Petition No. 29525 of 1997, (75) Writ Petition No. 29526 of 1997, (76) Writ Petition No. 29527 of 1997, (77) Writ Petition No. 295'_'8 of 1997, (78) Writ Petition No. 29529 of 1997, (79) Writ Petition No.29530 of 1997, (80) Writ Petition No. 29531 of 1997, (81) Writ Petition No. 29532 of 1997, (82) Writ Petition No. 29533 of 1997, (83) Writ Petition No. 29534 of 1997, (84) Writ Petition No. 29535 of 1997, (85) Writ Petition No. 29536 of 1997, (86) Writ Petition No.29609 of 1997, (87) Writ Petition No. 29683 of 1997, (88) Writ Petition No. 26696 of 1997, (89) Writ Petition No. 29738 of 1997, (90) Writ Petition No 28163 of 1997, 7(91) Writ Petition No. 28388 of 1997, (92) Writ Petition No. 28389 of 1997, (93) Writ Petition No.28589 of 1997, (94) Writ Petition No. 284 of 1998, (95) Writ Petition No. 330 of 1998, (96) Writ Petition No. 362 of 1998, (97) Writ Petition No. 363 of (98) Writ Petition No. 364 of 1998, (99) Writ Petition No. 365 of 1998, (100) Writ Petition No. 366 of 1998, (101) Writ Petition No. 367 of 1998, (102) Writ Petition No. 368 of 1998, (103) Writ Petition No. 369 of 1998, (104) Writ Petition No. 370 of 1998, (105) Writ Petition No. 371 of 1998, (106) Writ Petition No. 372 of 1998, (107) Writ Petition No. 373 of 1998, (108) Writ Petition No. 414 of 1998, (109) Writ Petition No. 551 of 1998, (110) Writ Petition No. 666 of 1998, (111) Writ Petition No. 667 of 1998, (112) Writ Petition No. 835 of 1998, (113) Writ Petition No. 836 of 1998, (114) Writ Petition No. 837 of 1998, (115) Writ Petition No. 838 of 1998, (116) Writ Petition No. 839 of 1998, (117) Writ Petition No. 840 of 1998, (118) Writ Petition No. 841 of 1998, (119) Writ Petition No. 842 of 1998, (120) Writ Petition No. 960 of 1998, (121) Writ Petition No. 1018 of 1998, (122) Writ Petition No. 1396 of 1998, (123) Writ Petition No. 1602 of 1998, (124) Writ Petition No. 2543 of 1998, (125) Writ Petition No. 3617 of 1998, (126) Writ Petition No. 4057 of 1998, (127) Writ Petition No.4058 of 1998, (128) Writ Petition No. 4059 of 1998, (129) Writ Petition No. 4060 of 1998, (130) Writ Petition No. 4061 of 1998, (131) Writ Petition No. 4062 of 1998, (132) Writ Petition No. 4063 of 1998, (133) Writ Petition No.4064 of 1998, (134) Writ Petition No. 4065 of 1998, (135) Writ Petition No. 406b of 1998, (136) Writ Petition No. 4067 of 1998, (137) Writ Petition No. 4068 of 1998, (138) Writ Petition No. 4069 of 1998, (139) Writ Petition No. 4606 of 1998, (140) Writ Petition No.5054 of 1998, (141) Writ Petition No. 2865 of 1998, (142) Writ Petition No. 5234 of 1998 and (143) Writ Petition No. 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 holding that the amounts received under the Golden Handshake Scheme were salaries were ultra vires the 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
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 Office: 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 in the Department under the impugned circular, shall be refunded to the petitioners.
No order as to costs."-
Q.M.H./M-795/L Petitions accepted.