MUHAMMAD KHALID MEHMOOD KHAN, J. -Through this Constitutional petition, petitioner has assailed orders dated 7.11.2009 and 22.4.2010 whereby the petitioner was declined to refund Zakat deducted on their predecessor-in-interest deposit.
2. Predecessor-in-interest of petitioner Major (Retd.) Muhammad Tariq Butt was maintaining a Special Savings Account No. 383 with Pakistan Post Office Savings Bank, R.A. Bazar, Post Office Branch, Lahore. The depositor died on 4.4.2008. The petitioner applied for issuance of succession certificate, the certificate was granted on 19.7.2008. The petitioner after issuance of succession certificate approached the respondents for encashment of saving account No. 383, respondent No. 2 accorded sanction for encashment on 6.12.2008. The respondents, however, at the time of encashment deducted an amount of Rs. 130079/- as Zakat for the year 2008-2009. The petitioner then filed representation which was rejected on 7.11.2009. The petitioner then assailed the said order through revision before respondent No. 2 under Rule 27 of the Zakat (Collection and Refund)
Rules, 1981. The said revision was also dismissed on 22.4.2010, hence the present petition.
3. Notices were issued to respondents, they filed report and para-wise comments and claimed that Zakat could not be deducted under rules in respect of assets of deceased persons who was alive on the valuation date. However, if the depositor was already died on the valuation date, the assets are presumed to have been inherited by his successor, and Zakat will be deducted from the assets in that Zakat year and the declaration submitted by the deceased came to an end.
4. Learned counsel for petitioner has placed reliance on Bank Alfalah Limited v. Administrator General, Zakat Administration, Government of Pakistan, Islamabad and another (PLD 2009 Lahore 426), Multiline Associates v. Ardeshir Cowasjee and others (1995 S.C.M.R. 362), Messrs United Woollen Mills Ltd. Workers Union v. Messrs United Woollen Mills Ltd. (2010 SCMR 1475), Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268), Federation of Pakistan, through Secretary, Government of Pakistan, Finance Division, Islamabad and 2 others v. Miss Farzana Asar (PLD 1999 Supreme Court 476) and Mst.
Bashiran Bibi v. State Life Insurance Corporation of Pakistan (2004 CLC 1392) and submits that impugned order passed are non-speaking order. The instructions/Procedure No. 19 of the Procedure for Collection of Zakat by Post Offices is in violation of Zakat and Ushr Ordinance, 1980.
He submits that they have inherited the estate of deceased prior to the violation date and as such the action of respondents is against law.
5. Learned Deputy Attorney General for Pakistan submits that under procedure the legal heirs of deceased depositor are bound to pay Zakat as they have not submitted any declaratior for non- deduction of Zakat before valuation date and as such Zakat was rightly deducted from the estate of deceased. Learned D.A.G. Submits that deduction of Zakat is mandatory under law.
6. Heard, record perused.
7. Without going into any controversy about the legality of instructions/procedure it Is an established fact that Zakat could not be deducted by the respondents/Government in the presence of declaration by the depositor. Admittedly the valuation date for deduction of Zakat was 1.9.2008. The depositor died on 4.4.2008. Learned Trial Court granted succession certificate to petitioner on 19.7,2008. Admittedly on 19.7.2008 Zakat was not deductible as the valuation, date i.e. First Ramzan was on 1.9.2008. Submission of succession certificate is sufficient to prove that on the date of its presentation to respondents, the respondents were duty bound to encash certificate, hence, no question of any valuation date arose. The respondents continued to linger on the encashment of certificates upto 6.12.2008. The delay in payment of estate of deceased is on the part Of respondents. Admittedly succession certificate was produced before valuation date and as such Zakat was wrongly deduced from petitioner's account.
8. In view of above this petition is allowed and respondents are directed to refund Zakat deducted on their assets.