MALIK MUHAMMAD QAYYUM, J.- The petitioner is engaged in the business of cellular telephone services, It commenced operation in Pakistan in the year 1991, and is being assessed to Income Tax by the relevant Assistant Commissioner. The last assessment was completed on 30.5.2000,
2. The grievance of the petitioner is that while deciding the case the Assistant Commissioner of Income Tax had relied upon the circular issued by the Central Board of Revenue dated 25.8.1999 and held that even in those cases where the payment has not actually been received by the petitioner they should be deemed to have received that income and liable to tax accordingly.
3. Learned counsel for the petitioner contends that the Central Board of Revenue had no jurisdiction to issue any circular affecting the decisions of the cases which are to be decided in the exercise of judicial power by its subordinate functionary. Furthermore it is pointed of that according to Section 50 of the Income Tax Ordinance, 1979 the deduction is to be made at the time of actual payment.
4. There is substance in the argument raised by the learned counsel for the petitioner, It has time and again been held by this Court and also by the Supreme Court that though the Central Board of Revenue r the highest functionary in the Income Tax Ordinance yet it has no jurisdiction to entertain with the exercise of judicial or quasi- judicial powers by its subordinate authorities which are required to decide each case on its own merits. If any authority is needed, reference may be made to the case reported as Union Bank Limited v. Federation of Pakistan (1998 PTD 2114) and The Central Board of Revenue and others v. Sheikh Spinning Mills Ltd. And others (1999 SCM R 1442).
Furthermore, a perusal of the circular shows that it is primarily based upon the judgment rendered by the Income Tax Tribunals. However, the learned counsel for the petitioner has placed on record affidavit in which it has been deposed that the judgment of the Income Tax Appellate Tribunal has been challenged before the Sindh High Court where the matter is pending and, as such, the judgment of the Tribunal is not final and the Central Board of Revenue could not have directed the authorities to follow the aforesaid judgment.
Learned counsel for the respondents says that instead of proceeding further with the petition the matter may be remitted to the Income Tax Officer to decide it according to its own judgment, on merits and without being influenced by the said circular Order accordingly. This petition is disposed of.