This judgment shall dispose of Writ Petitions Nos.26549 of 1998 and 11571 of 1999 as common questions are involved.
2. The petitioners in both these cases are Banking Companies. The grievance being made out is that the respondents are insisting that the advance tax payable in terms of section 53(1)(b) to be paid in the manner stated in section 53(2)(ii) of the Income Tax Ordinance, 1979, be paid on the gross returns. It has been stated that notwithstanding the fact that the term "turn over" as used in the said provision of law is not defined in the said ordinance and otherwise cannot under any permissible rule of interpretafion be deemed to mean gross return, the Central Board of Revenue issued Circular No.13 of 1997, dated 29-9-1997 to issue instructions that the advance tax be computed on the basis of gross receipts. Feeling aggrieved of this circular the petitioners filed Writ Petition No.28003 of 1997 in this Court which was allowed on 11-2-1998 and the said circular was declared to be without any legal effect. It was further directed that the adjudicating authorities under the said Ordinance shall decide the matters pending before them irrespective of the said circular and by applying their own independent mind to the law and facts of each case. The grievance being made out in the present petition is that despite the fact that the said circular has been declared to be void, the officers of the respondents are insisting that the advance tax be paid on gross receipts.
3. Learned counsel for the petitioner contends that the term "turn over" is not defined in the Ordinance and as per the dictionary meaning the term does not mean gross receipts but net receipts. Learned counsel for the respondents, on the other hand, does not concede the said A proposition but agrees that the said circular of the C.B.R. Having been set aside by this Court adjudicating authorities are to apply their own mind and to interpret the term irrespective of the said circular.
4. I find that the said Circular No.13 of 1997 has been declared to be without any legal effect by this Court in line with the dictum of the Supreme Court of Pakistan in the case of Messrs Central Insurance Co. And others v. The Central Board of Revenue, Islamabad and others 1993 SCM R 1232. In the present case, however, no element of adjudication is there. Learned counsel for the respondents has offered that let the petitioner approach .The Commissioner of Income-tax, in terms of section 138 of Income Tax Ordinance and let this matter be adjudicated upon by the said Commissioner irrespective of the sad Circular No.13 of 1997 and let him interpret the said provision of law, after hearing both the parties. The offer is fair and proper and the learned counsel for the petitioners is not in a position to refuse the same. Both these writ petitions accordingly are disposed of with a direction that the petitioners to file a petition in terms of section 138 of the Income Tax Ordinance, 1979 before the appropriate Commissioner. Upon the, filing of such a petition the said Commissioner shall summon both the parties i.e. The petitioners and the departmental representatives, hear them and decide the question as to the interpretation of the term "turn over" in section 53(1)(b) read with section 53(2)tii) of the Income Tax Ordinance, 1979.
Needless to state that the Commissioner will make his decision completely independent of the said Circular No.13 of 1997 which has been declared to be void by this Court in the judgment referred to above. No orders as to costs. .