MISCELLANEOUS APPLICATIONS NOS. 59 AND 60/LB OF 1990-91, DECIDED ON 29TH MAY, 1991. VS MISCELLANEOUS APPLICATIONS NOS. 59 AND 60/LB OF 1990-91, DECIDED ON 29TH MAY, 1991.
1991 P T D (Trib.) 1072
[Income-Tax Appellate Tribunal Pakistan]
Before Muhammad Mujibullah Siddiqui, Judicial Member and Nasim Sabir Syed,
Accountant Member
Miscellaneous Applications Nos. 59 and 60/LB of 1990-91, decided on 29/05/1991.
Income Tax Ordinance (XXXI of 1979)---
----Ss. 134 & 135---Appeal---Parties were heard on the point of limitation only and no arguments were heard on merits but while disposing of the appeals Tribunal decided the appeals on merits due to some In misunderstanding---Order of the Tribunal showed that appeals had been decided on merits but contentions of the parties did not find place in the said order and there was nothing on record to show as to what were the respective contentions of the parties which also supported the plea that no arugments were heard on merits---Tribunal in its order, however, had appreciated the facts and law involved on its own and disposed of the appeal---Held, Tribunal due to some bona fide misunderstanding overlooked the fact that the arguments had not been heard on merits and thereby a miscarriage of justice had taken place and the party (loosing the case) had been condemned unheard in violation of principle of audi alteram partem---Tribunal recalled the said order of the Tribunal and further ordered the office to refix the appeal for hearing on merits.
1991 PTD (Trib.) 650 recalled.
S.Roomi Shah, D.R. for Appellant.
Saeed Chaudhry,C.A. for Respondent.
Date of hearing: 29th May, 1991.
ORDER
MUHAMMAD MUJIBULLAH SIDDIOUI, JUDICIAL MEMBER-- By the above application the Department seeks re-calling of the order, dated 23-1-1991 by a Divisi3n Bench of this Tribunal in WTAs Nos. 13 to 15/90-91 pertaining to the assessment years 1987-88 to 1989-90.
2. Briefly stated the contention of the Department is that WTAs Nos. 13 to 15/LB/1990-91 pertaining to the assessment years 1987-88 to 1989-90 were fixed for regular hearing on 4-12-1990 when an objection was raised on behalf of the respondent/ assessee on the point of limitation. Since the objection was raised during the course of arguments therefore notice was given to the Department and hearing was adjourned to 5-12-1990. The parties then made their submissions on the point of limitation and according to the department necessary evidence was submitted to show that the appeals were filed within the period of limitation. It is further averred in the above application that on 11-12-1990, request was made to the learned Judicial Member sitting on the Bench at that time to allow the Department to resume arguments on merits and fixation of date for this purpose was sought. However, the counsel for assessee, subsequently submitted copy of the order dated 23-1-1991 whereby the Departmental appeals were dismissed. The contention of the Department is that since the appeals have been disposed of without hearing the Department on merits, therefore, the order dated 23-1-1991 may be re-called and the appeals may be fixed for hearing on merits.
3. We have heard Mr. Roomi Shah, learned D.R. for the Department and Mr. Saeed Chaudhry, C.A. for the respondent /assessee. Mr. Saeed Chaudhry has opposed the application. According to Mr. Saeed Chaudhry the preliminary hearing of appeals was fixed on 19-11-1990 where after the appeals were fixed for regular hearing on 4-12-1990. On this date an objection was raised by him on the point of limitation on which hearing was adjourned to 5-12-1990 for arguments or the point of limitation. He has further stated that on 5-12-1990 the issue pertaining to the limitation was disposed of and the hearing was adjourned to 10-12-1990 with the direction for submitting written arguments. According to Mr. Saeed A. Chaudhry when the hearing resumed on 10-12-1990 he submitted written arguments before the Bench and thereafter the appeals were disposed of on 23-1-1991.
4. We have perused the record for ascertaining the facts as alleged by Mr. Saeed A. Chaudhry. We find that there is no dispute about the preliminary hearing of appeals on 19-11-1990, fixation of regular hearing on 4-12-1990, objection on behalf of the assessee on the point of limitation on this date and the adjournment of hearing for 5- 12 -1990. We have perused the order-sheet dated, 4-12-1990 and 5-12-1990. The order-sheet dated 5-12-1990 shows that the parties were heard and the order was reserved. If the order-sheet entries dated 4-12-1990 and 5-12-1990 are read together the inference, which can be drawn is that the parties were heard on the point of limitation only. The contention of Mr. Saeed A. Chaudhry that the hearing was adjourned from 5-12-1990 to 10-12-1990 for submitting written arguments is not borne out on record. There is no entry in the order-sheet that the order was passed on 23-1-1991. A perusal of record further shows that no written arguments were available on record. Mr. Saeed A. Chaudhry has further conceded that the copy of alleged written arguments was never supplied to the D.R. A perusal of record further shows that the Bench comprising Mian Abdul Khaliq, the learned Judicial Member and Mr. Inam Ellahi Sheikh, the learned Accountant Member which heard the appeals had no sitting in Division Bench from 6-12-1990 to 14-12-1990. In these circumstances when the Division Bench was not available on 10-12-1990 the question of any hearing as alleged by Mr. Saeed Chaudhry and the submission of written arguments before the Division Bench does not arise.
5. In view of facts as narrated above we are of the considered view that the parties were heard on the point of limitation only and no arguments were heard on merits. It appears that while disposing of the appeals the learned Members of the Division Bench decided the appeals on merits due to some misunderstanding. A perusal of the order dated 23-1-1991 further shows that although the appeals have been decided on merits but the contentions of the learned representative for Department or learned representative for assessee do not find place. There is nothing in the- record to show as to what were the respective contentions of the representatives for the parties. This further supports submission of learned representative for Department that no arguments were heard on merits. The learned Members of the Tribunal appreciated the facts and law involved on their own and disposed of the appeals. In these circumstances we are convinced without any scintilla of doubt in our mind that due to some bona fide misunderstanding the learned Members of the- Bench overlooked the fact that the arguments have not been heard on merits and thereby a miscarriage of justice has taken place. The Department has been condemned unheard and on the basis of established principle of audi alteram partem the order dated 23-1-1991 is not sustainable and is hereby re-called.
6. The office is directed to re-fix the appeals for hearing on merits on 4-8-1991.
7. Before parting with this order we would like to observe that the learned counsel for the respondent has pointed out that the order dated 23-1-1991 which has been hereby re-called has been reported in the National Tax Reporter. The citation is 1991 PTD (Trib.) 650. The order is partly reported in February, 1991 NTR and partly in March 1991 Part. The Assistant Registrar is directed to send necessary information to the Chief Editor of National Tax Reporter of Lahore for necessary clarification in the earliest issue of NTR to the effect that the order in WTA Nos. 13 to 15/LB/90-91 reported vide NTR 1991 Trib. 37 has been recalled.
8. The miscellaneous applications are allowed accordingly.
M.B.A.1204/T Applications allowed.