1991 P T D 1056
[Lahore High Court]
Before M. Mahboob Ahmad, C.J. and Malik Muhammad Qayyum, J
Messrs NATIONAL FILM DEVELOPMENT CORPORATION LTD.,
ISLAMABAD
Versus
THE COMMISSIONER OF INCOME-TAX, ISLAMABAD
Civil Tax Reference No.21 of 1990, heard on 07/05/1991.
(a) Income Tax Ordinance (XXXI of 1979)---
---S. 136(1)---Reference---Question whether Income Tax Appellate Tribunal should have condoned the delay of four days in filing of appeal without a formal application for condonation, being not a question of law could not be determined by the High Court.
(b) Income Tax Ordinance (XXXI of 1979)---
----S. 134---Appeal to Income Tax Appellate Tribunal---Record showed that by the time the appeal had been received by the Income Tax Appellate Tribunal through post, it was barred by time--Fact that appellant had posted the appeal within time was of no consequence, as on no rational principle could the appeal be deemed to have been instituted on the day when it was posted---Appeal was deemed to have been instituted on the day when it was presented or was received by the Tribunal.
(c) Income Tax Ordinance (XXXI of 1979)--
----S. 134---Time-barred appeal to Income Tax Appellate Tribunal-a-Condonation of delay---Record showed that although it was pointed out by the Tribunal's office to the authorised representative of the appellant that the appeal was barred by four days, no application was filed by the appellant for condoning the delay nor any affidavit in support of the facts on the basis of which the delay was sought to be condoned was filed--Income Tax Appellate Tribunal, held, was perfectly justified in refusing to condone the delay and dismiss the appeal before it as barred by time.
Ghulam Ali and another v. Lal Khan and 2 others P L D 1979 Lah. 409 ref.
Saif-ud-Din Chughtai for Petitioner.
M. Ilyas Khan for Respondent.
Date of hearing: 7th May, 1991.
JUDGMENT
M. MAHBOOB AHMAD, C.J.---On an application filed by the petitioner, the Income-Tax Appellate Tribunal, has referred to this Court under section 136(1) of the Income-Tax Ordinance, 1979, the following question said to be of law and arising out of its order dated 27th February, 1985 passed in I.T.A. No.20-A/I.B. of 1982-83, relating to the assessment year 1975-76 for answer:--
"Whether in the facts and the circumstances of the case, the Appellate Tribunal should have condoned the delay of four days in filing of appeal without a formal application for condonation."
2. The facts forming background of the dispute are that the assessee/applicant is a company set up by the Federal Government for development of film industry and import of foreign films. During the assessment year 1975-76, the appellant paid Rs.27,43,852 as royalties and rentals to various companies without deducting income tax therefrom contrary to Section 18(3-B) of the Repealed Income-Tax Act. 1922. On account of this default, proceedings under Section 52 of the Income-Tax Ordinance, 1979, were initiated against the appellant and a penalty of Rs.8,21.072 was imposed in addition to which additional tax oRs.7,88,229 under Section 83 of the Ordinance was also demanded-
3. This order of the Income-Tax Officer dated 25th of February, 1981, was challenged by the petitioner by filing an appeal which was partly accepted by the Commissioner of Income-Tax Appeals on 20th May, 1982, who remitted the case to the Income-Tax Officer for re-decision. This order of the Commissioner of Income-Tax Appeals was communicated to the applicant on 16th June, 1985. The order was appealed against by the petitioner before the Income-Tax Appellate Tribunal by submitting its appeal through post which was received by the Income Tax Appellate Tribunal on 19th August, 1982. Certain objections were raised by the Assistant Registrar of the Appellate Tribunal and the applicant was required to further document its appeal. The authorized representative was also informed by the Tribunal that the appeal was prima facie barred by four days. In response to the letter addressed by the Assistant Registrar in this behalf, the authorized representative of the appellant on 18th September, 1982 filed the requisite copies of the certificate but neither any attention was paid by the applicant to the objection that the appeal was barred by time nor any application for condonation of delay was filed.
4. The appeal came up for hearing on 27th November, 1985 when an objection was taken by the respondent that the appeal was barred by time. This objection was contested by the applicant on the plea that the appeal was posted by the applicant on 24th August, 1982 by registered post and if the appeal had reached the Tribunal late, the petitioner was not at fault. However, no application even at that time for condonation of delay was made nor was any affidavit in this respect filed. The Income-Tax Appellate Tribunal vide its order dated 27th February, 1985 dismissed the appeal as barred by time.
5. The petitioner thereafter, filed an application under Section 136(1) of the Income-Tax Ordinance, 1979, for referring the dispute to this Court, with the result that question mentioned above in para. l has been referred by the Tribunal to us for answer.
6. After hearing the learned counsel for the parties, we do not find that any question of law arises for determination by this Court. It stands established on the record that by the time the appeal had been received by the Income-Tax Appellate Tribunal, it was barred by time. The fact that the petitioner had posted the appeal within time is of no consequence, as on no rational principle can the appeal be deemed to have been instituted on the day when it was posted. On the other hand, it cannot be doubted that the appeal is instituted on the day when it is presented or is received by the Tribunal.
7. More importantly, the fact noticed is that although it was pointed out by the office of the Income-Tax Appellate Tribunal to the authorized representative of the applicant vide letter dated 1st of September, 1982, that the appeal was barred by four days, no application was filed by the applicant for condoning the delay nor any affidavit in support of the facts on the basis of which the limitation was sought to be condoned was filed. In these circumstances, the Tribunal way perfectly justified in refusing to condone the delay and dismissing the appeal before it as barred by time. The view which we have taken finds support from the judgment of this Court in Ghulam Ali and another v. Lal Khan and 2 others (PLD 1979 Lah. 409).
Resultantly, the answer to the question referred to us is in the negative and against the assessee. The reference is accordingly disposed of with no orders as to costs.
M.B.A./N-500/L Reference answered in the negative.