MA. (EH) NO.106/KB, TTA NO.8121/KB AND ITA NO.8122/KB OF 1992-93, VS MA. (EH) NO.106/KB, TTA NO.8121/KB AND ITA NO.8122/KB OF 1992-93,
1993 P T D 627
[Income-tax Appellate Tribunal Pakistan]
Before Muhammad Mujibullah Siddiqui, Judicial Member
and Nasim Sabir Syed Accountant Member
MA. (EH) No.106/KB, TTA No.8121/KB and ITA No.8122/KB of 1992-93, decided on 30/11/1992.
(a) Income Tax Ordinance (XXXI of 1979)---
----Ss.134 & 138---Appeal before Tribunal---Maintainability of appeal-- Appellant had waived his right of appeal by preferring revision application under S.138 of the Ordinance and Department Representative before the High Court in Constitutional proceedings initiated by the assesses in the same case had stated that assessee could still file appeal before the. Appellate Tribunal-- Held, notwithstanding the statement of Departmental Representative before the High Court it was duty of the Tribunal to decide the question of maintainability of appeal before it in circumstances.
Mrs. Shama Ahsan v. Province of Sindh PLD 1984 Kar. 195 ref.
(b) Income-tax---
----Waiver---Connotation.
The generally accepted connotation of waiver is that to constitute waiver there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or such conduct as warrants an inference of the relinquishment of a known right or privilege: Thus, a person may waive any right or protection provided by any law but once a right of protection has been waived thereafter he cannot raise the issue and cannot be allowed to turn round and assert the same right.
The doctrine of waiver extends to rights and privileges of any character and since the word "waiver" covers every conceivable right, it is a general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred by statute or guaranteed by Constitution, provided such rights and privileges rest in the individual, or intended for his sole benefit, do not infringe on the rights of others, and further, provided the waiver of the right or privilege is not forbidden by law and does not contravene public policy, and the principle is recognized that every one has right to waive, and agree to waive, the advantage of law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing of any public right and without detriment to the community at large.
Mrs. Shama Ahsan v. Province of Sindh PLD 1984 Kar. 195; Black's Law Dictionary; Interpretation of Statutes by Maxwell, 12th Edn.,, p.330; Wharton's Law Lexicon; V.V. Chitalay and S. Appurao on Indian Evidence Act, Vol. 6; Shahriyar Ali Patudi v. Decora Furnishers PLD 1985 Kar. 47; Muhammad Ahmad v. Mrs. Qamar Hasan Shah 1980 CLC 664 and Corpus Juris Secundum, p.105 Note 32 ref:
(c) Income Tax Ordinance (XXXI of 1979)---
----Ss.134 & 138---Appeal before Income Tax Appellate Tribunal-- Maintainability--- Where the assessee had waived his right of appeal by invoking the revisional jurisdiction, he could not be allowed to turn round and assert his right of appeal before Tribunal.
The law permits an assessee to waive his right of appeal and invoke the revisional jurisdiction and admittedly in the present case the assessee had waived his right of appeal and had invoked the revisional jurisdiction. Thus, in these circumstances the assessee could not be allowed to turn round and assert his right of appeal. It was not a case of pursuing remedy in some wrong appellate forum under some misconception of facts or law but it was a case of intentional relinquishment of known right and electing of a particular forum for pursuing the remedy. When the assessee had chosen to pursue a particular remedy provided in law then he should take the proceedings to their logical end and he could not be allowed to turn round and assert a right which he had already relinquished by admitted waiver of the right of appeal:
The Tribunal observed that the Board had rejected the revisional application. The Board had merely informed that it had jurisdiction under section 1.38 as amended by Finance Act, 1992 to deal with revision applications made against orders of AA.Cs. passed after 1-7-1991 and, therefore, the assessee's case could not be dealt with as order of A.A.C. was passed before 1-7-1991. It was still open to the assessee to apply to the Board for forwarding the revision application to the authority concerned empowered to hear the revision applications or in the alternative the assessee may prefer fresh revision applications before the competent authority, seeking condonation of delay for pursuing remedy before the wrong forum under misconception of law. It is for the assessee to adopt the course deemed fit and the observations by the Tribunal were only directed to the point that the appeal did not lie to the Tribunal after the right had been admittedly waived and the assessee could pursue remedy in revision only.
Zia H. Rizvi for Appellant.
Israr Rauf, D.R. for Respondent.
Date of hearing: 22nd November, 1992.
ORDER
MUHAMMAD MUJIBULLAH SIDDIQUI (JUDICIAL MEMBER).---By above Miscellaneous Application No. 106/KB of 1992 93 the appellant has prayed for out of turn hearing of ITA No. 8121/KB of 1992-93 and ITA No. 8122/KB of 1992-93 relating to the assessment years 1980-81 and 1981-82. A perusal of record shows that the appeals are barred by time by 131 days and the appellant has submitted application for condonation of delay which is reproduced below for the sake of convenience:---
"APPLICATION FOR CONDONATION I OF APPEAL
1. That the application for condonation of delay in filing of appeal enclosed on the following points of law and facts:
(a) That the assessee waived his right of appeal before the ITAT and a revision application under section 138 of the Income-tax Ordinance was filed before the Member, C.B.R. (Judicial) on 1st April, 1992.
(b) That the period for filing the appeal before the Tribunal had not expired at that date and assessee preferred to invoke the revisional provisions for immediate relief.
(c) That a letter was received on 16-7-1992 informing the assessee that the Member Judicial was not competent authority to hear the appeal against the orders passed by the Appellate Assistant Commissioner due to the change of law.
(d) That the assessee filed a Writ Petition No.D-1962 of 1992 before the Sindh High Court at Karachi against the above order and the following order was passed by the Hon'ble Court which is enclosed as Annexure `A'. The relevant portion of the order is reproduced:
`The petitioner had filed revision application under section 138 of the Income Tax Ordinance, 1979 for assessment years 1980-81 and 1981-82, before the C.B.R. but was informed that the impugned order was passed before 1-7-1991 and therefore the revision did not lie against the said order. Mr. Sheikh Haider has stated that the petitioner can even now file appeal before the Appellate Tribunal under section 135 of the said Ordinance and also apply for condonation of delay in filing appeal as the time has been consumed due to bona fide misconception of law.'
It is on the above given law and facts-that the application is enclosed for condonation of delay.
It is, therefore, respectfully prayed that the appeal being filed before this Court may kindly be treated to be within time."
2. Heard Mr. Zia H. Rizvi, learned counsel for the appellant and Mr. Israr Rauf, I.A.C., learned Representative for the Department. We have asked Mr. Zia Rizvi as to how the appellant can exercise his right of appeal after waiving the same admittedly. So far as the fact if the right of appeal has been waived or not is concerned we do not find any difficulty on the issue because it is admitted position and is clearly contained in para. (a) of the application for condonation of delay. Mr. Zia Rizvi has stated that he realized the difficulty as the appellant is not entitled in normal course to exercise his right of appeal after-waiving the same but according to Mr. Zia Rizvi he has preferred the present appeals because of the statement of learned counsel for the Department before the Hon'ble High Court, that the appellant can still rile appeal before the Appellate Tribunal and can apply for condonation of delay in filing appeal as the time has been consumed due to bona fide misconception of law. Mr. Zia Rizvi has further stated that in fact the appellant after waiving his right of appeal opted to exercise the right of revision and the remedy lay in revision proceedings. Mr. Zia Rizvi has further stated that after waiving the right of appeal the appellant preferred revision petition before the Member Judicial (Revision), C.B.R., Islamabad who issued a clarification vide letter, dated 13th July, 1992 to the effect that the Board has jurisdiction under section 138 of the Income Tax Ordinance, 1979 as amended by-the Finance Act, 1992 to deal with revision applications made against orders of AA.Cs. passed after 1-7-1991 and that the appellant's case cannot be dealt with as order of AA.C. was passed before 1-7-1991. Mr. Zia Rizvi has further submitted that the right course for the Board would have been in sending the revision application to the Income-tax authority empowered to exercise revisional jurisdiction in respect of the orders passed before 1-7-1991. Mr. Zia Rizvi has maintained that for this reason the appellant filed a writ petition before Hon'ble High Court. Mr. Zia Rizvi has conceded that notwithstanding the statement of learned Advocate for Department before the Hon'ble High Court that the appellant can still file appeal before the Appellate Tribunal, the legal position is required to be examined by this Tribunal independently. We are also of the view that notwithstanding the statement of learned counsel for the Department before the Hon'ble High Court it is our duty to decide the question of maintainability of appeal before us. If any authority is required on this point reference can be made to the judgment of Sindh High Court in the case of Mrs. Shama Ahsan v. Province of Sindh PLD 1984 Karachi 195. It has been held by Hon'ble Mr. Justice Ajmal Mian as follows:-
"It has been further urged by Mr. Mobeen Khan that in any case any alleged concession on the part of the then petitioner's counsel did not absolve respondent No.2 from deciding the question of limitation. In support of his above submission he has referred to the case of Ahsan Ali and others v. District Judge and others PLD 1969 SC 167 and the case of Government of West Pakistan through the Secretary, P.W.L. (Irrigation Branch), Lahore v. Mian Muhammad Hayat PLD 1976 SC 202. In the first case the Full Bench of the Hon'ble Supreme Court (the judgment of which was written by Justice Hamoodur Rehman, C.J.) held that whether the plea of limitation was raised or not, it was the duty of the Settlement Court to have noticed the point of limitation and that a waiver of the question of limitation is not permissible even where the period of limitation is prescribed by special law or a local law. In the second case a Full Bench of the Hon'ble Supreme Court held that any concession on the part of the Advocate-General of the erstwhile West Pakistan as to the interpretation of rule 73(a) of the Civil Service Rules (Punjab) does not bind the particular party of the Court and that it was the duty of the Court to place the correct construction. A passage from the Supreme Court judgment in the case of Government of West Pakistan v. Nasir M. Khan PLD 1965 SC 106 was quoted with approval to the effect that any concession on a point of law made by the counsel, could not bind a party he represented. We are inclined to hold that factually there was no admission on the part of the petitioner's counsel that respondent No.5's above appeal was within time. The only admission which can be inferred from the above-quoted passage from the order of respondent No.: is as to the exclusion of the period taken in obtaining the copies of the relevant documents. Even otherwise, the alleged concession on the part of the then learned counsel for the petitioner did not absolve respondent No.2 from its statutory duty to examine the question of limitation in proper perspective and to decide the same correctly and not on the basis of any alleged admission in view of the above clear pronouncements of the Honourable Supreme Court in the above case of 1969."
3. Following the dictum laid down by the Hon'ble Supreme Court of Pakistan and Sindh High Court, we proceed to examine if the appellant continues to possess the right of appeal after admitted waiver and preferring of revision application under section 138 of the Income-tax Ordinance, 1979. As already stated the factum of waiver is not disputed, therefore, we will outright start with the proposition as to what is the connotation of waiver and what are its consequences. The term waiver is defined in Black's Law Dictionary as follows:---
"Waiver. The intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, or when one dispenses with the performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something the doing of which or the failure of forbearance to do which is inconsistent with the right, or his intention to rely upon it. The renunciation, repudiation, abandonment, or surrender of some claim, right, privilege or of the opportunity to take advantage of some defect, irregularity, or wrong. A doctrine resting upon an equitable principle, which Courts of law will recognize. Atlas Life Ins. Co. v. Schrimsher, 179 Okl. 643, 66 P. 2d 944, 948.
Waiver is essentially unilateral, resulting as legal consequence from some act or conduct of party against whom it operates, and no act of party in whose favour it is made is necessary to complete it. Coleman Production Credit Ass'n v. Mahan, Tex. Civ. App., 168 S.W. 2d 903, 904. And may be shown by acts and conduct and some times by non-action. Concrete Engineering Co. v. Grande Bldg. Co., 230 MoApp. 443, 86, S.W. 2d 595, 608.
Terms `estoppel' and `waiver' are not synonymous; `waiver' means the voluntary, intentional relinquishment of a known right, and 'estoppel' rests upon principle that, where anyone has done an act, or made a statement, which would be a fraud on his part to controvert or impair, because other party has acted upon it in belief that what was done or said was true, conscience and honest dealing require that he not be permitted to repudiate his act or gainsay his statement. Peloso v. Hartford Fire Ins. Co., 12 NJ. Super. 537, 246 A2d 52, 58."
4. So far the effect of waiver is concerned it is observed on page 330 of the Interpretation of Statutes by Maxwell, 12th Edition that, "full knowledge of the relevant facts is necessary it there is to be a valid waiver, but once a person has waived the benefit of law he cannot recall the concession after it had been acted upon".
5. In Warton's Law Lexicon the waiver has been defined to mean, "the passing by an occasion to enforce a legal right whereby the right to enforce the same is lost".
6. V.V. Chitalay and S. Appurao have quoted various citations of waiver in their Commentary on Indian Evidence Act, Volume 6 and some citations are as follows:---
"(4) A plea of waiver is essentially based on a certain alleged conduct of the party originally having a certain right but having lost the same as a result of that conduct. The conduct, if proved, results in a certain disability, rather a certain deprivation or forfeiture, and it also creates what is known in law as estoppel, dealt with in section 115 of the Evidence Act. There is a tendency to mix up waiver and estoppel as a single idea, although the one has apparently reference to a man's conduct and the other to the legal consequences of that conduct.
A common feature which is characteristic both of waiver and of estoppel certainly is that it should have a reference to the particular party who has pleaded waiver or estoppel. Any conduct not intended to be directed towards a particular individual cannot form the basis of an argument by him that it amounts to waiver of a certain right or to estoppel in respect of the assertion of that right.
(1952) 1952 RD (HC) 36 (36). 1955 NUC (Cal) (C) (Pr. 13) (AIR V 42).
(5) Waiver is the abandonment by conduct of a known right. It is an implied agreement not to exercise legal right.
1943 Cal. 544 (551) (AIR V 30 (DB); 1948 Nag. 70 (71) (AIR V 35 C 26) = (1947) Nag. 576.
(8) If a party deliberately waives a legal right to which he is entitled and no question of contravention of public policy or morality arises, such waiver is operative. That is, if the waiver is supported by an agreement founded on a valuable consideration or is of such a character as to estop the party from insisting on the right claimed to have been relinquished, the party who has waived his right cannot subsequently turn round and claim to enforce the right he has deliberately waived."
7. Hon'ble Mr. Justice Salim Akhtar in the case of Shahriyar Ali Patudi v. Decora Furnishers PLD 1985 Kar. 47 has held as under:---
"The term waiver implies the intentional relinquishment of a known right after knowledge of the facts. It implies the intentional forbearance to enforce right and necessarily, therefore, assumes the existence of an opportunity for choice between the relinquishment and enforcement of right."
8. The above observation has been quoted with approval which was made in the case of Muhammad Ahmed v. Mrs. Qamar Hasan Shah 1980 CLC 664.
9. From the above definitions and findings it can be held that the generally accepted connotation is that to constitute waiver there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or such conduct as warrants an inference of the relinquishment of a known right or privilege. Thus, a person may waive any right or protection provided by any law but once a right of protection has been waived thereafter he cannot raise the issue and cannot be allowed to turn around and assert the same right. In Corpus Juris Secundum it is observed on page 105 Note 32, "that the doctrine of waiver extends to rights and privileges of any character and since the word "waiver" covers every conceivable right, it is a general rule that a person may waive any matter which affects his property, and any alienable right or, privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred by statute or guaranteed by Constitution, provided such rights and privileges rest in the individual, or intended for hissole benefit, do not infringe on the rights of others and further, provided the waiver of the right or privilege is not forbidden by law and does not contravene public policy, and the principle is recognized that everyone has right to waive, and agree to waive, the advantage of law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing of any public right and without detriment to the community at large".
10. Consequent to the above finding it is held that in the appeals before us it is admitted position that the law permits an assessee to waive his right of appeal and invoke the revisional jurisdiction and admittedly the appellant has waived his right of appeal and has invoked the revisional jurisdiction. Thus, in these circumstances the appellant cannot be allowed to turn round and assert his right of appeal. It is not a case of pursuing of remedy in some wrong appellate forum under some misconception of facts or law but it is a case of intentional relinquishment of known right and electing of a particular forum for pursuing the remedy. When the appellant has chosen to pursue a particular remedy provided in law then he should take the proceedings to their logical end and he cannot be allowed to turn round and assert a right which he has already been relinquished by admitted waiver of the right of appeal. Although it is not for us to propose any course of action to the appellant and he is at liberty to pursue his remedy in law as advised but we would like to make an observation that Mr. Zia Rizvi stated that the right course for the Board would have been in forwarding the revision applications to the Income-tax authority empowered to hear the revision applications in respect of the orders passed by A.A.C. before 1-7-1991. From the perusal of letter written by the Board dated 13th July, 1992 we do not find that the Board has rejected the revision applications. The Board has merely informed that it has jurisdiction under section 138 as amended by Finance Act, 1992 to deal with revision applications made against orders of AA.Cs. passed after 1-7-1991 and, therefore, the appellant's case cannot be dealt with as order of AA.C. was passed before 1-7-1991. It is still open to the appellant to apply to the Board for forwarding the revision applications to the authority concerned empowered to hear the revision applications or in the alternative the appellant may prefer fresh revision applications before the competent authority, seeking condonation of delay for pursuing remedy before the wrong forum undermisconception of law. It is for the appellant to adopt the course deemed fit and the observations made by us are only directed to the point that the appeal does not lie to this Tribunal after the right has been admittedly waived add the appellant can pursue remedy in revision only. Mr. Zia Rizvi has stated that he knew the fate of his appeals and, therefore, he will again file petition before the Hon'ble High Court. We would not like to make any observation on this statement of Mr. Zia as it is solely for the appellant and his counsel to pursue any remedy deemed fit by them.
11. Consequent to the findings that the appeals do not lie before this Tribunal the question of condoning the delay does not arise and consequently the application for early hearing of appeal and both the appeals stand dismissed.
M.BA./2245/T Order accordingly.