1994 P T D 309
[Supreme Court (AJ&K)]
Present: Sardar Said Muhammad Khan, C.J. and Basharat Ahmad Shaikh, J
INCOME TAX OFFICER, MIRPUR and 2 others
Versus
Ch. MUHAMMAD BASHIR
Civil Appeal No.81 of 1992, decided on 23/11/1993.
(On appeal from the judgment of the High Court dated 27-5-1992 in Writ Petition No.4 of 1991).
(a) Limitation Act (IX of 1908)---
----S. 12---Time requisite for obtaining a copy has to be excluded---"Time requisite" when stops running.
Provisions of section 12(2) and (3) of the Limitation Act are clear. According to these provisions "time requisite for obtaining a copy" has to be excluded. In the present case the application for obtaining copy was filed on 20th and the copy was made available on 27th. Thus, eight days were spent in taking out the copy, which had to be excluded from 67 days. The calculation came to 59 days. If 27th had been the last' day of limitation then an objection would have been raised that "time requisite" had stopped running when the copy was supplied within office hours and the appeal should have been filed on the same day. However, the situation in the present case was different because one more day was available for filing the petition.
West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCMR 555; Fateh Muhammad v. Malik Qadir Bakhsh 1975 SCMR 157 and Jijibhy N. Surty v. T.S. Chettyar AIR 1928 PC 103 distinguished.
(b) Income Tax Ordinance (XXXIX of 1979)---
----S. 5(1)(c)---Inspector, Income-tax cannot be assigned function of Income -tax Officer.
(c) Income Tax Ordinance (XXXIX of 1979)---
---S. 4---Commissioner of Income-tax has no power to appoint an Income-tax Officer or to authorise an Inspector, Income Tax to perform the functions of the Income Tax Officer.
(d) De facto, doctrine of---
----Application---If any appointment order is found to be defective the acts performed by a functionary are not invalidated---Doctrine of de facto has no application to a person who has not been appointed to a post and starts functioning without any order, valid or invalid ---Coram non judice functions performed by such a person would not qualify for validation under the de facto doctrine.
Federation of Pakistan v Muhammad Khan PLD 1991 SC (A J&K) 33 ref.
(e) Income Tax Ordinance (XXXIX of 1979)---
----Ss. 5(1)(c) & 4---De facto, doctrine of---Application---Where Inspector, Income-tax was only ordered to take over the charge of the post of Income-tax Officer and he was not appointed as Income-tax Officer, and while handing over the charge to the new Income-tax Officer he (the Inspector) signed as Inspector, Income-tax not as Income-tax Officer, de facto doctrine was riot applicable in circumstances.
(f) Writ---
----Petition---Public functionary whose order or action is challenged must be impleaded as a party.
Muhammad Bilal, Advocate for Appellants.
Ch. Muhammad Afzal, Advocate for Respondent.
Dates of hearing: 18th April and 1st November, 1993.
JUDGMENT
BASHARAT AHMAD SHAIKH, J.---Before we advert to the merits of the case we have to deal with a preliminary objection raised by Ch. Muhammad Afzal, the learned counsel for the respondent, that the appeal is barred by time. The judgment in the case was announced on 27th of May, 1992 and the petition for leave to appeal was filed in this Court on 2nd of August, 1992. Section 12 of the Limitation Act provides that the date on which judgment is announced has to be excluded. It means that 67 days were consumed in filing the petition. Application for obtaining copy of the impugned judgment was filed on 20th of June and the copy was prepared and issued on 27th of June. If the day on which the application was filed and the day on which the copy was issued are counted eight days were taken by the copying agency in issuing the certified copy. If eight days are deducted, the petition for leave to appeal was filed in 59 days. However, Ch. Muhammad Afzal contended that the day on which application for obtaining certified copy was filed and the day on which it was issued cannot be deducted. In support of his contention he relied on West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi (1973 SCMR 555). It has been laid down by the Supreme Court of Pakistan that the time requisite for obtaining copies which can be excluded under Section 12 of the Limitation Act is the time which is taken between the date of application and date when copies were ready. In that case the Supreme Court of Pakistan did not hold that the day on which an application for obtaining a certified copy is filed and the day on which certified copy is ready have not to be included in the time requisite for obtaining copies. In that case the question, which was resolved was that copy was ready but the stamps were not supplied by the appellant and thus a delay of two days occurred. It was held that the delay took place by reason of carelessness of the officer about the date on which the copy was to be ready. The learned counsel then relied on Fateh Muhammad v. Malik Qadir Bakhsh (1975 SCMR 157). In this case also the proposition was different. The petition for leave to appeal filed in the Supreme Court of Pakistan was barred by time by 41 days. It was explained by the petitioners that they were not informed of the date when the copy would be ready and prayed that time 'lag between 13th of December 1973 --- when the copy was ready --- and 26th of January, 1974 on which day the petitioners received it may be exempted. This plea was not accepted and it was held that time between the date on which the copy was ready for delivery and the date on which the applicant chooses to take delivery thereof is not a portion of time requisite for obtaining a copy. In both the aforementioned cases it was observed that the time requisite for obtaining copy within the meaning of Section 12 of the Limitation Act means only the interval between the date of application of supply of copy and the date when it is ready for delivery. Jijibhy N. Surty v. T.S. Chettyar (A.I.R. 1928 PC 103) is also not to the point as it deals with the question as to which copy is necessarily to be filed with the appeal so that time spent in obtaining that copy may be deducted.
In our view provisions of section 12(2) and (3) of the Limitation Act are clear. According to these provisions "time requisite for obtaining a copy" has to be excluded. In the present case the application for obtaining copy was filed on 20th and the copy was made available on 27th. Thus, eight days were spent in taking out the copy, which had to be excluded from 67 days. The calculation comes to 59 days. We may however point out that if 27th had been the last day of limitation then an objection would have been raised that "time requisite" had stopped running when the copy was supplied within office hours and the petition for leave to appeal should have been filed on the same day. However, the situation in the present case is different because one more day was available for filing the petition. The objection is, therefore, not valid and is overruled.
Another preliminary objection raised on behalf of the respondent is that the petition for leave to appeal has been filed on behalf of the Income-tax Officer without the signatures of the Income Tax Officer. It is contended that Naseer Ahmed Malik who signed the Vakalatnama was "incorrectly and falsely" shown as Income Tax Officer. This averment was made in the concise statement filed on behalf of the respondent. The appellants have repudiated this assertion by filing a rejoinder. It was also contended in the concise statement that the signatures of Naseer Ahmed Malik were not genuine and the same had been forged and fabricated. To support this assertion four photostat copies (two of them duly certified) were attached with the concise statement. These copies contain signatures of Naseer Ahmad Malik who has signed as Inspector, Income Tax and have been filed to show that the signatures on these undisputed documents were totally different from the signatures on the vakalatnama. These assertions have been repudiated by the appellants.
The question whether the appeal has been competently filed on behalf of the Income Tax Officer assumes added importance due to the important points raised by Ch. Muhammad Afzal in concise statement as well -as during arguments before the Court that the appeal as a whole entails dismissal for the reason that it is only the Income-tax Officer against whom an order has been passed by the High Court and it is only he who could challenge the order of the High Court. It was contended that other appellants, namely, the Inspecting Assistant Commissioner and the Commissioner of Income Tax had no locus standi to file appeal although they had been impleaded as respondents in the High Court.
To resolve the question whether the appeal has competently been filed on behalf of the Income-tax Officer it will be useful to reproduce the objections and the reply. In the concise statement of the respondent preliminary objections (ii) and (iii) were as follows:---
"(ii) That the petition for leave to appeal/resultant appeal on behalf of Appellant No.l has been filed incompetently through Inspector Income-tax (Naseer Ahmad Malik) showing him to be Income Tax Officer, incorrectly and falsely.
(iii) That the Urdu signatures of the Inspector Income Tax (Naseer Ahmed Malik) appended on Vakalatnama are not genuine. These have been forged and fabricated. Following documents manifesting the four specimens of true/genuine Urdu signatures of Naseer Ahmed Malik, Inspector, Income Tax are attached.----"
In the rejoinder the appellants made the following replies in respect of the preliminary objections:---
"(2) That the petition for leave to appeal on behalf of appellant No.1 has been filed competently.
(3) That the power in favour of the counsel for the appellant was signed by an authorized official of the department on behalf of appellant No.l. It was also signed by the other appellants as well. The other allegations are denied being unfounded and misconceived.
The objection raised by the respondent clearly was that Naseer Ahmad Malik had been shown to be the Income Tax Officer incorrectly and falsely but he was only Inspector, Income Tax. The reply given by the appellants, as produced above, is vague. It was not claimed that Naseer Ahmad Malik, who signed the Vakalatnama as Income Tax Officer, was in fact the Income Tax Officer at the relevant time. It was not denied that Naseer Ahmad Malik had been incorrectly and falsely shown to be the Income Tax Officer. In our view it has been tacitly admitted that Naseer Ahmad Malik was not the Income Tax Officer. Since it has been challenged, it was incumbent on the appellants to produce some documents showing that Naseer Ahmad Malik was in fact the Income Tax Officer on 1st of August, 1992 when Vakalatnama was signed by him. Thus, we could have safely concluded that Naseer Ahmad Malik was not the Income Tax Officer and, therefore, the appeal filed on behalf of the Income Tax Officer is not competently filed. However, on 20th of October, 1993 we recorded the following order:---
"In this appeal some preliminary objections have been raised on behalf of the respondent about the maintainability of the appeal. One of the objections is that the petition for leave to appeal on behalf of the Income Tax Officer, appellant No.l, has been filed through Inspector, Income Tax Officer (Naseer Ahmad Malik) showing him to be Income Tax Officer incorrectly and falsely'. The appellants in their rejoinder have met this objection by stating that petition for leave to appeal on behalf of the appellant No.l has been filed competently. No document or material has been placed on the record in support of this assertion by the appellants.
We are of the view that instead of deciding this point on technicalities it would be in the interest of justice if an opportunity is given to the functionaries of the Income Tax Department, who are appellants in the case, to place on record any proof to show that Naseer Ahmad Malik was Income Tax Officer on or about 1st August, 1992 when Vakalatnama in the case was signed by him as Income Tax Officer.
Send a copy of this order to the appellants with the direction that the proof mentioned above may be fled in the office of the Deputy Registrar, Supreme Court Circuit Bench, Mirpur, before 1st of November, 1993. A copy of this order also' be sent to Ch. Muhammad Afzal, the learned counsel for the respondent. The case will come up for further proceedings in light of this order on 1st of November."
According to the aforesaid directions the appellants could filed the necessary proof before the 1st of November, 1993 but no such proof was filed before the Deputy Registrar before the specified date. However, when the case came up for hearing on 1st of November, 1993 Mr. Muhammad Bilal Advocate appeared and placed on record three documents alongwith a covering application. The opportunity given to the Income Tax Department could be availed only before the 1st of November but the appellants failed to take the advantage of that opportunity. Although it was a case of default but we took lenient view of the matter and allowed the documents to be filed.
It has been explained by Mr. Muhammad Bilal in the application submitted by him as well as in his arguments before the Court that the Income Tax Officer Mirpur was transferred and he handed over the charge on 20th of July, 1992 to Naseer Ahmad Malik, Inspector, Income Tax, under the order of the Collector, Excise and Taxation. Photo copy of the order has been filed as Annexure `A'. It is claimed that the said Naseer Ahmad Malik continued as officiating Income Tax Officer till the new incumbent of the post took over charge from him on 2nd of August. The document showing handing over of charge is Annexure B'. Mr. Muhammad Bilal contended that Naseer Ahmad Malik was duly authorised by the Commissioner, Income Tax to hold the charge of Income Tax Officer and was competent to sign the Vakalatnama. The Vakalatnama was signed by Naseer Ahmad Malik on 1st of August. He placed reliance on Section 5 of the Income Tax Ordinance to support the plea that the Commissioner, Income Tax was duly authorised to pass the order mentioned above. The learned counsel referred us to Section 15 of the General Clauses Act in this connection and also cited a judgment of this Court reported as Federation of Pakistan v. Muhammad Khan (PLD 1991 SC (AJ&K) 33) and submitted that even if any defect be found in the appointment of Naseer Ahmad Malik as Income Tax Officer de facto doctrine would be applicable and, notwithstanding the defect in appointment, the acts performed by Naseer Ahmad Malik have to be treated as valid and binding.
On the other hand Ch. Muhammad Afzal, the learned counsel for the respondent, submitted that Section 5 of the Income Tax Ordinance has no relevance and that the appointment of an Income tax Officer can be made by the Central Board of Revenue as is provided in subsection (1) of Section 4 of the Income Tax Ordinance.
The order on which the learned counsel for the appellants has placed reliance (Annexure `A') was sent by fax to Income Tax Officer, Mirpur and is signed by Collector, Excise and Taxation, it carries no date and number. It reads as follows:---
"NO:TAX/ /92 DATED:---
OFFICE OF THE COLLECTOR, EXCISE AND TAXATION,
AZAD JAMMU AND KASHMIR COUNCIL, MUZAFFARABAD, A.K,
To
The Income Tax Officer, Mirpur, A.K.
Subject:---CHARGE REPORT.
Refer to your No.TAX/CE/3141-48/92 dated 8-7-1992. You are advised to please hand over the charge of Income Tax and Excise Circles, Mirpur to Mr. Muhammad Arif Abbassi, Superintendent, Excise and Malik Naseer Ahmad, Inspector respectively forthwith.
Collector, Excise & Taxation
Muzaffarabad, A.K."
This order is not on behalf of the Commissioner, Income Tax but we take judicial notice of the fact that in Azad Jammu acid Kashmir the post of Commissioner, Income Tax is held by the Collector, Excise and Taxation. In view of this order Sardar Muhammad Refique Khan handed over the charge to Naseer Ahmad Malik, Inspector, Taxation on 20th of July, 1992 (Annexure `B') and Naseer Ahmad Malik made over charge to Mr. Muzaffar Ali Bhatti, the newly-posted Income Tax Officer on 2nd of August (Annexure `C'). Section 5 of the Ordinance deals with jurisdiction of the Income Tax Authorities and lays down that the said authorities shall perform such functions as may be assigned to them by different authorities named in that section. The provision relevant to the post of Income Tax Officer is contained in clause (c) of subsection (1) of that section. It is laid down therein that:---
"(c) the Inspecting Assistant Commissioners and the Income Tax Officers shall perform their functions in respect of such persons or classes of persons or such areas as the Commissioners, to whom they are subordinate, may direct; and [the Commissioner may, with the prior approval of the Central Board of Revenue [or, if the Central Board of Revenue so directs, of the Regional Commissioner, J by general or special order in writing direct that the powers conferred on the Income Tax Officer and the Inspecting Assistant Commissioner by or under this Ordinance shall, in respect of all or any proceedings relating to specified cases or classes of cases or specified persons or classes of persons, be exercised by the Inspecting Assistant Commissioner and the Commissioner, respectively, and, for the purposes of any proceedings in respect of such cases or persons references in this Ordinance or in any rules made thereunder to `Income Tax Officer' and `Inspecting Assistant Commissioner' shall be deemed to be references to `Inspecting Assistant Commissioner' and "Commissioner", respectively;"
This provision dearly deals with the jurisdiction of the Income Tax Officers and other Income Tax Authorities and would come into operation only when an Income Tax Authority has been duly appointed and functions have to be allocated. This provision does not lay down that Inspector, Income Tax can be assigned functions of Income Tax Officer as the present case is. On the other hand Section 4, relied upon by Ch. Muhammad Afzal, deals with the appointment of Income Tax Authorities. Section 4(1) is to the following effect:
"4.Appointment of Income Tax Authorities etc, ---(1) The Central Board of Revenue may appoint as many [Regional Commissioners of Income Tax,] Directors of [Survey, Vigilance `Inspection [and Audit], Commissioners of Income Tax, Appellate and Inspecting Assistant Commissioners of Income Tax, Income Tax Officers and other executive or ministerial officers and staff as may be necessary."
It is thus clear that the Commissioner, Income Tax did not have the power to appoint an Income Tax Officer or to authorise an Inspector of Income Tax to perform the functions of the Income Tax Officer. Even otherwise in his order the Collector, Excise and Taxation (Annexure `A') only advised the Income Tax Officer to hand over the charge to the Inspector and did not order that the functions of the Income Tax Officer shall be performed by the Inspector or that he will exercise the powers of Income Tax Officer. It follows that the Inspector was not appointed as Income Tax Officer.
Section 15 of the General Clauses Act does not advance the appellants' case. This provision lays down that an appointment may either be made by name or by virtue of office. This provision has no relevance in the present case because the Inspector, Income Tax was not appointed by name or by designation. In fact, as already seen, the Commissioner had no authority to do so.
Now we turn to Muhammad Khan's case. The aforesaid judgment deals with the de facto doctrine, which is to the effect that if an appointment order is found to be defective the acts performed by a functionary are not invalidated. However, it has ken clearly laid down in the judgment that this doctrine has no application to a person who has not been appointed to a post and starts functioning without any order, valid or invalid. Coram non judice functions performed by such a person would not qualify for validation under the de facto doctrine. We may usefully reproduce paragraph 35 of that judgment:
"35. In the present case when the Revenue Assistant, Kotli performed functions as Collector under the Land Acquisition Act he had not been appointed to perform those functions and in our view coram non judice acts performed by him do not qualify for validation under the de facto doctrine. His actions as Collector cannot be equated with colourable exercise of powers merely because lie holds another appointment under the Government. If such an appointment forms a basis of validation it would lead to total confusion in society. In that case we may have to treat as validly made a detention order under the Safety Act issued by a Revenue Assistant or an order passed by an Additional Custodian in exercise of revisional powers which are vested in the Custodian. The de facto doctrine is clearly inapplicable to such interlopers."
In the present case we have already noticed that the Inspector, Income Tax was only ordered to take over the charge of the pest of Income Tax Officer and he was not appointed as Income Tax Officer. We may also note that while handing over the charge to the new Income Tax Officer on 2nd of August Naseer Ahmad Malik signed as Inspector, Income Tax and not as Income Tax Officer (Annexure `C' refers). The de facto doctrine is, therefore, found to be inapplicable.
The question now is whether we can proceed with the appeal at the instance of the other two appellants, namely, Inspecting Assistant Commissioner, Income Tax and Commissioner, Income Tax. These two officers of the Income Tax Department were impleaded as respondents Nos.2 sad 3 in the writ petition. In the writ petition show-cause notices issued by the Income Tax Officer to the respondent were challenged. The proceedings taken by the said Income Tax Officer were challenged on different grounds. The main prayer in the writ petition was that appropriate writ against show-cause notices issued by the Income Tax Officer may be issued for their quashment. This prayer has been granted by the High Court.
It is well-settled that in a writ petition the public functionary whose order or action is challenged must be impleaded as a party. That is the reason why the Income Tax Officer was impleaded as a party. The show-cause notices issued by the Income Tax Officer have been quashed he is the person aggrieved and it is only on his appeal that this Court can, if a case is made out revive the notices. Since there is no valid appeal on Income Tax Officer's behalf the question of reviving the show-cause notices does not arise. No order or action of the Commissioner of Income Tax has been quashed by the High Court. So far as Inspecting Assistant Commissioner is concerned he gave permission for re-opening the case under Section 65 of the Income Tax Ordinance for one of the years. Even if that permission is found to be valid it will not in itself bring to life the show-cause notices issued by the Income Tax Officer, which have been quashed by the High Court. Thus, it crystallises that the appeal filed by the Inspecting Assistant Commissioner cannot proceed in absence of the necessary party, namely, the Income Tax Officer.
The appeal therefore entails dismissal on this short ground and there is no occasion for examining the merits of the case although we have heard elaborate arguments from the two learned counsel appearing for both the sides.
The appeal is, therefore, dismissed but there would be no order as to costs.
H.B.T./18/S.CA.Appeal dismissed.