I.T.AS. NOS.6173/KB AND 6174/KB OF 1991-92, DECIDED ON 25TH OCTOBER, 1994. VS I.T.AS. NOS.6173/KB AND 6174/KB OF 1991-92, DECIDED ON 25TH OCTOBER, 1994.
1995 P T D (Trib.) 329
[Income-tax Appellate Tribunal Pakistan]
Before Muhammad Mujibullah Siddiqui, Chairman
Asad Arif, Accountant Member
I.T.As. Nos.6173/KB and 6174/KB of 1991-92, decided on 25/10/1994.
Income Tax Appellate Tribunal Rules, 1981-----
----Rr. 14 & 10---Appeal to Appellate Tribunal----Authorised Representative of the assessee instead of drafting the grounds of appeal under distinct heads and specifically as required under R.10, Income Tax Appellate Tribunal Rules, 1981 drafted the grounds of appeal in general terms assailing the entire order of Commissioner of Income Tax (Appeals)---Contention of the assessee was that such being a technical mistake on the part of his Authorised Representative, until and unless the additional/amended grounds of appeal were allowed to be filed, assessee would not be able to assail the various findings of Commissioner of Income-tax (Appeals)---Held, ordinarily the application for amended grounds of appeal could be allowed and assessee, with the leave of the Tribunal could urge or be heard in support of any grounds not set forth in the memorandum of appeal---Reasons elaborated.
Record showed that all the grounds sought to be raised by the applications were specifically raised before the C.I.T. (A). However, at the time of filing second appeal before the Tribunal the then A.R. of the appellant instead of setting forth under distinct heads the specific grounds of appeal as required under rule 10 of the Income-tax Appellate Tribunal Rules, 1981 assailed the entire order of A.C I.T.(A) in general terms. Thus, there was sufficient force in the contention that there was a technical error on the part of A.R. in the matter of drafting of the grounds of appeal. No new question of fact or even law was sought to be introduced and, therefore, ordinarily the application for amended grounds of appeal' was to be allowed. The assessee should not be made to suffer on account of a technical fault on the part of A.R. The technicalities were meant to advance the ends of justice and not to throttle the dispensation of justice and, therefore, the application of technicalities should not be extended to the extent whereby the very purpose of the dispensation of justice was thwarted.
The reason being that the nature of proceedings before the Tribunal in the appeal against the main assessment orders are in the nature of quasi judicial civil proceedings. In all the civil proceedings amendments are allowed in the pleadings as well as in the grounds of appeal even up to the level of Supreme Court of Pakistan. The new grounds of appeal are generally allowed if any point of law is involved and no new probe is to be made in the facts. In the Civil Procedure Code there are specific provisions relating to amendments in the pleadings. Even otherwise in exercise of the inherent jurisdiction vested in every judicial authority such amendments can be allowed in the interest of justice keeping in view the principles enunciated in this behalf by the superior Courts. Although there are no specific provisions dealing with the amendment in the grounds of appeal before the Tribunal either in the Income-tax Ordinance or in the Income-tax Appellate Tribunal Rules, 1981 framed under subsection (8) of section 133 of the Income Tax Ordinance, 1979 but there is an indication in rule 14 of the Income-Tax Appellate Tribunal Rules, 1981 that the amendment can be allowed in the grounds set forth in the memo. of appeal.
With the leave of Tribunal appellant can urge or be heard in support of any ground not set forth in Memorandum of Appeal. It- means that with the leave of the Tribunal additional/amended grounds of appeal can be urged by the appellant.
A.K. Shamim for Applicant.
Basharatullah Khan, D.R. for Respondent.
Date of hearing: 25th October, 1994.
ORDER
Heard Mr. A.K. Shamim, learned counsel for the applicant and Mr. Basharatullah Khan, learned representative for the department.
2. By above applications the applicant seeks permission to file additional/amended grounds of appeal. Mr. A.K. Shamim has submitted that at the time of filing first appeal specific grounds were raised assailing the rejection of book result, application of enhanced G.P. rate and additions under various heads in the profit and loss account. However, at the time of filing second appeal before this Tribunal the then authorised Representative who was not advocate drafted the grounds of appeal assailing the impugned finding of learned C.I.T.(A) in general terms. Mr. A.K. Shamim has submitted that since the authorised Representative was not Advocate and it appears that he was not conversant with the Income Tax Appellate Tribunal Rules, therefore, instead of drafting the grounds of appeal under distinct heads and specifically as required under Rule 10 of the Income Tax Appellate Tribunal Rules, 1981 drafted the grounds of appeal in general terms assailing the entire order of learned C.I.T.(A). He has contended that this is a technical mistake on the part of Authorised Representative of appellant and until and unless the additional/amended grounds of appeal are allowed to be filed the applicant would not be able to assail the various findings of learned C.I.T.(A). He has urged that an assessee should not be made to suffer on account of fault on the part of A.R. He has further submitted that no new facts are sought to be introduced with the filing of amended grounds of appeals and, therefore, the application may be allowed. The learned D.R. has opposed the applications contending that the appeal shall be deemed to have been presented on the date when the amended grounds of appeal are filed and thus it would be barred by time.
3. We have carefully considered the contentions raised by the learned representatives for the parties. A perusal of record shows that all the grounds sought to be raised by the above applications were specifically raised before the learned C.I.T.(A); However, at the time of filing second appeal before this Tribunal the then A.R. of the appellant instead of setting forth under distinct heads the specific grounds of appeal as required under rule 10 of the Income-tax Appellate Tribunal Rules, 1981 assailed the entire order of learned A.C. I.T.(A) in general terms. Thus, we find sufficient force in the contention of I MrA.K.Shamim that there is a technical error on the part of A.R in the matter of drafting of the grounds of appeal. We are further inclined to agree with the submission of Mr. A.K. Shamim that no new question of fact or even law is sought to be introduced and, therefore, ordinarily the application for amended grounds of appeal may be allowed. We are further persuaded to agree with the arguments of Mr. A.K. Shamim that the assessee should not be made to suffer on account of a technical fault on the part of A.R. We are of the opinion that the technicalities are meant to advance the ends of justice and not to throttle the dispensation of jus` ice and, therefore, the application of technicalities should not be extended to the extent whereby the very purpose or the dispensation of justice is thwarted. So far the contention of learned D.R. that the appeal shall he deemed to have been presented on the date when the amended grounds of appeal are filed is concerned, we are not persuaded to agree with the submission. The reason being that the nature of proceeding before this Tribunal in the appeals against the main assessment orders are in the nature of quasi-judicial civil proceedings. It is a matter of common knowledge that in all the civil proceedings amendments are allowed in the pleadings as well as in the grounds of appeal even up to the level of Supreme. Court of Pakistan. The new grounds of appeal are generally allowed if any point of law is involved and no new probe is to be made in the facts. In the Civil Procedure Code there are specific provisions relating to amendments in the pleadings. Even otherwise in exercise of the inherent jurisdiction vested v. every judicial authority such amendments can be allowed in the interest of justice keeping in view the principles enunciated in this behalf by the superior Courts. Although there are no specific provisions dealing with the amendment in the grounds of appeal before the Tribunal either in the Income-tax Ordinance or in the Income Tax Appellate Tribunal Rules, 1981 framed under subsection (8) of section 133 of the Income Tax Ordinance, 1979 but there an indication in rule 14 of the Income Tax Appellate Tribunal Rules, 1981 that the amendments can be allowed in the grounds set forth in the memo. of appeal. Rule 14 of the Income-tax Appellate Tribunal Rules, 1981 reads as follows:
"14.Grounds which may be taken in appeal.--The appellant shall not, except by leave of the Tribunal urge or be heard in support of any ground not set forth in the memorandum of appeal, but the Tribunal in deciding the appeal shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule:
Provided that the Tribunal shall not rest its decision on any other ground unless the party who may be affected thereby had a sufficient opportunity of being heard on that ground:
A perusal of the above rules shows that with the leave of Tribunal appellant can urge or be heard in support of any ground not set forth in the memorandum of appeal. It means that with the leave of the Tribunal additional/amended grounds of appeal can be urged by the appellant. In view of the provisions contained in Rule 14 above we are not persuaded to agree with the contention of learned D.R. which is hereby repelled. In the circumstances set forth above the applications are allowed. The appellant is directed to file the amended grounds of appeal in consonance with the application and supply the copy thereof to the learned D.R. before the hearing of appeal which is fixed on 8-i1-1994.
M.BA./69/T.T. Application allowed.