1996 P T D (Trib.) 808
[Income-tax Appellate Tribunal Pakistan]
Before Nasim Sikandar, Judicial Member and Shairq Mehmood, Accountant Member
M.A. No. 346/LB of 1995, decided on 12/03/1996.
(a) Income Tax Ordinance (XXXI of 1979)---
----S. 138---Revision by Commissioner---Petition for revision under 5.138, Income Tax Ordinance, 1979 before any Departmental Authority is not competent when the Revenue is in appeal before the Income Tax Appellate Tribunal.
M/s. Venus Stationary Mart v. Member (Judicial), C.B.R. 1995 PTD 794 ref.
1993 PTD (Trib.) 627; Hindustan Aeronautics Ltd. v. CIT Karnataka (1981) 132 ITR 461 and Muhammad Hanif v. ITO (1973) Tax LR 465 distinguished.
(b) Income Tax Ordinance (XXXI of 1979)---
----Ss.138 & 134---Income Tax Appellate Tribunal Procedure Rules, 1981, R.12---Revisional jurisdiction of a Commissioner or Member, Central Board of Revenue---Purpose, nature and scope elaborated---Choice of assessee between revision under S.138 and appeal under S.134---Dilemma faced by assessee-- Two kinds of waiver---Difficulties confronted by assessee discussed.
Since no order prejudicial to the interest of an assessee can be passed in revision the exercise of sup motu power by a revisional authority is not materially different from the situation when it acts on a motion by an assessee through a revision petition under section 138. The revisional jurisdiction of a Commissioner or Member, C.B.R., therefore, is not exactly comparable to the one exercisable by a District Judge or a High Court as we understand it on civil or criminal sides. Besides other difference, the striking distinction being that a revising authority under the Ordinance predonminantly acts on administrative side rather than being an arbiter between the Revenue and the assessee. Its authority to make a decision is curtailed by the restriction that no order in revision can be passed which is prejudicial to the assessee. This kind of remedy for an assessee has both negative as well as positive implications. Negative in the sense that the revisional authority in any case is a part of the Revenue hierarchy and therefore presumably disposed towards it. It is positive as no order prejudicial to an assessee can be passed in revision. An assessed can file a revision at two different stages of assessment proceedings though he can have this choice only once. First on the passing of an order (generally an assessment order) and secondly after decision in first appeal. The protection of his interest being supreme consideration, the legislature has provided administrative as well as judicial remedies side by side all along till the matter goes to extra departmental judicial forum, the Tribunal. Once an issue reaches there even at the instance of the Revenue, the administrative remedy will have to give way. The department as an appellant has no choice except to come in first appeal before the Tribunal while the assessee has a choice in going either for a second appeal or a revision. This choice is influenced by a number of considerations, one of them being that administrative remedies are usually speedier than judicial remedies. Nevertheless choice of a forum, be it concurrent or alternate, is not an easy task. On first sight it appears quite logical and rational that the elector of a forum should be made bound by his option in order to clothe finality to the proceedings and decisions. Apparently a party cannot be allowed to go forth and back from one forum to another keeping its options open to avail the one that suits its interest best. However the matter of choice between an appeal under section 134 and a revision section 138 of the Ordinance is not that simple because an assessee, may ultimately be left with none of them in view of the implied bars contained in subsection (2)(a) and subsection (2)(b) of section 138 of the Ordinance. This bar operates primarily against the revisional authority to entertain petition. The two restrictions on such authority under section 138(2)(a) and (b) being:
138(0.)(a).----Where an appeal against the order lies to the Appellate (Additional Commissioner) or to the Appellate Tribunal, the time within which such appeal may be made has not expired, or the assessee has not waived his right of appeal, or
(b) the order is pending on appeal before the Appellate (Additional Commissioner) or has been made the .subject of an appeal to the Appellate Tribunal.
Both these restrictions or conditions are quite simple as far the revising authority is concerned. However, the one contained in sub-clause (2)(b) is catchy and uncertain. No difficulty is likely to arise where First Appellate Authority CIT/AAC decides an appeal completely in favour of the assessee or against him. Where an assessee fails totally there is no question of the Revenue going in appeal before the Tribunal and the assessee is free to approach either the Tribunal or seek his remedy before the revisional authority, CIT/Member, C.B.R. The onerous situation necessarily arises only where the First Appellate Authority passes an order whereof both the assessee as well the department feels aggrieved. In cases of partial relief- by the First Appellate Authority or even total or partial remands the situation will remain fluid as both assessee as well as the department may like to question grant or refusal of part of relief or the directed remand. There is the rub. For the assessee a choice for revision will remain uncertain and incomplete till it is certain of the departmental move. The assessee will not ordinarily know it till the departmental appeal is fixed for hearing in the Tribunal. The law that is provisions of both section 134 or 138 do not provide for any safeguard against such an eventuality. The Tribunal through Rule No. 12, the Income Tax Appellate Tribunal, Procedure Rules, 1981 attempted to make up the deficiency. It provides that an appellant before filing of appeal in the Tribunal will send a copy of memo. and grounds of appeal to the respondent by registered post and a certificate to this effect shall be appended with the appeal. In this situation the assessee will have a chance to make a choice between an appeal or a revision. However, Rule 12 of Income Tax Appellate Tribunal Procedure Rules, 1981 has also not taken complete care of the problem. Because in a number of cases intimation by an appellant through registered post may reach the respondent after the prescribed time for filing of appeal has run out. In any of the two situations an assessee may find itself nowhere and its right to assail the first appellate order is lost in the midst of enigmatic drafting of sub -clause (b) of subsection(2) of section 138.
Another difficulty is the waiver of right of appeal as contemplated in sub-clause 2(a) of section 138 of the Ordinance. It may be noted here that the waiver is of two kinds. The first waiver takes place when the assessee approaches a revisional authority within the limitation prescribed for appeal to the Tribunal. The second waiver happens when an assessee approaches the revisional authority after the lapse of the limitation for an appeal and per provisions of section 138 his waiver of right of appeal can be assumed without any express declaration in this behalf. In the present case the. revision filed by assessee on 10-3-1995 was incompetent as the Revenue had already filed an appeal before the Tribunal on 21-1-1995. Had the department acted in accordance with law i.e. Rules of the Tribunal, the assessee still had half a month to decide either to file an appeal under section 134 or to remain silent. Because in that case he would have been alive to the situation that after filing of departmental appeal in the Tribunal he had no choice but either to accept the impugned order or to file an appeal in the Tribunal. Obviously, after intimation from the department that an appeal had been filed, the assessee would not have ventured a useless exercise of filing of revision. The decision of the assessee to approach the revisional authority in absence of statutory intimation of filing of appeal by the Revenue cannot be taken as conscious waiver of right of appeal
1993 PTD (Trib.) 627; Messrs Venus Stationery Mart v. Member (Judicial), C.B.R. 1995 PTD 794; Hindustan Aeronautics Ltd. v. C.I.T. Karnataka (1981) 132 ITR 461; Muhammad Hanif v. I.T.O., (1973) Tax L.R. 465; Maxwell on interpretation of Statutes, 12th Edn., p.320 and Black's Law Dictionary ref.
(c) Income Tax Ordinance (XXXI of 1979)---
----Ss. 138 & 134---Income Tax Appellate Tribunal Procedure Rules, 1981, R.12---Revision petition before Member (Judicial), Central Board of Revenue by assessee---Appeal to Appellate Tribunal by department---Effect---Appeal filed by assessee before Tribunal ---Limitation---Delay---Condonation whether right of appeal before Tribunal was waived by assessee when he filed revision under S.138---Qualifications and essential of such waiver---Appellate order was communicated to the assessee on 14-12-1994 whereupon instead of filing further appeal before the income Tax Appellate Tribunal he approached Member (Judicial), C.B.R. under S.138, Income Tax Ordinance, 1979 on 10-3-1995 by way of revision petition ---Assessee, on the first day of hearing of the revision petition i.e. 16-4-1995 was informed that the revision was not competent in view of the fact that the department had already filed an appeal before the Income Tax Appellate Tribunal on 29-1-1995---Assessee, however, in the meanwhile even before the receipt of the information from C.B.R. had instituted further appeal before the Tribunal on 27-4-1995---Prescribed limitation of 60 days for filing appeal under S.134, Income Tax Ordinance, 1979 having expired on 12-2-1995 prayer for condonation of delay for filing appeal to Appellate Tribunal was made by assessee---Validity---Held, there was no complete waiver of right of appeal by the assessee---Assessee' s right of selection of forum was denied in view of failure of the Revenue to intimate the factum of filing of appeal before the Appellate Tribunal---If the revenue had not filed an appeal, the selection of forum of appeal was final---Prayer for condonation by assessee was neither contumacious nor the assessee after being informed of the filing of appeal by the Revenue, approached the Income Tax Appellate Tribunal with any mentionable delay---Filing of appeal by the Revenue without intimation to the assessee through registered post, was a sufficient cause which prevented the assessee from presenting the appeal within the prescribed time---Delay of 75 days was condoned by the Income Tax Appellate Tribunal in circumstances.
Waiver of right of appeal, is always qualified by a reasonable expectation that the Revenue is not a probable appellant before the Tribunal. Motives cannot be attributed to parties to the proceedings in going for a particular forum when choice is legally permissible. Factually, however, the Revenue has been allowed an edge to knock out the assessee by simply filing an appeal in the Tribunal even after having a notice of filing of revision. The purpose of both the provisions, sub-clauses (a) and (b) of section 138(2) was nothing but to avoid simultaneous proceedings in appeal and revision. These have, however, unwittingly also gone to an undue disadvantage to the assessee in the present kind of situation.
The bar against entertainment of a revision as contained in sub- clause (b) of section 138(2) is clear qualification to the required waiver of the right of appeal as contemplated in sub-clause (a) of this section. An assessee opting to file a revision under section 138 cannot be said to have consciously waived its right of appeal where the department has filed an appeal without intimation to the assessee. Because in that case, the right of appeal as well as that of revision will be lost and denied to the assessee by reason of an act or omission on the part of the adversary. This would not be fair. A right of appeal cannot be made subservient to the will of the opposite-party or opponent upon doing or refraining from doing of an act by the adversary. In cases where alternate remedies are available or a party has an option to approach anyone of the two forums of alternate, jurisdiction, the option exercised cannot be frustrated only for the reason that the respondent had already approached the other forum. To shut out a party at the thresh-hold of either forum is negation of justice. Choice of forum in such-like situations would be as much a vested right as that of appeal or revision itself. The scheme of subsection (2)(b) above may in the final analysis result in complete denial of choice or forum to the assessee where the opponent Revenue has already approached this Tribunal. Its practical significance remains that an assessee finds the doors of the revisional authority closed on its face when the time for filing of appeal before the Tribunal has already gone. In such situation adopting a rigid or pedantic approach towards the assessee would not serve any legitimate purpose. Subsection (4) of section 134 allows a discretion to the Tribunal to admit an appeal after expiry of the stipulated period subject to its satisfaction that the appellant was prevented by sufficient cause from presenting it within the prescribed period. And, an assessee in the conditions and circumstances described above could not have a better case for invocation of the discretion. In the present case it did not matter much if the cause preventing the assessee from presenting the appeal within time arose or accrued when the prescribed time had already gone. What considerations and reasons had been weighing with the assessee during the period of limitation could not be judged at a later stage. In fact, the mental condition of an individual cannot be ruled upon after the same has ceased to exist and if continuous, the intervening changes and their reasons are not matured into physical actions. All the more so when the choice is totally personal and has no motive or intention for an injury to others. The principle that a prayer for condonation may not be denied if it is not contumacious, therefore, applies in such cases with full force.
On appeal before a competent forum, generally whole of the case is thrown open. Where one party is already in appeal and an order has been put to the scrutiny of the appellate forum, other parties to such order should not ordinarily be denied an audience. The prayer for condonation in such situation, therefore, should be seen all the more objectively.
The bars contained in section 138(2) of the Ordinance, operate primarily against grant of relief and therefore, only restrain the authority from exercising its revisional jurisdiction. The waiver of right of appeal by an assessee in both of the situations will not be effective if, the choice of forum has been frustrated by filing of departmental appeal. Waiver in any of these conditions would be without availability and knowledge of the most material fact viz. intention and actual filing of appeal by the department.
In the circumstances there was no complete waiver of right of appeal by the assessee. Its selection of forum was denied in view of failure of the Revenue to intimate the factum of filing of appeal before the Tribunal. If the Revenue had not filed an appeal, the election of forum of appeal was final.
The prayer for condonation is neither contumacious nor the assessee being informed of the filing of appeal by the Revenue, approached the Tribunal with any mentionable delay. In fact the appeal was filed before the revisional authority confirmed non-maintainability of petition through the letter. The filing of appeal by the Revenue without intimation to the assessee through registered post is a sufficient cause which prevented the assessee from presenting the appeal within the prescribed time. The delay of 75 days accordingly was condoned.
1995 PTD 1053; Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785; Saira Hashim v. Mian Shamsul Haq and 11 others 1995 SCMR 1081; Garikpati Veeraya v. N. Subbiah PLD 1957 SC (Ind.) 448; F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 and 1993 PTD (Trib.) 627 ref.
Malik Nawaz and Farrukh Naeem, I.T.P. for Applicant
Nemo for Respondent.
Date of hearing: 7th March, 1996.
ORDER
This application for condonation of delay in filing of appeal has been moved by a private limited company incorporated on 22nd day of April, 1990. Since the weaving factory owned and managed by it had not yet gone into production by that time "Nil" income was declared in the assessment year 1991-92. The assessing officer, however, framed assessment at Rs.21,15,000 by resort to the provisions of section 13(l)(d) of the Income Tax Ordinance. The assessee had disclosed purchase of 44 Kanals and 10 Marlas open land for a consideration of Rs.10,00,000 which was disbelieved by the assessing officer. He adopted his own value of the site at 31,15,000 and the difference was deemed income under the above said provisions a: the Ordinance. The first appeal before C.I.T. (Appeals), Zone I, Lahore succeeded partly on 21-11-1994 when estimated price per Kanal at Rs.70,000 was reduced to Rs.50,000. The appellate order was communicated to the assessee on 14-12-1994. Thereupon, instead of filing further appeal in this Tribunal the assessee approached Member (Judicial), C.B.R., under section 138 of the Ordinance on 10-3-1995 by way of a revision petition. According to the assessee on the first date of hearing before the revisional authority on 16-4-1995, it was informed that the revision was not competent in view of the fact that the department had already filed an appeal before the Tribunal on 29-1-1995 against partial reduction in the estimated value of the land in question. The in competency of revision application was also confirmed in writing by the office of the Member (Judicial), C.B.R. through a letter dated 4-5-1995. In this letter it was said:
"I am directed to state that vide provisions of clause (b) of subsection (2) of section 138, an order which has been made the subject of an appeal before the Appellate Tribunal cannot be revised under subsection (1) of section 138. In your case since the Income Tax Department has filed an appeal before the Income Tax Appellate Tribunal against the order of the Commissioner of Income-tax/Wealth Tax (Appeals), Appellate Additional Commissioner of Income tax/Wealth Tax on 29-1-1995, your revision application(s) cannot be entertained by the Member (Judicial-Income Tax)."
However, the assessee had in the meanwhile even before receipt of this letter instituted further appeal in this Tribunal on 27-4-1995. Since the prescribed limitation of 60 days under section 134(3) of the Ordinance had lapsed on 12-2-1995, a prayer has been made for condonation of delay of two and a half months or seventy-five days in all.,
2.None has appeared for a Revenue to oppose this application in spite of proper service.
3. In support of the submissions and the prayer made in this application Malik Nawaz, learned counsel for the assessee contends that no notice whatsoever of filing of appeal by the department on 29-1-1995 was ever served upon the assessee, that the department was obliged under Rule 12 of the I.T.A.T. Rules, 1981 to send an intimation through registered post at the time of filing, of appeal in the Tribunal. Further submits that the department disregarded RCIT, Central Region, Circular Letter No.RCIT/JI/165/87-88/2216 dated October 6, 1987 wherein it has been provided that an assessee must immediately be informed where an appeal is filed by the Commissioner to the ITAT against an order of the CIT/AAC.
4.According to the learned counsel the provisions of section 138 have purposely been couched by the Legislature in a manner that this Tribunal is allowed a precedence in the sense that once an issue has been submitted for its authoritative decision, no departmental authority should lay its hand upon the same issue. Also that the bar against entertainment of revisions inbuilt in section 138 is meaningful to. avoid confusion in administration of justice in income-tax matters as it prevents dublicity /ambiguity or inconsistency in handling of the same issue by departmental authorities and the extra departmental judicial forum viz. the Tribunal. The case of the assessee is explained by submitting that after the decision in first appeal the assessee had two options, either to go in second appeal before the Tribunal or to file a revision. According to the learned counsel the assessee having a vested right of an appeal as well as revision went for the second option by filing a revision before Member, C.B.R. However, this choice of forum had already been nullified by filing of departmental appeal on 29-1-1995 without complying with the statutory requirements of simultaneous intimation to the assessee through a registered post. It is submitted had the assessee been served with the notice as required under Rule 12 of the ITAT Rules, 1981, its decision qua choice of forum would certainly have been different. In this regard, it is repeated that no notice under Rule 12 of the Income Tax Appellate Rules, 1981 was ever received by registered post and the certificate attached by the department with the appeal memo also does not mention sending of the notice through registered post as required under the said Rules. The photo copy of peon book alleging service of memo. of appeal on the assessee is denied on the ground that the receipt does not bear authorised signature or stamp of the assessee-company. Learned counsel claims that in such situation, the assessee can never be said to have waived its right of appeal because waiver can only be presumed when full facts are before the party against which the waiver is pleaded.
5. The ratio in the reported decision of this Tribunal cited as 1993 PTD (Trib.) 627 is distinguished on the ground that in that case the assessee had admittedly waived his right of appeal while in the case in hand the assessee never admitted so expressly and the waiver inbuilt in section 138 could not be set up against the assessee in view of lack of availability of true facts i.e. filing of appeal by the department. Also that the assessee in this case has been deprived of both the remedies of appeal as well as revision without any fault on its part.
6. That a revision petition under section 138 before any departmental authority is not competent when the Revenue is in appeal before the Tribunal is established beyond doubt. In Messrs Venus Stationery Mart v. Member (Judicial), C.B.R. 1995 PTD 794 Ahmad Saeed Awan, J. in an exactly similar situation rejected the plea of the assessee for a direction to the respondent Member (Judicial), C.B.R. to entertain and adjudicate the revision petition filed before it. His Lordship noted the effect of the provisions of Indian Income Tax Act, 1961, subsection (4)(c) of section 264 when read with a Circular issued by the Board of Direct Taxes. Therefore, the cases relied upon by the assessee re: Hindustan Aeronautics Ltd. v. CIT, Karnataka (1981) 132 ITR 461 and Muhammad Hanif v. ITO (1973) Tax LR 465 were distinguished. In the first case a revision before the Commissioner was found competent in the light of a circular letter in spite of pendency of a departmental appeal in the Tribunal. In the second case the Kerala High Court examined the legal advice rendered by Ministry of Law on the above-noted provisions of the Act. Learned Judge further observed that in India this issue was still being debated. However, as far the Income Tax Ordinance, 1979, no ambiguity was found in the proposition.
7. An assessee as well as the department have a right of appeal before the Tribunal under section 134 of the Income Tax Ordinance. The provisions of section 138 also give the assessee a right to have an issue looked into by higher departmental forum against an assessment order and also against the order of first appellate authority. The assessee may file a revision after an assessment has been made or a decision on his first appeal has been announced while the Commissioner cannot suo motu to see that an assessee have had a fair deal. The conditions being that "an order" has been passed by an "authority" subordinate to him.
8. Since no order prejudicial to the interest of an assessee can be passed in revision the exercise of suo motu power by a revisional authority is not materially different from the situation when it acts on a motion by an assessee through a revision petition under section 138. The revisional jurisdiction of a Commissioner or Member, C.B.R. therefore is not exactly comparable to the one exercisable by a District Judge or a High Court as we understand it on civil or criminal sides. Besides other differences the striking distinction being that a revising authority under the Ordinance predominantly acts on administrative side rather than being an arbitrator between the Revenue and the assessee. Its authority to make a decision is curtailed by the restriction that no order in revision can be passed which is prejudicial to the assessee. This kind of remedy for an assessee has both negative as well as positive implications. Negative in the sense that the revisional authority in any case is a part of the Revenue hierarchy and therefore presumably disposed towards it. It is positive as no order prejudicial to an assessee can be passed in revision. An assessee, can file a revision at two different stages of assessment proceedings though he can have this choice only once. First on the passing of an order (generally an assessment order) and secondly after decision in first appeal. The protection of his interest being supreme consideration, the legislature has provided administrative as well as judicial remedies side by side all along till the matter goes to extra departmental judicial forum, the Tribunal. Once an issue reaches there even at the instance of the Revenue, the administrative remedy will have to give way. As stated above, the department as an appellant has no choice except to come in first appeal before the Tribunal while the assessee has a choice in going either for a second appeal or a revision. This choice is influenced by a number of considerations, one of them being that administrative remedies are usually speedier than judicial remedies. Nevertheless choice of a forum, be it concurrent or alternate, is not an easy task. On first sight it appears quite logical and rational that the elector of a forum should be made bound by his option in order to clothe finality to the proceedings and decisions. Apparently a party cannot be allowed to go forth and back from one forum to another keeping its options open to avail the one that suits its interest best. However, the matter of choice between an appeal under section 134 and a revision under section 138 of the Ordinance is not that simple because an assessee, and the most relevant example is before us, may ultimately be left with none of them in view of the implied bars contained in subsection (2)(a) and subsection (2)(b) of section 138 of the Ordinance. This bar it may be understood clearly, operates primarily against the revisional authority to entertain petition. The two restrictions on such authority under section 138(2)(a) and (b) being:
"138(2)(a).--Where an appeal against the order lies to the Appellate(Additional Commissioner) or to the Appellate Tribunal, the time within which such appeal may be made has not expired, or the assessee has not waived his right of appeal, or
(b) the order is pending on appeal before the Appellate (Additional Commissioner) or has been made the subject of an appeal to the Appellate Tribunal.
9. Both these restrictions or conditions are quite simple as far the revising authority is concerned. However, the one contained in sub-clause (2)(b) above is catchy and uncertain. No difficulty is likely to arise where First Appellate Authority CIT/AAC decides an appeal completely in favour of the assessee of against him. Where an assessee fails totally there is no question of the Revenue going in appeal before the Tribunal and the assessee is free to approach either the Tribunal or seek his remedy before the revisional authority, CIT/Member, C. B. R. The onerous situation necessarily arises only where the First Appellate Authority passes an order whereof both the assessee as well the department fee: aggrieved. In cases of partial relief by the First Appellate Authority or even total or partial remands the situation will remain fluid as both assessee as well as the department may like to question grant or refusal of part of relief or the directed remand. There is the rub. For the assessee a choice for revision will remain uncertain and incomplete till it is certain of the departmental move. The assesses will not ordinarily know it till the departmental appeal is fixed for hearing in the Tribunal. The law provisions of both sections 134 or 138 do not provide for any safeguard against such an eventuality. The Tribunal through Rule No. 12, o its rule framed in 1981 attempted to make up the deficiency. It provides that a appellant before filing of appeal in the Tribunal will send a copy of memo an grounds of appeal to the respondent by registered post and a certificate to this effect shall be appended with the appeal. In this situation, the assessee will have a chance to make a choice between an appeal or a revision. However, the above Rule 12 of Income Tax Appellate Tribunal Procedure Rules, 1981 has also no taken complete care of the problem. Because in a number of cases intimation by an appellant through registered post may reach the respondent after the prescribed time for filing of appeal has run out. In any of the two situations an assessee like the one before us may find itself nowhere and its right to assail the first appellate order is lost in the midst of enigmatic drafting of sub-clause (b) of subsection (2) of section 138.
10. Another difficulty that we encounter is the waiver of right of appeal as contemplated in sub-clause (2)(a) of section 138 of the Ordinance. It may be noted here that the waiver is of two kinds. The first waiver takes. place when the assessee approaches a revisional authority within the limitation prescribed for appeal to the Tribunal. The second waiver happens when an assessee approaches the revisional authority after the lapse of the limitation for an appeal and per provisions of section 138 his waiver of right of appeal can be assumed without any express declaration in this behalf. 1n the case before us the revision filed by the assessee on 10-3-1995 was incompetent as the Revenue had already filed an appeal before the Tribunal on 21-1-1995. Had the department acted in accordance with law i.e. Rules of this Tribunal, the assessee still had half a month to decide either to file an appeal under section 134 or to remain silent. Because in that case he would have been alive that after filing of departmental appeal in the Tribunal he had no choice but either to accept the impugned order or to file an appeal in the Tribunal. Obviously, after intimation from the department that an appeal had been filed, the assessee would not have ventured a useless exercise of filing of revision. The decision of the assessee to approach the revisional authority in absence of statutory intimation of filing of appeal by the Revenue cannot be taken as conscious waiver of right of appeal. In Maxwell on Interpretation of Statutes, 12th Edition on page 320 it is remarked "full knowledge of the relevant facts is necessary if there is to be a valid waiver". In Black's Law Dictionary waiver has been defined 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, or when one dispenses with 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."
The stress on intention and voluntary relinquishment or free choice in the above definition needs to be noted. An intention in the kind of matters before us, waiver of right of appeal, is always qualified by a reasonable expectation that the Revenue is not a probable appellant before the Tribunal. Motives cannot be attributed to parties to the proceedings in going for a particular forum when choice is legally permissible. Factually, however, the Revenue has been allowed an edge to knock out the assessee by simply filing an appeal in the Tribunal even after having a notice of filing of revision. The purpose of both the provisions, sub-clauses (a) and (b) of section 138(2) was nothing but to avoid simultaneous proceedings in appeal and revision. These have, however, unwittingly also gone to an undue disadvantage to the assessee in the- present kind-of situation before us.
11. The bar against entertainment of a revision as contained in sub -clause (b) of section 138(2) is clear qualification to the required waiver of the right of appeal as contemplated in sub-clause (a) of this section. An assessee opting to file a revision under section 138 cannot be said to have consciously waived its right of appeal where the department has filed an appeal without intimation to the assessee. Because in that case, as rightly pointed by the learned counsel for the assessee, the right of appeal as well as that of revision will be lost and denied to the assessee by reason of an act or omission on the part of the adversary. This would not be fair. A right of appeal cannot be made subservient to the will of the opposite-party or opponent upon doing or refraining from doing of an act by the adversary. In cases where alternate remedies are available or a party has an option to approach anyone of the two forums of alternate, jurisdiction, the option exercised cannot be frustrated only for the reason that the respondent had already approached the other forum. To shut out a party at the thresh-hold of either forum is negation of justice. Choice of forum in such-like situation would be as much a vested right as that of appeal or revision itself. The scheme of subsection (2)(b) above may in the final analysis result in complete denial of choice of forum to the assessee where the opponent Revenue ha already approached this Tribunal. Its practical significance remains that at assessee finds the doors of the revisional authority closed on its face when the time for filing of appeal before the Tribunal has already gone. In such situation adopting a rigid or pedantic approach towards the assessee would not serve any legitimate purpose. Subsection (4) of section 134 allows a discretion to this Tribunal to admit an appeal after expiry of the stipulated period subject to it satisfaction that the appellant was prevented by sufficient cause from presenting it within the stipulated prescribed period. And, an assessee in the conditions and circumstances described above cannot have a better case for invocation of the discretion. In the facts before us it does not matter much if the cause preventing, the assessee from presenting the appeal within time arose or accrued when the prescribed time had already gone. What considerations and reasons had bee weighing with the assessee during the period of limitation could not be judged a later stage. In fact the mental condition of an individual cannot be ruled upto after the same has ceased to exist and if continuous, the intervening changes an their reasons are not matured into physical actions. All the more so when the choice is totally personal and has no motive or intention for an injury to other; The principle that a prayer for condonation may not be denied if it is not contumacious as recently elaborated by this Tribunal in 1995 PTD 1053, therefore, applies in such cases with full force.
12. On appeal before a competent forum, generally whole of the case is thrown open. To us it appears that where one party is already in appeal and an order has been put to the scrutiny of the appellate forum, other parties to such order should not ordinarily be denied an audience. The prayer for condonation in such situation, therefore, should be seen all the more objectively. At least two recent decisions of the Supreme Court opitomize this trend. In re: Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785, a Shariat Appellate Bench of the Supreme Court allowed condonation of 13 days in filing of appeal by an absent accused. In that common appeal their lordships examined the case of the absent appellant on merits as the judgment agitated against was already a subject-matter of challenge by two other accused. In the other case Saira Hashim v. Mian Shamsul Haq and 11 others 1995 SCMR 1081 the petition for leave to appeal the Supreme Court was barred by 213 days. Before the Court it was contended that leave had already been granted in a connected petition against the judgment which was being impugned therein. His lordship Zia Mehmood Mirza, J. speaking for the Bench granted the prayer for leave though the question of limitation was kept open to be considered at the time of final hearing.
13. The proposition that a right of appeal is substantive right and cannot be taken away except by express provisions or by necessary implication is undisputed. It was affirmed in re: Garikpati Veeraya v. N. Subbiah Chaudhry PLD 1957 SC (Ind.) 448 and approved by the Supreme Court of Pakistan in re: F.A. Khan v. The Government of Pakistan PLD 1964 SC 520. In both of the said provisions of the Ordinance providing for appeal to the Tribunal and a revision before a departmental authority absolute taking away of right of appeal of an assessee in the situation before us is neither express nor it can reasonably be inferred. The bars contained in section 138(2) of the Ordinance, as observed above, operate primarily against grant of relief and therefore, only restrain the authority from exercising its revisional jurisdiction. The waiver of right of appeal by an assessee in both of the situations discussed above will not be effective if, as remarked earlier, the choice of forum has been frustrated by filing of departmental appeal. Waiver in any of these conditions would be without availability and knowledge of the most material fact viz. intention and actual filing of appeal by the department.
14. In 1993 PTD (Trib.) 627 a Division Bench of this Tribunal refused condonation of 134 days in filing of an appeal in a different situation. The facts in that case are not comparable inasmuch as the assessee had admittedly waived his right of appeal and had approached the revisional authority for relief which was refused adjudication on the ground that the matter was within the competence of a lower authority due to change in law. The department was not in cross-appeal in that case nor the revisional authority refused entertainment of the petition on this ground. It may also be recalled that the assessee instead of approaching the lower authority as advised by Member, C.B.R. turned round and filed an appeal before the Tribunal. The denial of prayer for condonation by the Tribunal was justified because the revision filed by the assessee was not frustrated by an. act of the respondent-department as in the case before us. This distinction drawn by the learned counsel for the assessee therefore, bears merit.
14-A. In the circumstances we have concluded that in this case there was no complete waiver of right of appeal by the assessee. Its selection of forum was denied in view of failure of the Revenue to intimate the factum of filing of appeal before the Tribunal. If the Revenue had not filed an appeal, the election of forum of appeal was final and the ratio of the said reported case 1993 PTD (Trib.) 627 would have been applicable.
15. The prayer for condonation in view of the above discussion is neither contumacious nor the assessee being informed of the filing of appeal by the Revenue, approached this Tribunal with any mentionable delay. In fact the appeal was filed before the revisional authority confirmed non-maintainability of petition through the aforesaid letter. The filing of appeal by the Revenue without intimation to the assessee through registered post is a sufficient cause which prevented the assessee from presenting the appeal within the prescribed time. The delay of 75 days accordingly is condoned.
16.The appeal may be listed for disposal on merits per roster arrangement.
M.B.A./208/TribDelay condoned: