CH. IRSHAD AHMAD VIRK VS COMMISSIONER APPEALS INCOME TAX
1996 P T D 279
[Lahore High Court]
Before Ahmad Saeed Awan, J
Ch. IRSHAD AHMAD VIRK
Versus
COMMISSIONER APPEALS INCOME TAX and others
Writ Petition No. 13624 of 1995, decided on 12/11/1995.
Income Tax Ordinance (XXXI of 1979)---
----S. 132(5) & (6) [as inserted by Finance Act (XII of 1991]---Constitution of Pakistan (1973.), Art.199---Constitutional petition---Scope and application of S.132(5)(6), Income Tax Ordinance, 1979---Decision in appeal ---Limitation-- Mandatory precondition prior to the operation of S.132(5), proviso, Income Tax Ordinance, 1979 enumerated---Appeal was neither fixed and heard within the prescribed period of three months and the order had not yet been passed by Commissioner of Income-tax (Appeals) though the period prescribed under S.132(5), Income Tax Ordinance, 1979 had expired---Appellant in compliance to mandatory requirement of S.131(6), Income Tax Ordinance, 1979 had also failed to serve a notice personally on the Commissioner of Income-tax (Appeals) irrespective of the fact that the appeal had been fixed, heard or not-- Contention of appellant that in view of S.132(5), Income Tax Ordinance, 1979, Commissioner of Income-tax (Appeals) having failed to pass order within the prescribed period, appeal had been accepted and the addition made to the declared version stood deleted and notices issued to the appellant for recovery by the Department were illegal, unjust and not sustainable under law was repelled in circumstances.
Section 132 of the Income Tax Ordinance, 1979 was amended by the Finance Act, 1991 and subsections (5) and (6) were inserted; whereby a time limit of three months has been fixed for disposal of appeals; in case no order is made before the expiration of three months from the end of the month in which the appeal is presented; under subsection (5) of section 132, the relief sought through the said appeal shall be deemed to have been given, subsection (6) of section 132 of the Income Tax Ordinance laid down that subsection (5) of section 132 shall not apply unless a notice by the appellant or his representative is served on the person of the Appellate Assistant Commissioner/C.I.T. Appeals not less than thirty days before the expiration of period stating that the order on the appeal has not been made.
The contention that the condition laid down in subsection (6) of section 12 of the Ordinance is not attracted in a case wherein either the appeal has been fixed or heard as it tantamounts to a notice under subsection (6) of section 132 of the Income Tax Ordinance is misconceived and devoid of merits. Subsection (6) of section 132 of the Ordinance provides mandatory pre conditions prior to the operation of proviso of subsection (5) to section 132 of the Ordinance. Following three conditions have been imposed by subsection (6) of section 132 of the Ordinance, firstly, no order under subsection (1) has been made before the expiration of period of three months, secondly, the notice shall be given by the appellant, "notice" means notice in writing providing the date of filing of appeal and date of expiry of period of three months prescribed in subsection (5) of section 132 of the Ordinance and thirdly, the said notice shall be served on the Appellate Additional Commissioner/C.I.T. personally not less than thirty days before the expiration of the period of three months, these conditions are mandatory in nature.
In the present case even the appeal was neither fixed and heard within the prescribed period of three months and the order has yet not been passed by the respondent No. 1, Commissioner of Income-tax (Appeals) though the period prescribed under subsection (5) of section 132 of the Ordinance has been expired while the mandatory provisions of subsection (6) of section 132 of the Income Tax Ordinance have not complied by the petitioner as he failed to serve a notice personally or the Commissioner of Income-tax (Appeals) as prescribed by subsection (6) of section 132 of the Ordinance. It is an obligatory duty of appellant to comply with the mandatory provisions of subsection (6) of section 132 of the Income Tax Ordinance to serve a notice personally on the Commissioner of Income-tax (Appeals) irrespective of the fact whether the appeal has been fixed, heard or not.
Petitioner in person
Shahbaz Butt for the Department.
Date of hearing: 7th November, 1995.
JUDGMENT
AHMAD SAEED AWAN, J.--The petitioner through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks that the notice, dated 10-9-1995 be declared as null and void, of no legal effect and further that respondent No.3 be directed to give appeal effect under the deeming provisions of subsection (5) of section 132 of the Income Tax Ordinance, 1979 to the assessment year 1994-95.
2. Briefly facts of the case are that the petitioner's assessment for the year 1994-95 was made under detailed scrutiny at Rs.85,920 against the declared income of Rs.55,920, the petitioner filed an appeal against the said impugned assessment order before respondent No-1 Commissioner of Income Tax (Appeals) on 12-2-1995; the appeal was fixed and heard on 18-6-1995 and since then no decision on appeal has been made by the respondent No. l Commissioner of income Tax (Appeals) within the prescribed period; hence this petition.
3. The learned counsel who is an advocate in this case/petitioner contends that in view of subsection (5) of section 132 of the Income Tax Ordinance, 1979, the order by respondent No. l has not been passed within the prescribed period, hence -the appeal has- been accepted, and the addition made to the declared version by the respondent No.3 stands deleted, ,the notices issued to the petitioner for recovery by the respondent are illegal, unjust and not sustainable under the law.
4. The learned counsel for the respondents conversely controverted the arguments of learned counsel referring to subsection (6) of section 132 of the Income Tax Ordinance.
5. I have heard the arguments advanced by the learned counsel for both the sides at some length and perused the record with their able assistance.
6. Section 132 of the income Tax Ordinance was amended by the Finance Act, 1991 and subsections (5) and (6) were inserted; whereby a time limit of three months has been fixed for disposal of appeals; in case no order is made before the expiration of three months from the end of the month in which the appeal is presented; under subsection (5) of section 132, the relief sought through the said appeal shall be deemed to have been given; subsection (6) of section 132, of the Income Tax Ordinance laid down that subsection (5) of section 132 shall not apply unless a notice by the appellant or his representative is served on the person of the Appellate Assistant Commissioner/C.I.T./Appeals not less than thirty days before the expiration of period stating that the order on the appeal has not been made.
7. The contention of learned counsel that the condition laid down in subsection (6) of section 132 of the Ordinance is not attracted in a case wherein either the appeal has been fixed or heard as it tantamounts to a notice under subsection (6) of section 132 of the Income Tax Ordinance is misconceived and 1 devoid of merits. Subsection (6) of section 132 of the Ordinance provides mandatory pre-conditions prior to the operation of proviso of subsection (5) to section 132 of the Ordinance. Following three conditions have been imposed by subsection (6) of section 132 of the Ordinance, firstly, no order under subsection (1) has been made before the expiration of period of three months; secondly, the notice shall be given by the appellants; "Notice" means notice in writing providing the date of filing of appeal and date of expiry of period of three months prescribed in subsection (5) of section 132 of the Ordinance and thirdly; the said notice shall be served on the appellant Additional Commissioner/C.I.T. personally not less than thirty days before the expiration of the period of three months; these conditions are mandatory in nature.
8. In case in hand even the appeal was neither fixed and heard within the prescribed period of three months and the order has yet not been passed by the respondent No.1, Commissioner of Income-tax (Appeals) though the period prescribed under subsection (5) of section 132 of the Ordinance has been expired while the mandatory provisions of subsection (6) of section, 132 of the Income Tax Ordinance have not complied by the petitioner as he failed to serve a notice personally on the Commissioner of Income-tax (Appeals) as prescribed by subsection (6) of section 132 of the Ordinance. It is an obligatory duty of appellant to comply with the mandatory provisions of subsection (6) of section 132 of the Income Tax Ordinance to serve a notice personally on the Commissioner of Income Tax (Appeals) irrespective of the fact whether the appeal has been fixed, heard or not.
9. The upshot of the above discussion is that the petition lacks merits and is dismissed accordingly. There shall be no order as to costs.
M.B.A./1-173/T
Petition dismissed.