I.T.A. NO.320/KB OF 1991-92 AND M.A. (RECT) NO-80/KB OF 1995-96 VS I.T.A. NO.320/KB OF 1991-92 AND M.A. (RECT) NO-80/KB OF 1995-96
1997 P T D (Trib.) 879
[Income-tax Appellate Tribunal Pakistan]
Before Muhammad Mujibullah Siddiqui, Chairman, Nasim Sikandar, Judicial Member and S.M. Sibtain, Accountant Member
I.T.A. No. 320/KB of 1991-92 and M.A. (RECT) No. 80/KB of 1995-96 decided on 07/01/1997.
(a) Precedent--
----Principles of consistency and certainty occupy a very prominent position in the law of precedent which has to be adhered to in order to maintain discipline in the administration of justice.
Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296; Murad Ali v. Collector of Central Excise and Land Customs PLD 1963 W.P. (Kar.) 280 and Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 ref.
(b) Precedent---
----Conflict of views by different Benches of the same forum is bound to create confusion and ultimately chaos.
Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 296; Murad Ali v. Collector of Central Excise and Land Customs PLD 1963 W.P. (Kar.) 280 and Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 ref.
(c) Precedent---
---- Decision of a Division Bench is binding on other Division Benches of the same judicial institution and it is absolutely necessary to observe the principle in order to avoid conflicting decisions by the Benches of equal strength which is bound to create complication, confusion and chaos which will result in uncertainty and would be ultimately disastrous to the administration of justice.
Murad Ali v. Collector of Central Excise and Land Customs PLD 1963 Kar. 280; Bashir Ahmed v. The State PLD 1960 Lah. 687; Jamal v. The State PLD 1960 Lah. 1962; Mahadeolal Kanodla v. The Administrator General of West Bengal AIR 1960 SC 936; Jaisri Sahu v. Rajdewan AIR 1962 SC 83 and Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 ref.
(d) Income Tax Ordinance (XXXI of 1979)---
----S.156---Rectification of mistake---Mistake of law---Earlier decision of a Division Bench of Income Tax Appellate Tribunal had been ignored and different view had been taken by Accountant Member sitting in the Division Bench and the third member to whom difference of opinion was referred instead of sending the case to, the Chairman of the Tribunal for constituting a larger Bench---Mistake of law having taken place in the case, Tribunal recalled the order in question and directed that case be heard by a Full Bench.
Sirajul Haque and Arshad Siraj for Appellant
Inayatullah Kashani, D.R. for Respondent.
Date of hearing: 7th January, 1997.
Order on rectification application
By above rectification application the appellant/applicant seeks rectification in the order of this Tribunal, dated 24-12-1992 so as to recall the said order and direct for hearing of the appeal by a Full Bench of this Tribunal.
2 Heard M/s. Sirajul Haque Memon and Arshad Siraj, Advocates for the appellant/applicant and Mr. Inayatullah Kashani, learned representative for the department.
3. Briefly stated the relevant facts giving rise to this rectification application are that the appellant, a private limited company filed return of total income for the assessment year 1990-91 declaring loss of Rs.1,33,76,282 and claimed exemption under clause (119) of the Second Schedule to the Income Tax Ordinance, 1979. The assessing officer granted the exemption but did not determine the quantum of loss for carry forward. The appellant preferred an appeal before the learned C.I.T.(A) who vide order, dated 28-10-1991 rejected the appeal by placing reliance on a judgment of the Indian Supreme Court. The learned C.I.T.(A) further placed reliance on the judgment of this Tribunal in I.T.A. No. 1221/KB of 1980-81, dated 10-9-1984. The learned counsel for the appellant has stated that it was contended before the learned C.I.T.(A) that his predecessor while deciding appeal for the assessment year 1989-90 vide order, dated 21-8-1991 directed the assessing officer to determine the loss available to the appellant after proper examination of books of account by placing reliance on the judgment of Honourable Sindh High Court reported as (1988) PTD 1016 and the judgment of this Tribunal reported as 1989 PTD (Trib.) 1199. However, the learned C.I.T.(A) did not accept the contention. Being aggrieved with the order of learned C.I.T.(A) the appellant preferred second appeal before this Tribunal. The appeal came up for hearing before a Division Bench of this Tribunal on 25-10-1992. It was held by the learned Judicial Member that the point in issue already stood decided by a Single Bench of the Tribunal vide judgment reported as 1989 PTD 1199 (Trib.) and has been confirmed by various Division Benches. He also noted that the issue stood resolved in favour of the appellant by a Division Bench decision in I.T.A. No. 1017/HQ of 1990-91 for the assessment year 1988-89. He, therefore, allowed the appeal and directed the I.T.O. to allow carry forward loss under section 35 of the Ordinance.
4. On the other hand, the learned Accountant Member differed with the view of the learned Judicial Member. He held that the loss which includes depreciation could not be carried forward. Due to difference of opinion the following question was framed and reference was made to the then learned Chairman for referring the case to third member for resolving difference of opinion.
QUESTION
"Whether the assessee being an undertaking enjoying exemption under Income Tax Ordinance, 1979 would be entitled to set off of carried forward loss under section 35 of the Ordinance?"
5. The case was referred to another learned Accountant Member who did not agree with either of the Members sitting in the Division Bench and decided the appeal on an entirely different ground but agreeing in conclusion with the learned Accountant Member. The result was that the appeal stood dismissed.
6. The appellant has filed this application contending that serious mistake of law has taken place by the learned Accountant Member sitting in the Division Bench and by the learned third Member as they refused to follow the Division Bench judgment in I.T.A. No. 1017/HQ of 1990-91 for the assessment year 1988-89 in the case of appellant itself which was binding on them. It is contended that the legal position according to the law of precedent is that if a Division Bench or a Single Member differs with an earlier judgment of a Division Bench all they can do is to request the Chairman to constitute a Larger Bench/Full Bench to resolve the controversy on the difference of opinion. Thus it is contended that an error of law apparent on record has taken place which falls within- the purview of section 156 of the Income Tax Ordinance, 1979 and, therefore, in the interest of justice the order dismissing the appeal may be recalled and the appeal may be directed to be heard by a Full Bench in order to resolve the controversy. In support of his contention Mr. Sirajul Haque has placed reliance on the following judgments:---
(1) The Province of East Pakistan v. Dr. Azizul Islam, PLD 1963 Supreme Court 296.
(2) Muiad Ali v. Collector of Central Excise and Land Customs, PLD 1963 W.P. Karachi 280.
(3) Multiline Associates v. Ardeshir Cowasjee PLD 1995 Supreme Court 423.
7. The learned D.R. has not denied the facts as stated by Mr. Sirajul Haque Memon. We have carefully considered the contentions raised by the learned representative for the parties and have gone through the judgments cited at Bar. We have been observing during the last few years with anxiety that due to lack of assistance and several other reasons the law of precedent has not been followed strictly in the administration of justice. In addition to various other principles the principles of consistency and certainty occupied from prominent position and these principles should always be adhered to in order to maintain, discipline in the administration of justice and maintain discipline in this behalf. Thus, we propose to consider the principles in this behalf as enunciated and affirmed by the superior Courts, in the interest of better administration of justice and to bring certainty in this behalf. It needs no emphasis that the conflict of views by different benches of the same forum is bound to create confusion and ultimately chaos which is not desirable on the face of it. The Honourable Supreme Court of Pakistan in the case of province of East Pakistan v. Dr. Azizul Islam (cited above) held that when there was decision which was a direct authority on a question by High Court another Bench of same strength of the High court if inclined to take a different view they should have referred the matter to a larger bench. Alternatively they could have expressed their doubts regarding the view taken in the precedent case in a Court of co-equal jurisdiction, while yet following that view and left the matter to be raised in appeal before Supreme Court. The point in issue has been considered at length by a Larger Bench of the erstwhile West Pakistan High Court, Karachi Bench in the case of Murad Ali v. Collector of Central Excise and Land Customs (PLD 1963 Karachi 280). The relevant facts were that a writ petition was filed in the Honourable High Court which was initially heard by a Division Bench and the view taken by the Honourable Judges sitting on the Division Bench was in conflict with the view expressed by another Division Bench of the Honourable High Court and, therefore, Honourable Mr. Justice Khamisani proposed to place the matter before the Senior Judge for reference to a Full Bench. It was, however, contended that one Division Bench can disagree with another Division Bench without reference to a Larger Bench on any point of difference between the two Division Benches. The Honourable Mr. Justice Khamisani however did not agree with this view and felt that the decorum and dignity was required that the Division Bench hearing the subsequent writ petition should have all respect for the decision given by the other Division Benches and the respect which is due to a Division Bench demands that a reference be made to a Full Bench. The contention that a Division Bench can disagree with another Division Bench without reference to a Larger Bench was made by placing reliance on the judgment in the case of Bashir Ahmad v. State (PLD (1960) Lahore 687) wherein the following discussion was made:
"(1) The decision of Full Bench of the Court cannot be dissented from by a DivisionBench or a Single Bench,
(2) the decision of a Division Bench of the Court cannot be dissented from by a Single Bench,
(3) the decision of a Division Bench of the Court can be dissented from by another Division Bench or even by the same Bench and may be overruled by a Full Bench but it cannot be dissented from by a Single Bench, and
(4) the decision of a Single Bench can be dissented from by another or the same Single Bench and can be overruled by a Division Bench or a Full Bench."
8. The other judgment cited in this behalf was Jamal v. The State (PLD (1960) Lahore 1192) wherein it was held as under:---
"Chaudhri Muhammad Anwar, Advocate, the learned counsel for the appellant next urged that as Division Bench had taken a certain view in Criminal Appeal No. 767 of 1959, this Division Bench could not take a contrary view and if the view taken in the 1959 case was considered untenable, it was the duty of this Division Bench to refer the case to a larger Bench so that the law may be authoritatively laid down. I am clearly of the view that this contention is without force. Precisely the same question was considered in Bashir Ahmad etc. v. The State PLD 1960 Lah. 687, in which a judgment of Abdul Aziz Khan and A.R. Khan, JJ., with regard to another aspect of section 342 of the Code of Criminal Procedure was considered and in the leading judgment delivered by me I expressed the view, which was concurred in by Sajjad Ahmad, J. that a decision of a Division Bench was not binding on another Division Bench. It is unnecessary to give here elaborate reasons for that view and all that need be said is that it is not obligatory for a Division Bench if it does not agree with the views of another Division Bench to follow the views it does not agree with, and in case it is not prepared to do this, to refer the case to a Full Bench."
9. The Honourable Judges of the High Court held that the view expressed in above decisions was bound to create confusion and particularly when there are two different views taken by two Division Benches and the issue is heard by a Single Bench with the agreement of a Single Bench with the decision of one of the Division Benches would ipso facto result in dissenting from the decision of another Division Bench while both the decisions as per the principles laid down in the above judgments have a binding effect on a Single Bench. However, it cannot be said as to which decision out of the conflicting decisions will have the binding effect. It was further observed that particularly the position of the subordinate judiciary would be very confusing. It was further observed that anomally which it will create will be beyond any remedy. A subordinate Judge may have to sit in judgment on the decisions given by two Division Benches and to decide for himself as to which decision would be acceptable to him. It was further held that the position created by these decisions was likely to be conductive to creating confusion and chaos. It was further noted in the above judgment that as soon as the two conflicting decisions were given a situation arose where a third Division Bench was confronted with the difficulty an the same point of law which was decided in the first two cases. The Division Bench could not defy as to which view would prevail and as such a reference was made to learned Chief Justice to constitute a Full Bench to have a final and authoritative verdict on this point.
10. It was further expressed by the Honourable Judges of the High court that there was no statutory provisions for the proposition that the decision of one Division Bench will be binding on another Division Bench but there were decisions directly or indirectly wherein it has been laid down that the decision of one Division Bench has binding effect on another Division Bench. After an elaborate survey of the case law from Pakistan and Indian jurisdiction the Honourable Judges sitting on the Division Bench made reference to a Larger Bench for decision on three points. Out of three questions referred to the Larger Bench following question only is relevant for our purposes:
"Is the decision given by the one Division Bench binding on another Division Bench and if so to what extent"?
11. The above question was considered by a Larger Bench and Honourable Mr. Justice Waheeduddin Ahmed speaking for the Larger Bench observed as follows:
"Admittedly there is no statutory provision in the law applicable to Pakistan on this point. The answer to the question, therefore, depends on the consideration of judicial propriety and decorum which forms the basis of judicial procedure. Both the counsel for the parties urged before us that the uniform practice in all the High Courts in pre-partition and post-partition India is that if one Division Bench differs from the earlier views on a question of law, a reference is to be made to a Larger Bench. But there is no authoritative decision so far as Pakistan is concerned in this respect. On the contrary in the case of Bashi, Ahmed v. State (PLD 1960 Lah 687) and in the case of Jamil v. State (2) two Division Benches of this Court have observed that the decision of the Division Bench can be dissented from by another Division Bench on the same High Court. In fact, the present trend of decisions show that it has become a common practice in this court that a Division Bench, if it does not agree with the view taken on a point of law in the earlier Division Bench, dissents from it and proceeds to decide the matter on the view formed by them. It is, therefore, quite obvious that there is lot of uncertainty and confusion both in the minds of the subordinate judiciary and litigant public about the doctrine of judicial certainty, which is not at all conducive and proper in the administration of justice in this province."
12. While giving resume of the conflict in the Indian jurisdiction and final decision by the Supreme Court of India in the case of Mahadeolal Kanodla v. The Administrator General of West Bengal AIR (1960) SC 936, the following observations were cited:---
"Before we part with this appeal, however, it is our duty to refer to one incendental matter. We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin's case 58 Cal. W.N. 64, was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench, Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, it self gives effects to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Courts is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring that matter to a larger Bench. In such a case lawyers would not know-how to advise their clients and all Courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.
As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfortunate that the attention of the learned Judges was not drawn in the present case to that rule. But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by Courts in such matters. "
13 Another judgment from Supreme Court of India in Jaisri Sahu v Rajdewan AIR 1962 SC 83 was cited with approval. In this case the Supreme Court of India held as follows:---
"When a Bench of the High Court gives a decision on a question of law, it should, in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is, therefore, desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. When two such conflicting decisions are placed before a later Bench, the correct procedure to follow in such a case would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. "
14. Some decisions from English jurisdiction and Privy Council were also cited and ultimately held that the following principles emerge which can be safely adopted by the High Court.
"(1) That in order to maintain the judicial decorum and propriety the decision of a Division Bench on a question of law should be followed by other Bench. If they differ from it the proper course to adopt would be to refer the question for the decision of a Full Bench.
(2) The decision of one Division Bench on a question of fact is not binding on the other Division Bench.
(3) If the decision of one Division Bench has not come to the notice of the other Division Bench and a different view is taken in the subsequent Division Bench case, when such two conflicting decisions are placed before the Bench, proper procedure to follow in such case would be, for the Bench hearing the case, to refer the matter to a Full Bench in view of the conflicting authorities without deciding the question itself.
In my opinion, if the above-principles are not followed, it is bound to create not only uncertainty but confusion in the minds of the litigant public and subordinate Courts about the judicial decision of this Court. It will also not enhance the prestige of this Court."
15. However, it was observed in the end that the abovementioned principles will not be applicable to per incur am decisions which carry no binding effect. The same principles have been approved by the Honourable Supreme Court of Pakistan in a recent judgment, Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 wherein it has been held as under:---
"In such circumstances, legal position which emerges is that the second Division Bench of the High Court should not have given finding contrary to the findings of the 1st Division Bench of the same Court on the same point and should have adopted the correct method by making a request for constitution of a larger Bench, if a contrary view had to be taken. In support reference can be made to the cases of the Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296) and Sindheswar Ganguly v. State of West Bengal (PLD 1958 SC (Ind.) 337), which is a case of Indian jurisdiction. We, therefore, hold that the earlier judgment of equal Bench in the High Court on the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of a larger Bench should have been made."
16. The above point has been considered by Supreme Court of India in some recent judgments also but we are of the opinion that in view of the availability of judgments by the superior Courts in Pakistan we need not to look for guidance from the judgments of superior Courts in Indian jurisdiction and, therefore, we do not propose to refer the said judgments. The above-discussion leaves no scintilla of doubt that in view of the law as laid down by the superior Courts the decision of a Division Bench is binding on the other Division Benches of the same judicial institution. As already held by the Honourable High Court and Honourable Supreme Court it is absolutely necessary to observe this principle in order to avoid the conflicting decisions by the Benches of equal strength which is bound to create complications, confusion and chaos which will result in uncertainty and would be ultimately disastrous to the administration of justice.
17. Consequent to the above-conclusion we are of the considered opinion that a mistake of law has taken place whereby the earlier decisions of Division Bench of the Tribunal has been ignored and a different view has been taken by the learned Accountant Member sitting in the Division Bench and the learned third Member to whom the difference of opinion was referred. It appears that the learned third Member was not assisted properly on this aspect of the legal decision and consequently a different view was taken whereby the earlier view taken by the Division Bench was dissented and contrary view was taken instead of making reference to the Chairman for constitution of larger Bench. The order of this Tribunal, dated 24-12-1992 is, therefore, hereby recalled. The rectification application is allowed accordingly.
18. The learned representatives for the parties have submitted that in view of the importance of the issue and conflicting views wherein have emerged the appeal may be heard by a Full Bench. We are inclined to agree with the submission of learned representatives for the parties. It is directed that the file be placed before the Chairman for constitution of larger Bench to hear the appeal afresh.
M.B.A./321/Trib.