(a) Income Tax Ordinance (XXXI of 1979)---

----S.156---Income Tax Appellate Tribunal Rules, 1981, R.15---Rectification of mistake---Dismissal of appeal by Tribunal---Grounds of appeal were in the narrative form and contrary to R.15 of the Income Tax Appellate Tribunal Rules, 1981---Procedural and technical lapses---Application for rectification of order was accepted and appeal was restored by Tribunal for hearing with the remarks that technical faults should not be allowed to throttle the dispensation of justice and Income Tax Appellate Tribunal Rules being directory, assessee must be given a notice to amend the memo, of appeal before taking the extreme action of dismissal of appeal.

1987 PTD (Trib.) 71; 1995 PTD (Trib.) 329; Noor Hussain Natha v. Controller of Estate Duty Karachi (1967) 15 Tax 117 and 1997 PTD (Trib.) 879 ref.

(b) Income Tax Appellate Tribunal Rules 1981---

----Income Tax Appellate Tribunal Rules, are directory and not mandatory.

1991 PTD (Trib.) 583 = 1991 PTD 863; 1987 PTD (Trib.) 71; 1995 PTD (Trib.) 329; Noor Hussain Natha v. Controller of Estate Duty, Karachi (1967) 15 Tax 117 and 1997 PTD (Trib.) 879 ref.

Ahmad Mushir Ali Qadri, F.C.A. for Appellant.

Mrs. Fiza Muzaffer, D. R. for Respondent.

ORDER

1. Before us is a miscellaneous application by an individual also appeal in I.T.A. No.5450/LB of 1991-92 (Assessment year 1990-91) was rejected on 21-4-1996. The reason for rejection in para. 3 of the order reads:--

"The grounds taken in the grounds of the appeal are all in the narrative. The correct issues have not been brought out clearly in the grounds of appeal. However, such grounds being contrary to the Income Tax Appellate Tribunal Rules, 1981 cannot be allowed to be entertained."

2. Parties have been heard. Learned A.R. for the assessee in terms of the content of the petition states that the dismissal of appeal for the aforesaid reasons was totally illegal inasmuch as Rule 15 of the Income Tax Appellate Tribunal Rules also casts upon the office of the Tribunal a duty to return the memorandum of appeal where it is not filed in the specified manner. According to the learned A.R. the rejection or dismissal of an appeal could happen only after an assessee had failed to represent the memo after removing the defects pointed out by the Registrar. Further claims that even at the time of hearing of the appeal the learned Division Bench did not allow the assessee an opportunity to send the memo of appeal to bring it in line with the requirements of the rules. It is stated that rejection of appeal on technical ground has resulted in confirmation of an illegal addition of Rs.409.850 earlier made by the assessing officer under section 13(1)(d) of the Income Tax Ordinance and maintained by the first appellate authority.

3. It support of the submissions for recalling of the impugned order reliance is placed upon 1987 PTD (Trib.) 71 in which a Division Bench of this Tribunal while interpreting the provision of section 134 of the Ordinance found that an appeal could not fail because of procedural or technical lapses. Another order of the Tribunal reported as 1995 PTD (Trib) 329 is cited wherein a Division Bench at Karachi found -that technical fault on the part of an A.R. should not be allowed to throttle the dispensation of justice. Reliance is also placed upon a judgment of the Karachi High Court in re. Noor Hussain Natha v. Controller of Estate Duty Karachi cited as (1967) 15 Tax I 17. In that case their lordships held that in case of appeals before the Tribunal the compliance with Rules was not mandatory. Also that sufficient but no strict compliance with Rules was required and that mere reasons for non-compliance will not render the memo of appeals incompetent.

4. Learned D.R. on the other hand opposes the prayer for recalling of the order on the ground that it will amount to review the earlier decision which this Tribunal was not competent to do.

5. Having heard the parties we are not persuaded to agree with the submissions made at the Bar for the Revenue that recalling of the order in this case would in any manner amount to review the case. Besides the aforesaid two judgments of the Tribunal, in 1991 PTD (Trib) 583 = 1991 PTD 863 a Full Bench of this Tribunal, found that its rules were not mandatory but directory. However, every case had to be seen in the light of its own facts. After going through the grounds as taken in the memo. of appeal and the order of the Division Bench dismissing the same we have concluded that, in the first instance the grounds of appeal were not that offensive to the Rules to entail dismissal of appeal.' Secondly the assessee had a right to a notice to amend the memo of appeal before the extreme action of dismissal of appeal could have been taken. Learned A.R. of the assessee is correct in pointing out that cause of justice had unnecessarily been sacrificed at the altar of procedure and formality. We are of the view that the dismissal of appeal in the manner has amounted to disagreement with the aforesaid two cases cited at the Bar and also the Full Bench case referred to above. In a recent judgment cited as 1997 PTD (Trib) 879 a Full Bench at Karachi which included one of us, the Judicial Member, we concluded that a Division Bench could not disagree with the judgment of another Bench without reference to a larger Bench. Also that a Full Bench decision has binding on a Division Bench.

6. In the case before us a Full Bench of the Tribunal having found that? the Rules of the Tribunal are directory and not mandatory the dismissal of appeal without an opportunity to the assessee and in absence of any prejudice to the Revenue arising from the non-compliance of the Rules by the assessee is against the ratio settled by the Full Bench. This ratio, it may be noted, also finds support form the judgment of the Karachi High Court in re Noor Hussain Natha (supra). Therefore, we will agree with the submission made at the Bar that dismissal of appeal against a bonding precedent is a mistake apparent from the record. It is accordingly rectified by reference to the powers available to us under section 156 of the Income Tax Ordinance. The aforesaid dismissal order dated 21-4-1996 is recalled. The appeal shall be restored to the registrar at its original number be listed for hearing before any available Bench per roster arrangement.

M.B.A./536/Trib.???????????????????????????????????????????????????????????????????????????????? Order accordingly.