Income Tax Appellate Tribunal Procedure Rules, 1981---

----Rr.10, 11, 12 & 14---Grounds of appeal submitted -by the appellant (Department) before the Appellate Tribunal were different from the grounds of appeal sent to the assessee---Held, such act of the appellant amounted to defeating the purpose and spirit of the Income Tax Appellate Tribunal Procedure Rules, 1981 and the appeal was dismissed in limine on this very ground for the simple reason that such grounds of appeal could not be considered at all.

Ali Nasir Bokhari, D.R. for Appellant.

Muhammad Javed Zakarya for Respondent.

Date of hearing: 26th September, 1997.

ORDER

MUHAMMAD MUJIBULLAH SIDDIQUI (CHAIRMAN). ---The above appeal at the instance of department is directed against the order dated 20-6-1998 by the learned CIT(A) in I.T.A. No.CIT (A)-1/920 of 1988 relating to the, assessment year 1986-87.

2. Heard Mr. Ali Nasir Bokhari learned representative for the department and Mr. Javed Zikarya, learned counsel for the respondent/assessee. Mr. Javed Zikarya has raised preliminary objection to maintainability of the appeal for the reason that the grounds of appeal sent to the assessee are different than the grounds of appeal submitted before the Tribunal and thus it would be deemed that the requirement of rule in this behalf has trot been complied with. In support of his contention he has produced copy of the grounds of appeal sent to the assessee by the assessing officer. The grounds of appeal sent to the assessee bears original signature of the same assessing officer who has filed the appeal and has signed the grounds of appeal submitted before the Tribunal. The copy o, the grounds of appeal available with the assessee bears official seal of the assessing officer and the office of assessing officer. The grounds of appeal submitted before the Tribunal are also duly signed and sealed. For the sake of convenience the grounds of appeal submitted before the Tribunal the grounds of appeal supplied to the assessee are reproduced below:

Grounds of appeal submitted before the Tribunal "MA. Al-A....S...P...L K Assessment year 1986-87 Grounds of Appeal:

1. That the order of the learned CIT (Appeals), is bad in law and on facts.

2. That the learned CIT (Appeals) was not justified to accept the manufacturing account and to allow relief both in the estimation of sales and application of G.P. rate

3. That the learned CIT (Appeals) was not justified in allowing relief and setting aside the assessment on account of various disallowances out of profit and loss account expenses.

4. That the appellant craves permission to add, amend, alter or substitute any ground (s) before or at the time hearing of appeal.

(Sd.)

(Ch. Nazir Ahmed),

Income-tax Officer.

GROUNDS OF APPEAL SUPPLIED TO THE ASSESSEE

Name of the assesseeM/s. Al-A. S. P ..L ..K....

Assessment year 1986-87

GROUNDS OF APPEAL

(1)That the order of the learned CIT (Appeals) is bad in law and on facts.

(2)That the learned CIT (Appeals) was not justified to direct the assessing officer to re-compute the income.

(3)That the appellant craves permission to add, amend, alter or substitute any ground (s) before or at the time of hearing of appeal.

(Sd.)

(Ch. Nazir Ahmed),

Income-tax Officer.

3. A perusal of the above documents shows that the grounds of appeal supplied to the assessee are absolutely different than the grounds of appeal submitted before the Tribunal. The learned D.R. has conceded to this factual position and he is unable to offer any explanation in this behalf. Mr. Javed Zikerya, learned counsel for the respondent has submitted that it is very serious matter and this practice on the part of any party whether department or assessee should neither be condoned nor be allowed to be continued with impunity. He has vehemently argued that such practice if allowed to be continued will create confusion rather chaos and, therefore, such bad precedent should be curbed strictly, whenever brought to the notice of Tribunal. We are persuaded to agree with the submission of Mr. Javed Zikarya. He has drawn our attention to the provision contained in Rule 11 of the Income-tax Appellate Tribunal Rules, 1981, which enjoins upon an appellant to file a certificate provided in rule 12 which says that, "the appellate shall, before filing of appeal send a copy of memorandum and grounds of appeal to the respondent by registered post". A certificate to this effect is also required to be appended with the appeal. Mr. Javed Zikarya has further submitted that these rules are to be read with rule 10 of the Income tax Appellate Tribunal Rules 1981, which says that, "every memorandum of appeal shall be written in Urdu and English and shall set forth concisely and under distinct heads the specific grounds of appeal without any arguments or narrative and such grounds shall be numbered consecutively". Mr. Javed Zikarya has submitted that when all these rules are read together, the only inference, which can be drawn is that the grounds of appeals which are sent to the respondent, must be same as submitted before the Tribunal. He has further contended that the practice as adopted by the department in this case is violative of the spirit of the provision contained in rule 14 of the Income tax Appellate Tribunal Rules, 1981, which contains that, "the appellant shall not, except by the leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal". Mr. Javed Zikarya has proceeded on to argue that the department originally drafted vague grounds of appeal which were sent to the assessee and subsequently changed the grounds of appeal without sending copy of changed grounds of appeal to the respondent. He has maintained that this act on the part of appellant/department amounts to defeat the purpose and spirit of rules referred to above, as the intention of the rules is that the respondent should not be taken by surprise and he is made aware of the issues and grounds which he is likely to defend during the course of arguments. The learned D.R. is not able to rebut any of the contentions raised by the learned counsel for the respondent. We find sufficient force in the contentions raised by Mr. Javed Zikarya and, consequently, we are persuaded to agree with him that such matters are to be dealt with strictly and the appeal should be dismissed in limine on this very ground, for the simple reason that the ground of appeal cannot be considered at all in such circumstances.

4. The appeal at the instance of department stands dismissed accordingly.

M.B.A./543/Trib.Appeal dismissed.