2000 P T D 2165

[Lahore High Court]

Before Muhammad Naseem Chaudhri and Muhammad Akhtar Shabbir, JJ

THE COMMISSIONER OF INCOME-TAX

versus

MUHAMMAD TARIQ JAVED

Income-tax Appeal No. 13 of 1998, heard on 02/03/2000.

Income Tax Appellate Tribunal Rules, 1981---

----R.11---Civil Procedure Code (V of 1908), O.XLI, R.1---Departmental appeal was dismissed by Appellate Tribunal on the ground that certified copy of impugned judgment was not attached with the Memorandum of Appeal-- Department contended that under R.11(3) of the Income Tax Appellate Tribunal Rules, 1981, Tribunal may accept a Memorandum of Appeal which was not accompanied by all or any of the documents referred to in R. 11; office had also not raised any objection at the time of receiving the appeal and that thereafter the appellant was entitled to the use of discretion by the Tribunal in terms of R.11(3) of Income Tax Appellate Tribunal Rules, 1991---Assessee contended that matter had to be considered in terms of O.XLI, R.1 of the Code of Civil Procedure and that appeal could not be proceeded with on account of admitted fact that the same was not accompanied by a certified copy of the impugned judgment passed by the First Appellate Authority---Validity---Situation had occurred due to laxity of the staff of the Tribunal Office otherwise certified copy of the document could be got added and in case of non-compliance of the direction, discretion could be withheld by the Tribunal---Tribunal could accept in its, discretion the Memorandum of Appeal even if not accompanied by all or any of the documents---No justification existed to withhold the discretion to be exercised in favour of the appellant in view of the lapse by the Tribunal Office---No reason had been expressed as to why the discretion had not been exercised by the Tribunal in favour of the appellant---Rule 11 of the Income Tax Appellate Tribunal Rules, 1981 having its independent status had no nexus with O.XLI, R.1 of the Code of Civil Procedure and in the matters of collection of State revenue the dispute could not be allowed to be determined in a perfunctory manner---Approach of the Court and its discretion in a cause for decision before it must be regulated and nurtured in the Islamic philosophy of administration of justice wherein technicalities were not allowed to trip the litigants and obstruct fair case of justice---Dispensation of certified copy, if ordered, would have been quite salubrious for distributing their rightful due to contesting a party---High Court set aside the judgment passed by Appellate Tribunal and remanded the case for its decision afresh in accordance with law.

The Commissioner of Income-tax v. Messrs Sethi Brothers 1987 PTD 703; The Commissioner of Income-tax, Lahore Zone, Lahore v. Gulzar Muhammad 1989 PTD 1008 and The Commissioner of Income-tax v. Messrs Koh-i-Noor Trading Company, Sialkot 1989 PTD 1047 distinguished.

Zamir Hussain and 7 others v. Rasul Butt PLD 1992 Lah. 427 rel.

Kh. Noor Mustafa and Ch. Saghir Ahmad, Standing Counsel for Appellant.

Rana Nazar Saeed on behalf of Muhammad Ali Kausar Siddique for Respondent.

Date of hearing: 2nd March, 2000.

JUDGMENT

MUHAMMAD NASEEM CHAUDHRI, J.---Through the passing of this judgment we propose to dispose of the following appeals wherein the same questions of law and facts are involved:---

(i) I.T.A. No.2 of 1997

The Commissioner of Income-tax Multan Zone, Multan

versus

M/s. Azad Radio and Electric Company, Outside Lahore Gate, Multan.

(ii) I.T.A. No.3 of 1997

The Commissioner of Income-tax Multan Zone, Multan

versus

M/s. New Al-Makhdoom Bhatta Company, 19-Kassi Chisht Nager, Makhdoorn Rashid Multan.

(iii) I.T.A. No.9 of 1997

The Commissioner of Income-tax Multan Zone, Multan

versus

M/s. Haji Muhammad Arshad & Brothers Bhatta Owner. Mauza Bakhar Aarbi, Multan.

(iv) I.T.A. No. 1 of 1998

The Commissioner of Income-tax/Wealth Tax Multan Zone, Multan

versus

M/s. Tariq & Company Contractors, Inside Dehli Gate, Multan

(v) I. T. A. No. 2 to 1998

The Commissioner of Income-tax/Wealth Tax, Multan Zone, Multan

versus

Mr. Muhammad Sharif Khan Khakwani, Sharif Plaza, Multan.

(vi) I.T.A, No.6 of 1998.

The Commissioner of Income-tax/Wealth Tax, Multan Zone, Multan

versus

M/s. Nawaz Autos Store, Outside Haram Gate, Multan,

(vii) I.T.A. No. 13 of 1998

The Commissioner of Income Tax/Wealth Tax, Multan Zone, Multan

versus

Mr. Muhammad Tariq Javed C/o. Muhammad Sharif & Co Contractors, Altaf

Town, Multan.

(viii) I. T. A. No. 13 of 1999

The Commissioner of Income-tax Multan Zone, Multan

versus

Sultan Sons (Private) Limited, Railway Road, Multan.

(ix) I.T.A. No.29 of 1998

C.I.T.

versus

Mehdi Raza Leather Dealar

2. The respective respondent of each appeal was declared as the assessee under section 62 of the Income Tax Ordinance, 1979 by the Income Tax Officer who was directed to pay the income tax to a certain extent. An appeal was preferred before the Appellate Assistant Commissioner of Income Tax which was disposed of on merits and the income tax amount was reduced in each case. The Income Tax Department being aggrieved against the order of the Appellate Assistant Commissioner of Income Tax filed the Second Appeal before the Income Tax Appellate Tribunal, Lahore which was dismissed holding that the non-submission of the certified copy of the impugned order was violative of Rule 11 of the Income Tax Appellate Tribunal Rules, 1981. The certified copy of the impugned judgment was not attached with the memorandum of appeal in each matter. Hence this appeal.

3. We have heard the learned counsel for the parties and gone through the relevant law. The contentions of the learned counsel for the respective appellant are that under Rule 11 of the Income Tax Appellate Tribunal Rules, 1981 the memorandum of appeal has to be accompanied by one certified copy of the impugned judgment and two clear and legible copies of the same but under sub-rule (3) the Tribunal may accept a memorandum of appeal which is not accompanied by all or any of the documents referred to in this rule. They stressed that the memorandum of appeals were deposited in the office and the dealing clerk could raise the objection who remained silent and that thereafter, the appellant was entitled to the use of the discretion in terms of sub-rule (3) ibid. On the contrary learned counsel for the contesting respective respondent relied upon "The Commissioner of Income-tax v. M/s. Sethi Brothers (1987 PTD 703) (Lahore High Court, Lahore) D.B.), The Commissioner of Income-tax, Lahore Zone Lahore v. Gulzar Muhammad (1989 PTD 1008) (Lahore High Court, Lahore) (D.B) and The Commissioner of Income-tax v. M/s. Koh-i-Noor Trading Company, Sialkot (1989 PTD 1047) (Lahore High Court, Lahore (D.B) and laid the emphasis that the matter has to be considered in terms of Order 41, Rule 1 of the Code of Civil Procedure and that each appeal could not be processed with due to the admitted fact that the same was not accompanied by a certified copy of the impugned judgment passed by the First Appellate Court. They maintained that the expression of a. contrary view could not be considered as feasible in the administration of justice.

4. In order to test the accuracy of the aforesaid submissions we feel it necessary to re-produce as under Rule I 1 of the Income Tax Tribunal Rules, 1981:---

"Rule 11. (1) Every memorandum of appeal shall be in triplicate and shall be accompanied by two clear and legible copies (one of which shall be certified copy) of the order appealed against and two copies of the order of the Income Tax Officer alongwith certificate as provided rule 12, and, in the case of an appeal filed by an assessee the memorandum of appeal shall also be accompanied by the receipt showing deposit of fee as specified under subsection (5) of section 134.

(ii) stating that the appeal has been preferred under the directions of the Commissioner.

(3) The Tribunal may, in its discretion, accept a memorandum of appeal which is not accompanied by all or any of the documents referred to in this rule."

5. With utmost regard we express our inability to rely upon the aforesaid judgments referred to by the ' learned counsel for the respondent/assessee for our following reasons:---

The practice in the subordinate Courts and in the High Court is that all the newly instituted matters i.e. suits and appeals, revision are processed with after the report of the office wherein the objections about the non payment of court-fee, non-submission of certified copies of the impugned judgments, orders and documents as well as the matters being barred by time or otherwise etc. etc. are raised. The appellants are asked to make up the deficiency and thereafter, the matter is placed before the Appellate Courts of the higher pedestal which in the instant case is Income Tax Appellate Tribunal. The present- situation has occurred due to the laxity of the staff of the Income Tax Appellate Tribunal otherwise the certified copy of the document could be got added and in case of non-compliance of the direction in the matter, thereafter the discretion could be withheld by the Tribunal. The fact of the matter is that under the aforesaid sub-rule (3) of Rule 11 the Tribunal could accept in its discretion the memorandum of appeal even if not accompanied by all or any of the documents. In view of the lapse of office of A the Tribunal there was no justification to withhold the discretion to be exercised in favour of the appellant. No reason has been expressed as to why the discretion has. not been exercised by the Tribunal in favour of the appellant before them. Even otherwise we hold the view that where the discretion vested in the Tribunal and the same has not been exercised which has been withheld without assigning any reason, this Appellate/Constitutional Court can exercise the discretion in favour of the appellant. This is one aspect of the matter. We would further express that the appellant was not a citizen of the State who was rather the Income-tax Department itself and the relevant litigation branch must be supervised and controlled by the highly placed Officers having the command on the juniors and subordinates. It does not lie within the fitness of the things that an important Department responsible for the collection of the State revenue should not be watched towards the lapse of the instant nature. We make bold in expressing that the non-submission of the certified copy of the impugned judgment passed by the lower Appellate Court seems to be intentional and mala fide and to dispense with the discretion was vested in the Tribunal which surprisingly has also not been used. The disputes of The State revenue cannot be allowed to be settled and determined in routine and in the manner adopted by The Litigation Branch of the Income-tax Department working under the Central Board of Revenue as well as the Income Tax Tribunal. Muss fuss is emanating amongst the intelligent as to how the State functionaries are working and the State is being deprived of its revenue. Without prejudice we hold the view that where the assessee has the right to be heard and cannot be condemned unheard the appeal could not be dismissed in routine in the manner adopted by the Income Tax Appellate Tribunal. This expression revolves around the rule that a dispute has to be determined on merits and not on technicalities especially when the discretion could be exercised by the Income-tax Appellate Tribunal with respect to the dispensation of certified copy of The impugned judgment passed by the First Appellate Court. Even under rule 11(ii) the appeal has to be preferred before the Income Tax Appellate Tribunal under the direction of the Commissioner of Income Tax. The idea and wisdom behind is to afford vigilance of higher degree. We hold the view that Rule 11 of the Income Tax Appellate Tribunal Rules, 1981 has its independent status having no nexus with Order 41, Rule 1 of the Code of Civil Procedure and in the matters of collection of State revenue the dispute cannot be allowed to be determined in a perfunctory manner as has been disposed of in the instant matter.

6. We would refer to the relevant dictum enunciated in Zamir Hussain and 7 others v. Rasul Butt (PLD 1992 Lab. 427) that act of the Court must not prejudice hearing of the cause and its decision on merits. In Islam, approach of the Court and its discretion in a cause for decision before it must be regulated and nurtured in the Islamic philosophy of administration of justice wherein, technicalities are not allowed to trip the litigants and obstruct fair cause of justice. With the above object in the fore front the dispensation of the certified copy of impugned judgment or its delayed submission, if ordered, would have been quite salubrious for distributing their rightful due to each contesting party.

7. For our aforesaid reasoning we accept this appeal, set aside the impugned judgment passed by the Income Tax Appellate Tribunal, dispense with the certified copy of the- impugned judgment and remand the case to' it for its decision afresh in accordance with law before whom the parties and their learned Advocate shall appear on 24-4-2000. Since the discretion has been used in favour--of the appellant, the parties are left to bear their own costs.

8. Before parting with this judgment we would like to ask the Additional Registrar of Multan Bench of the Lahore High Court to send a copy of this judgment to the Chairman, Central Board of Revenue, Pakistan Revenue, Islamabad. He may consider the-- feasibility of issuance of a direction/circular to the Commissioners of Income Tax and the Litigation Branch so that such a lapse does not occur in future which prima facie seems to have occurred due to the carelessness. This is not a case wherein the citizens of the State are litigating with each other and the acquisition of the certified copy of the judgment could be termed to be difficult or out of the reach. The Litigation Branch of the Income Tax Department could easily obtain a certified copy of the impugned judgment(s) from another branch of the said Department. Rather Income-tax Appellate Tribunal should have raprimanded the Litigation Branch after exercising the discretion in favour of the appellant.

C.M.A./M:A.K./C-7/L Order accordingly.