Income Tax Appellate Tribunal Rules, 1981---

----R.10---Income Tax Ordinance (XXXI of 1979), S.136---Memorandum of appeal---Contents of---Appeal of the assessee was dismissed by Appellate Tribunal on the ground that grounds of appeal did not conform to the Income-tax Appellate Tribunal Rules, 1981, and were argumentative in nature---No such defect was identified by the Tribunal---Effect---Order of Appellate Tribunal having not identified the defect of form, pleading of assessee was rectifiable and assessee could be allowed an opportunity to rectify the defect instead of dismissing the appeal of assessee.

Mian Ashiq Hussain for Appellant.

Shafqat Mahmood Chohan for Respondents.

Date of hearing: 19th April, 2000.

JUDGMENT

SYED JAMSHED ALI, J.---This judgment will dispose of Tax References Nos.2, 3, 4 and 5 of 1999 as the question of law arising therein is common.

2. Leaving aside the unnecessary details, the appeal of the petitioner assessee was dismissed by the learned Income-tax Appellate Tribunal vide order dated 24-8-1995 on the sole basis that the "grounds of appeal does not conform to the Rules of the Income-tax Appellate Tribunal". The petitioner then approached the learned Tribunal with an application under section 136(1) of the Income Tax Ordinance which was dismissed vide order dated 8-2-1999. This reference was admitted to consider the question whether the appeal of the petitioner before the learned Income-tax Appellate Tribunal could be dismissed on the ground pressed by the said learned Tribunal.

3. The learned counsel for the petitioner contends that while holding that the grounds of appeal did not conform to the rules of the Income-tax Appellate Tribunal even the alleged defect was not identified. Therefore, the dismissal of petitioner's appeal by the said learned Tribunal is ex facie arbitrary.

4. On the other hand, the learned counsel for respondent-department submits that the grounds of appeal were not precise, and therefore, the provisions of rule 10 of the Income-tax Appellate Tribunal Rules were violated. According to him the grounds are argumentative in nature.

5. We have considered the submission made by the learned counsel for the parties. We have perused the grounds of appeal and we find that all the grounds of attack had been enumerated. A perusal of the impugned appellate order of the learned Income-tax Appellate Tribunal shows that no defect of form was even identified. We may add that a defect of form of the pleadings is rectifiable and a litigant should be allowed an opportunity to remedy the A defect instead of throwing out his case. Therefore, our answer to the question whether the appeal of the petitioner could be dismissed on the ground pressed against the petitioner by the learned Income-tax Appellate Tribunal is in the negative. The petition is allowed in the above terms. No order as to costs.

6. The petitioner is directed to appear before the learned Income-tax Appellate Tribunal on 28-4-2 000.

C.M.A./M.A.K./P-13/L Petition allowed.