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

----S.129---Appeal to Appellate Additional Commissioner---Amendment in S.129 raising the amount of appeal fee---Effect---Amendment brought in S.129 of the Income Tax Ordinance, 1979 by virtue of Finance Act, 1994 raising the appeal fee from Rs.25 to Rs.2,500 was not applicable to the assessment year prior to the assessment year in which the change was introduced in the statute book.

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

----S.129---Appeal to Appellate Additional Commissioner---Right of appeal-- Accrual of---Right to file appeal accrues to the assessee the day tax return is filed by the assessee or on the date a statutory notice for filing of return is served upon the assessee.

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

----S.129---Appeal to Appellate Additional Commissioner ---Assessee paid appeal fee Rs.25 and Rs.500 for the assessment years 1992-93 and 1993-94 respectively ---Assessee's appeals were dismissed with the observation that "full payment of appeal fee had not been paid"---Validity---Appeals related to assessment years prior to introduction of increase in fee by amendment in S.129 of the Income Tax Ordinance, 1979---Appeals were illegally dismissed without appreciating factual position. of the amended provisions of S.129 of the Income Tax Ordinance, 1979---Appellate Tribunal directed the First Appellate Authority to admit the assessee's appeals for hearing to be decided on merits.

(1995) 71 Tax 318 (Trib.); (1996) 73 Tax 132 (Trib) and W.T.A. No.59A/LB of 1995 rel.

Mirza Anwar Baig for Appellant.

Muhammad Aslam, D.R. for Respondent.

Date of hearing: 20th April, 2001.

ORDER

RASHEED AHMED SHEIKH (JUDICIAL MEMBER). ---These two appeals preferred at the instance of assessee are directed against the order of learned A.A.C:, Range Lahore whereby he has dismissed the assessee's appeals in limine with the observation that full payment of appeal fee had not been made.

2. The facts in brief are that the assessee filed appeals before the learned A.A.C. on 3-9-1995 after making payment of appeal fee of Rs.25 and Rs.500 respectively as was prescribed for the years under appeals. However, the learned A.A.C. vide his letter, dated 3-9-1995 directed the assessee to pay enhanced appeal fee of Rs.2,500 for each year ill accordance with amended provision of law which was introduced through Finance Act, 1994. As the assessee had failed to deposit the requisite appeal fee, the learned Appeal Commissioner dismissed the appeals in limine on account of short payment of appeal fee. Hence these further appeals before us.

3. The learned counsel for the assessee contended that the issue regarding applicability of amended provision of law on account of payment of enhanced appeal fee has already been resolved by the Tribunal in favour of the taxpayers vide its decisions cited as (1995) 71 Tax 318 (Trib.) and (1996) 73 Tax 132 (trib.). In those judgments it was held that the amendments introduced in respect of the enhanced appeal fee is applicable to the appeals pertaining to the assessment year 1994-95 onward only. Thus, the learned C.I.T.(A) had dismissed the assessee's appeals, being defective, ignorating the ratio decidendi in the reported decisions which act of him was not warranted law. In view of this background the learned C.I.T.(A) may be directed to admit the assessee's appeal for hearing and dispose them of on merits. The learned D.R. on the other hand supported the impugned order for the reasons stated therein.

4. We have heard the rival parties appearing at the bar. We feel convinced that the amendment brought in section 129 of the Income Tax ,4 Ordinance, 1979 by virtue of Finance Act, 1994 raising the appeal fee, from Rs.25 to Rs.2,500 is not applicable to the assessment year prior to the assessment year in which the change was introduced in the statute book. Actually the right to file appeal accrues to the assessee the day tax return is filed by the assessee or on the date a statutory notice for filing of return is 8 served upon the assessee. In this regard we draw strength from the aforesaid two reported decisions of the Tribunal. Besides, we also lay hands on unreported decision of the Tribunal bearing W.T.A. No.59A/LB of 1996, dated 27-2-1997 whereby in similar circumstances the appeals pertaining to the subsequent assessment years prior to the assessment year 1994-95 were admitted for hearing. In the present case, the appeals relate to assessment years 1992-93 and 1993-94 i.e. prior to introduction of amendment in section 129 of the Income Tax Ordinance, 1979. Since the issue regarding filing of enhanced appeal tee for those assessment years having already been settled by the Tribunal, we feel no hesitation in holding that the appeals were illegally dismissed by the learned Appeal Commissioner without appreciating factual position of the amended provisions of section 129 of the Income Tax Ordinance, 1979. In the circumstances we direct the learned Appeal Commissioner to admit the assessee's appeals for hearing to be decided on merits. Consequently, the impugned order would stand vacated.

5. Accordingly, the assessee's appeals pertaining to the assessment years 1992-93 and 1993-94 succeed to the extent indicated above:

C. M. A. /M. A. K./119/L??????????????????????????????????? Order accordingly.