COMMISSIONER OF INCOME-TAX VS KOHINOOR SUGAR MILLS LTD.
2001 P T D 2411
[Lahore High Court]
Before Nasim Sikandar and Jawwad S. Khawaja, JJ
COMMISSIONER OF INCOME‑TAX/WEALTH TAX,
COMPANIES ZONE, FAISALABAD
Versus
FINE CLOTH HOUSE (PVT.) LTD., FAISALABAD
P.T.R. Nos.36 to 39 of 1996, heard on 03/04/2001.
Income Tax Ordinance (XXXI of 1979)‑‑‑--
‑‑‑‑S.136‑‑‑Income Tax Appellate Tribunal Rules, 1981, Rr.11 & 15‑‑ Reference to High Court‑‑‑Appellate Tribunal rejected the appeal for enclosing illegible copy of impugned order by taking the same as non compliance of Income Tax ‑Appellate Tribunal Rules, 1991‑‑‑Validity‑‑ Rule 15 of the Income Tax Appellate Tribunal Rules, 1981 provides for return of memorandum of appeal etc. where it was not filed in the manner specified therein‑‑‑Sub‑clause (3) of R.15 also takes care of the situation where an appellant, despite ,having been allowed an opportunity to amend and rectify the deficiency, either failed to represent within the time fixed under sub‑rule (1) or to comply with the provisions of that sub‑rule‑‑ Income‑tax Appellate Tribunal was not justified in rejecting the Department's appeal without providing opportunity to make up the deficiency if any‑‑‑Appeals filed in the present case would be deemed pending before the Tribunal to be heard and disposed of in accordance with law.
CIT v. Muhammad Tariq Javaid 2000 PTD 2165 and Pakistan Industrial Gases Ltd. v. CIT and another 2000 PTD 2903 rel.
Muhammad Ilyas Khan for Petitioner.
Nemo for Respondent.
Date of hearing: 3rd April, 2001
JUDGMENT
NASIM SIKANDAR, J.‑‑--This judgment will dispose of P.T.R. Nos.36, 37 and 38 of 1996.
2. These applications under section 136(2) of the Income Tax Ordinance, 1979 moved at the instance of Commissioner of Income Tax/Wealth Tax, Zone, Faisalabad, propose following questions of law for our consideration and answer which are said to have arisen out of a consolidated order of the Tribunal recorded on 24‑10‑1995:‑‑‑
"(i)Whether under the facts and circumstances of the case the learned Income‑tax Appellate Tribunal was justified in rejecting the department's appeal for illegible copy of impugned order by observing it as non‑compliance of Income Tax Appellate Tribunal Rules.
(ii)Whether under the facts and circumstances of the case, the learned Income‑tax Appellate Tribunal was justified in rejecting the department's appeal without providing an opportunity to make up the deficiency, if any, observed/found by the Income‑tax Appellate Tribunal. "
3. The respondent is a private limited company and during the relevant assessment years viz. 1988‑89, 1989‑90 and 1990‑91 engaged itself in sale of cloth on whole sale basis. The Assessing Officer rejected the returned version and made trading as well as profit and loss account additions to frame assessments in the three years involved. The learned First Appellate Authority/CIT (Appeals), Faisalabad on 18‑8‑199] directed deletion of trading additions. Also partial relief was allowed in profit and loss disallowances. The department agitated the relief so allowed before the Tribunal. However, three appeals filed by it were rejected on 24‑10‑1995 through a consolidated order solely on the ground that certified copies of the impugned appellate order were not attached with the memo of appeals. Also that these were not fully legible. The request of the department subsequently made for reference of the aforesaid questions was also declined on 21‑5‑1996. Hence the department has approached this Court under section 136(2) of the Income Tax Ordinance, 1979.
4. After hearing the learned counsel, we will agree at the outset that the issue in hand already stands resolved in favour of the Revenue by a Division Bench of this Court in re: CIT v. Muhammad Tariq Javaid 2000 PTD 2165. In that case, it was inter alia held that rule 11 of the I.T.A.T. Rules, 1981 had an independent status having no nexus with Order 41, rule 1 of C.P.C. Also that in matters of collection of revenue the dispute could not be allowed to be determined in a perfunctory manner as had been done by the Tribunal. In another recent judgment re: Pakistan Industrial Gases Ltd. v. CIT and another 2000 PTD 2903 another Division Bench of this Court disapproved the dismissal of appeal by the Tribunal for the reasons that memo of appeal contained argumentative grounds which was violative of rule 10 of the said rules.
5. In the light of the aforesaid judgments and the fact that the Tribunal failed to make resort to rule 15, we will return a negative answer to both the questions. It will be noted that rule 15 of the Income Tax Appellate Tribunal Rules, 1981 provides for return of memorandum of appeal etc. where it is not filed in the manner specified therein. Sub‑clause (3) of that rule also takes care of the situation where an appellant despite having been allowed an opportunity to amend and rectify the deficiency either failed to represent within the time fixed under sub‑rule (1) or to comply with the provisions of that sub‑rule.
6. In view of our negative answer to both the questions, appeals filed by the Revenue shall be deemed pending before the Tribunal to be heard and disposed of in accordance with law.
C.M.A./M.A.K./C‑91/LOrder accordingly.