COMMISSIONER OF INCOME-TAX, ZONE-B, LAHORE VS AL-MUSLIM ICE FACTORY, LAHORE, 2002 PTD-LAHORE-HIGH-COURT-LAHORE 2791 (2001)

Income Tax Ordinance (XXXI of 1979)---

----S. 136(1)---Reference to High Court---Income Tax Appellate Tribunal Rules, 1981, Rr. 11 & 15---Appellate Tribunal dismissed the appeal of the assessee on the ground that certified copy of the impugned order had not been filed with the memo. of appeal as provided under R.11 of the Income Tax Appellate Tribunal Rules, 1981---Validity---Rule 15 of the Income Tax Appellate Tribunal Rules, 1981 provides that where a memorandum of appeal was not filed in the manner specified in the said Rules, the Registrar or the officer authorized under R.7 may return same to the appellant to bring it in conformity with the provisions of the Rules within such time as he may fix---Sub-rule (3) of R. 15 explains the consequences to the effect that if a memorandum of appeal was not refiled within the prescribed period or the appellant did not comply with the provisions of sub-rule (1) Registrar was to place the memorandum of appeal before the Tribunal for such orders as it may deem fit or the case shall be placed before the Bench as an objection case---Elaborate procedure having been provided in the Rules with regard to the default in question, the dismissal of appeal without resorting to such procedure was clearly against the cause of justice---Penal action of outright dismissal of appeal could be resorted to only in respect of a contumacious conduct of appellant and that too after observing the procedure detailed in the Rules---Revenue in the present case, was never provided with an opportunity to submit a certified copy of the impugned order nor it was allowed some time to do so---Tribunal proceeded to dismiss the appeal when it was fixed for arguments---Dismissal for such technicality could not be sustained at law---Opinion of Tribunal with regard to alleged lack of interest by the Revenue hardly found support from any material on record---Question whether Tribunal was legally justified to dismiss the appeal for indifference and lack of interest and for breach of R.11 of the Income Tax Appellate Tribunal Rules, 1981 was answered in the, negative by the High Court.

C.I.T. v. Muhammad Tariq Javaid 2000 PTD 2165 and Pakistan Industrial Gases Ltd. v. C.I.T. and another 2000 PTD 2903 rel.

Shafqat Mehmood Chohan for the Revenue.

Nemo for Respondent.

Date of, hearing: 11^th January, 2001.

ORDER

NASEEM SIKANDAR, J.-----This is a case noted by the Lahore Bench of the Income Tax Appellate Tribunal at the instance of CIT Zone-B, Lahore. Following question of law has been framed for our consideration arid reply:---

"Whether on the facts and in the circumstances of the case the Tribunal "was legally justified to dismiss the appeal for indifference and lack of interest and for breach of Rule 11 of the Income Tax Appellate Tribunal Rules?"

2. The respondent-assessee is a registered firm and at the relevant time derived income from running an ice factory. For the assessment year 1982-83 the returned net income of Rs.72,510 was estimated and assessed for the year at Rs.2,00,000. The learned First Appellate Authority/CIT (Appeal) allowed partial relief to the assessee. The departmental appeal against the relief was dismissed by a Division Bench of the learned Tribunal on the ground that certified copy of the impugned order had not been filed with the memo. of appeal under rule 11 of the Income Tax Appellate Tribunal Rule. It was also noted that the D.R. had admitted that he had not been provided with the record of the case. The appeal was therefore, found incompetent and dismissed accordingly. .

3. After hearing the learned counsel for the Revenue 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. It was inter alia held that rule 11 of the ITA Rules, 1981 had an independent status having no nexus with the Order XLI rule I of C.P.C. Also that in matters of collection of revenue the disputes should not be- allowed to be determined in a perfunctory manner as had been done by the Tribunal. In other 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 reason that memo. of appeal contained argumentative ground which was violative of rule 10 of the said Rules. It will be seen that rule 11 requires that memo. 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. Then rule 15 as amended on January 9, 1986 provides that where a memorandum of appeal is not filed in the manner specified in the Rules, the Registrar or the officer authorised under rule 7 may return it to the appellant to bring it in conformity with the provisions of these Rules within such time as he may fix. Sub-rule (3) of rule 15 explains the consequences if a memorandum of appeal is not represented within the prescribed period or the appellant does not comply with the provisions of sub-rule (1). In that cause the Registrar is directed to place .the memorandum of appe^.1 before the Tribunal for such orders as it may deem fit. In other words that case shall be placed before the Bench as .an objection case.

4. Since an elaborate procedure has been described in the Rules with regard to the default in question, the dismissal of appeal without making resort to such procedure clearly against the cause of justice. The penal action of outright dismissal of appeal can be resorted to only in respect of a contumacious appellant and that too after observing, the procedure detailed in the above Rules.

5. In the present case the Revenue was never provided with an opportunity to submit a certified copy of the impugned order nor it was allowed some time to do so. The learned Divisional Bench proceeded to dismiss the appeal when it was fixed for arguments. This dismissal for the aforesaid technicality cannot be sustained at law.

6. The opinion of the Tribunal with regard to alleged lack of interest by the Revenue hardly finds support from any material on record. The inclusion of that aspect in the question as re-modelled by the Tribunal against the one proposed by the Revenue has also not impressed us.

7. Answered in the negative.

C.M.A./M.A.K./C-182/L??????

Reference answered.