Income Tax Ordinance (XXXI of 1979)---

----Ss. 134(3) & 132(4)---Income Tax Rules, 1982, R.11---Appeal to Appellate Tribunal---Appeal on the basis of photostat copy of the impugned order attested by the Oath Commissioner and communicated by the assessee instead of Appellate Authority---Validity---No appeal shall lie unless the order is communicated by the Appellate Additional Commissioner---Supply of copy by the assessee to the Department duly attested by the Oath Commissioner would not be sufficient for the purposes of filing an appeal and 60 days' time limit shall begin from the date of communication of order by the Appellate Additional Commissioner---Admittedly original/certified true copy was not officially supplied to the Department as required under the law---Appeal, in view of S.132(4) read with 5.134(3) of the Income Tax Ordinance, 1979 and R.11 of the Income Tax Appellate Tribunals Rules, 1982, would neither be maintainable nor entertainable on the basis of photostat copy supplied by the assessee---Appeal of the Department was dismissed by the Appellate Tribunal.

Zaki Ahmed, D.R. for Appellant.

Mushtaq Ahmed, F.C.A. for Respondent.

Date of hearing: 1st November, 2002.

ORDER

By this order we would like to decide the appeal captioned above, preferred by the department being aggrieved and dissatisfied from the impugned order, dated 29-10-1996 passed by the learned CIT(A).

2. The department has taken objections to the order, deleting the addition of Rs.26,00,000 being the rental income from her sister concern Messrs Muhammad Amin Muhammad Bashir Ltd. and setting aside the add-backs made out of P&L account, however, before taking into consideration the merits of the case and grounds of appeal, it would be judicious. and appropriate to conclude the finding on legal grounds taken by the learned counsel for the assessee during the course of arguments, relating to limitation bar and maintainability of the appeal.

3. The facts reveal that the appellate authority did not communicate the impugned order to the Department as per mandatory requirement of law. The Department, therefore, on the basis of photostat copy (attested by the Oath Commissioner) of appellate order supplied by the assessee, preferred by the present appeal. In the letter, dated 20-3-1996, addressed to the learned Commissioner of Income Tax, Zone-E, Karachi, the ACIT, Circle E-05, Zone-E, Karachi, vide para-2 has admitted that the order has not been officially communicated but has been supplied by the assessee on 7th March, 1996, whereas the assessee claims that he supplied the appellate order to the ITO, Circle E-5, Zone-E, Karachi, on 27th March, 1995, i.e. one year earlier, from the date acknowledged by the Department.

4. We have heard the learned representatives of the two parties and have gone through the record. To support his version, the learned counsel for the assessee furnished copy of the letter, dated 27th March, 1995 showing that the above letter has been acknowledged by the ITO on 27th March, 1995 with the remarks that, "after the decision of .first appeal, the stay of remand cannot be granted". The Department was provided sufficient opportunity to controvert the assessee's version and to prove that letter was received by the Department on 7th March, 1996. however, the Department failed to submit the letter referred to by the Department to prove the date of communication of learned CIT(A)'s order as on 7th March, 1996 instead of 27th March, 1995.

5. In the light of above facts, it is evident that, (i) the learned CIT(A) 'has not communicated the, impugned order to the Department, (ii) the letter relied upon by the Department is, dated 27th March, 1995 and not 7th March, 1996, (iii) the above letter is acknowledged by the ITO on 27th March, 1995 with the remarks that after the decision in the first appeal, the stay of demand cannot be granted, and (iv) the Department has mercilessly failed to furnish the evidence that the assessee communicated the order vide letter, dated 7th March, 1996. Apparently the appeal would be time-barred even if for the sake of argument, it is presumed that communication of the impugned order (photostat copy) by the assessee is sufficient for the purpose of filing an appeal. However, our finding on the point of limitation, would be immaterial and of no consequence as the only finding required in this case is "as to whether the appeal preferred on the basis of photostat copy of the impugned order attested by the Oath Commissioner, and communicated by the assessee instead, of Commissioner of Income Tax (Appeals) is maintainable in law". For this purpose, it would be necessary to refer subsection (3) of section 134 of the Income Tax

"Section 134. Appeal to the Appellate Tribunal.--(1)???..

(2).............

(3) Every appeal under subsection (1) or subsection (2) shall be filed within sixty days of the date on which the impugned order is communicated to the assessee or the Commissioner, as the case may be."

6. The words referred to in subsection (3) of section 134 i.e. "impugned order is communicated to the assessee or the Commissioner" shall be read with subsection (4) of section 132 of the Income Tax Ordinance, 1979 which reads as under--

"On the disposal of an appeal, the Appellate (Additional Commissioner) shall communicate the order passed by him to the appellant and to the (Deputy Commissioner) and the? Commissioner. "

7. It can be inferred from the foregoing paras-4 and 5 supra, that the Appellate Additional Commissioner shall communicate the order passed by him to the appellant/assessee and to the Commissioner and time limit of 60 days shall commence from the date on which the impugned order .is communicated to the assessee or Commissioner by the Appellate Additional Commissioner. It is, therefore, clear that no appeal shall lie unless the order is communicated by the Appellate Additional Commissioner. Supply of the copy by the assessee to the Department duly attested by the Oath Commissioner, in the circumstances supra; would not be sufficient for the purposes of filing an appeal and 60 days time limit shall begin from the date of communication of the impugned order by the Appellate Additional Commissioner.

8. It may be stated here that our point of view is further supported by Rule 11 of Income Tax Appellate Tribunal Rules, 1982, which provides that every Memorandum of Appeal shall be accompanied by two clear and legible copies (one of which shall be certified copy) of the order appealed against, whereas a certified copy is a copy of document signed and certified as a true copy by the Officer to whose custody the original in entrusted. Admittedly vide letter, dated 20-3-1996, the original/certified true cope is admittedly not officially supplied to the Department as required under the law, hence presence appeal, in the circumstances supra and in view of the subsection (4) of section 132 read with subsection (3) of section 134 and rule 11 of Income Tax Appellate I Tribunal Rules, 1982, would neither be maintainable nor entertainable on the basis 'of photostat copy supplied by the assessee, admittedly attested by the Oath Commissioner.

9. As a result of our observations above, we have no hesitation to declare that the appeal preferred by the Department is not maintainable'. Consequently, the appeal stands dismissed.

C.M.A./694/Tax (Trib.)??????????????????????????????????????????????????????????????????????? Appeal, dismissed.