Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑Ss.136, 134(2)(5) & 155‑‑‑Reference to High Court‑‑‑Appellate Tribunal had dismissed the Departmental appeal merely on technical grounds that the memo of appeal and other documents had been signed by any other person on behalf of Assessing Officer and without providing an opportunity to make up the deficiency‑‑‑Validity‑‑‑Appeal memo was signed by some one on behalf of the Assessing Officer and even the name and designation of the person who supposedly exercised the authority of filing the appeal on behalf of the Assessing Officer had not been mentioned‑‑‑Documents appended with the appeal were not duly certified as prescribed under the rules but same were also attested by the said person‑‑‑Contention that appeals were dismissed merely on technical ground did not hold good because such defect was not merely a technical objection/mistake/omission which could be cured under S.156 of the Income Tax Ordinance, 1979‑‑‑Section 134(2) read with S.134(5) of the Income Tax Ordinance, 1979 provided that appeal on behalf of the Department could be filed only by the Assessing Officer and none else‑‑ When law required something to be done in a particular manner, the same must be done in that manner or not at all‑‑‑No question of law arising and reference application being devoid of any merit same was dismissed by the Appellate Tribunal.

2001 PTD 781 rel.

Nemo for Appellant.

Bashir Ahmad Ansari for Respondent.

Date of hearing: 17th July, 2002.

ORDER

SYED NADEEM SAQLAIN (JUDICIAL MEMBER). ‑‑‑Titled reference application for the assessment year 1992-93 has been preferred at the instance of the Revenue praying therein that the following questions of law be referred to the Hon'ble High Court for seeking its opinion:

"(i) Whether under the facts and circumstances of the case, the learned Income‑tax Appellate Tribunal was justified to dismiss the Departmental Appeal merely on technical grounds that the memo of appeal and other documents have been signed on behalf of Assessing Officer."

"(ii) Whether under the facts and circumstances of the case, learned Tribunal was justified in rejecting the Departmental Appeal without providing an opportunity to make up the deficiency, if any, observed/found by the learned Income‑tax Appellate Tribunal."

2. No one appeared on behalf of the Revenue in spite of proper service of notice. However, learned A.R. of the assessee is present and the reference application stands disposed of ex parte on merits.

3. Briefly stated facts of the case are that the assessee in the present case is an Advocate by profession who filed return for the assessment year 1992‑93 under Self‑Assessment Scheme declaring income at Rs.95,000 from professional receipts as well as property income. The said case was excluded from the purview of S.A.S. and the Assessing Officer finalized assessment under section 62 of the Income Tax Ordinance, 1979. On appeal by the assessee, the learned CIT(A) annulled the assessment and directed to accept the return under S.A.S. Departmental Appeal before the Tribunal against the first appellate order was dismissed vide order bearing I.T.A. No.1478/LB of 1995 ‑Assessment year 1992‑93 dated 8‑6‑2001 for the reason that the appeal was not maintainable because it was not filed 'through a competent Authority. Actually, the memo of appeal and other documents appended with the appeal were signed by someone else on behalf of the Assessing Officer.

4. Now it is the contention of the Department that the questions of law have arisen from the dismissal of the Departmental Appeal by the Tribunal and same may be referred to the Hon'ble High Court for its opinion on the issue.

5. Perusal of statement of facts as well as questions of law framed by the Revenue shows that in the opinion of department signing of memo. of appeal and other documents by a person other than the Assessing Officer does not make the appeal incompetent. The learned A.R. has controverted the stand taken by the Revenue. He submitted that not only the appeal ‑was in violation of rules but it was also in flagrant violation to the legal provisions of the Income Tax Ordinance, 1979. In support of his contention, the learned A.R. relied upon the judgment of the Lahore High Court, Lahore reported as 2001 PTD 781 wherein the question which came for adjudication before the Hon'ble High Court was "whether simultaneous approval would serve the purpose where two separate approvals were required to be obtained for making addition under sections 31 and 32 of the Ordinance. It was held by the Hon'ble High, Court that when law requires something to be done in particular manner then the same must be done in that manner or may not be done at all. The learned A.R. also referred to section 134 subsection (5) of the Ordinance which is being reproduced as under:‑‑‑

"Quoted"

"Section 134: Appeal to the Appellate Tribunal.‑‑‑(1) An assessee objecting to an order passed by an Appellate (Additional Commissioner) under section 111 or 132, or subsection (2) of section 148, or an order made by the Appellate (Additional .Commissioner) under section 156, having the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the assessee or an order made by an Inspecting Additional Commissioner tinder section 66A may appeal to the Appellate Tribunal against such order.

(2) The Commissioner may, if he objects to any order passed by an Appellate (Additional Commissioner) under section 132 direct the (Deputy Commissioner) to appeal to the Appellate Tribunal against such order."

"Unpuoted"

6. Commenting upon the above reproduced provision of law, the learned A.R. asserted that it has been made mandatory, that the appeal before the Tribunal is to be filed in the prescribed form and to be verified in the prescribed manner. He further submitted that in case, a Departmental Appeal is to be filed, the Commissioner can issue directions to the Deputy Director to file appeal before the Appellate Tribunal.

We have given due consideration to the arguments addressed by the learned A.R. and we find ourselves in full agreement with the submissions in this regard. There is no denying fact that in the instant case, the appeal memo. was signed by someone on behalf of the Assessing Officer. It is also worth‑mentioning that even the name and designation of the person who supposedly exercised the authority of filing the appeal on behalf of the Assessing Officer has not been mentioned. It is also important to note that the documents appended with the appeal were not duly certified copies as prescribed under the Rules but same were also attested by the someone. The contention of the Revenue that Tribunal dismissed the Departmental Appeals merely on technical ground does not hold good because it was not merely a technical objection/mistake/omission which could be cured under section 155 of the Ordinance. If we go through the section 134(2) read with section 134(5), it is very much clear that the appeal on behalf of the Department could be filed only by D.C.I.T./Assessing Officer and none else. The arguments tendered by the learned A.R. stand substantiated by the case‑law cited at the bar where the Hon'ble High Court laid down the law, that when law requires something to be done in a particular manner, the same must be done in that manner or may not be done at all.

8. In this view of the matter, we are of the considered view that no questions of law arise out of our earlier order passed in I.T.A. No. 1478/LB of 1995 dated 8‑6‑2001; hence, reference application being devoid of any merit stands dismissed.

C. M. A./566/Tax(Trib.)Application dismissed.