(a) Wealth Tax Act (XV of 1963)---

----S.35--Rectification of mistake---Scope.

At any time within four years from the date of any order passed by him, or it, the Commissioner, the Wealth Tax Officer, the Appellate Additional Commissioner or the Appellate Tribunal may, on his, or its, own motion rectify .any mistake apparent from the record and shall, within a. like period, rectify any such mistake which has been brought to the notice of the Wealth Tax Officer, the Commissioner, the Appellate Additional Commissioner or the Appellate 'Tribunal, as the case may be, by an assessee. Provided that no such rectification shall be made which has the effect of enhancing the assessment unless the assessee has been given a reasonable opportunity of being heard in the matter.

(b) Administration of justice---

----Courts would be deemed to have inherent jurisdiction in the interest of orderly dispensation of justice in a case for which there is no provision in law for a conceivable eventuality.

(c) Wealth Tax Act (XV of 1963)---

----S. 35---Rectification of mistake---Scope---Provisions of S.35, Wealth Tax Act, 1963 gives jurisdiction for rectification of mistakes by exercising suo motu power by the Authority, who has passed the order or for rectification of such mistake brought to the notice of the said Authority by an assessee.

(d) Interpretation of statutes--

---Maxim: "Expressio unius est exclusio alterius"---When a statute mentions one or more things of a particular class, it may be regarded as silently excluding other things of the same class or similar classes not expressly mentioned---Such rule is not absolute in its application, however, while construing a statute the construction which is most agreeable to justice or reasons is to he preferred.

(e) Interpretation of statutes---

----Enabling provision---Effect---General rule with regard to the effect of an enabling provision is expressed in -maxim "expressio unius est exclusio alterius"---Express provision shuts the door to further implication---If there be anyone rule of law clearer than other, it is the rule that when the Legislature has expressly prescribed one or more particular modes of dealing with matter, such expression always excludes any other mode.

Craies on Statute Law, Seventh Edn., 1971, p.255 quoted.

(f) Wealth Tax Act (XV of 1963)---

----S. 35---Power of rectification of mistake---Scope and ambit of such power-- -Limitations on the power or jurisdiction of the designated authority in rectification of mistake in the order in point of time are i.e. within four years from the date of order passed and that the Authority who has passed the order can suo motu rectify or such mistake can be rectified on the request of an assessee---Right to apply by any Income Tax. Authority has been excluded from S.35, Wealth Tax Act, 1963-- Income Tax Tribunal, in the present case, had erred in law by assuming the jurisdiction for rectification on the application by the Income Tax Authority---High Court set aside the order of rectification by the Tribunal in circumstances.

1998 PTD 3900; 2000 PTD 1169; C.P. No. 1132 of 1999; Mehran Associates Limited v. Commissioner of Income-tax, Karachi 1993 PTD 694 = 1993 SCMR 274; Messrs Hirjina & Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax, Central, Karachi 1971 SCMR 128; Nasimul Haque Malik v. Chief Secretary to Government of Sindh, Karachi 1996 SCMR 1264 and Collector of Customs (Appraisement), Karachi and others v. Messrs Abdul Majeed Khan and others 1977 SCMR 371 ref.

Commissioner of Income tax, Rawalpindi v. Wolf Gang Matzke 1975 PTDD 61 distinguished.

(g) Interpretation of statutes---

---- Fiscal statute---While construing a taxing provision one has to look merely at what is clearly said---Nothing is to be read in and nothing is to be implied---When a statute directs a thing to be done in a particular manner or by certain persons or entities it implies that it shall not be done by any other person or in any other manner---Such principle of construction is based upon probable institution of the Legislature---What cannot be done directly cannot be done indirectly.

Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

Rehanul Hasan Naqvi with Miss Lubna Pervaz for Appellants.

M. Arif Moton and Khursheed A. Hashmi, D.A.-G. for Respondents (on Court's Notice).

Date of hearing: 28th January, 2003.

JUDGMENT

SHABBIR AHMED, J.---The pivotal question of law involved in above appeals is common based on similar facts, it is, therefore, considered proper to deal with together and to dispose them of by this judgment.

The above appeals have been filed by the appellants impugning the order, dated 28-2-2001 passed by the learned Income Tax Appellate Tribunal pertaining to the assessment year 1998-99, served on them on 30-3-2001 whereby the learned Tribunal rectified its order, dated 15-6-2000 on the application of the respondent by invoking the jurisdiction in terms of section 35 of the Wealth Tax Act, 1963.

In order to facilitate consideration of question involved in these appeals, it is considered convenient to deal with Appeal No. 80 of 2001 and the conclusion arrived on the basis of contentions raised on either side will be applied to both appeals.

The above appeals have arisen in the following circumstances:--

The appellant is shareholder of Messrs B.P. Industries (Pvt.) Ltd., filed wealth tax return for the assessment year 1998-99. Amongst other assets, the appellant also had declared shares of the value of 88.8,00,000 of Messrs A & B Industries (Pvt.) Ltd., and claimed exemption from Wealth Tax. The respondent No. 1 while passing the assessment order under section 16(3) of the Wealth Tax Act, for the assessment year 1998-99 did not allow exemption and added the value of shares which aggregated to Rs.49,38,100 to the wealth of the appellant for charging tax under the Act. The appellant dissatisfied with the orders passed by the respondent 1 filed appeal before the learned Commissioner Income Tax (Appeals), Karachi who vide order, dated 29-10-1999 remanded back the case to the respondent 1 with direction to follow the decision of the Lahore High Court in the case reported as 1998 PTD 3900. The respondent 1 preferred appeal before the learned Income Tax Tribunal who vide its order, dated 15-6-2000 confirmed the orders passed by the learned Commissioner of Income Tax (Appeals) by placing reliance on decision of Income Tax Appellate Tribunal, Islamabad's Bench reported as 2000 PTD 1169. Subsequently, the respondents filed a miscellaneous application under section 35 of the Wealth Tax Act for rectification of order, dated 15-6-2000 on the following grounds:---

1. That the valuation of shares of unlisted company in the instant case was made on the basis of face value as per rule 8(2)(c)(i) of the Wealth tax Act, 1963 which provides that the value of shares of Joint Stock Companies registered in Pakistan which are not quoted on Stock Exchange shall be taken to be the face value or the breakup value so determined whichever is higher.

2. The Hon'ble Income Tax Appellate Tribunal vide order W.T.A. No. 393/KB of 1999-2'000 has decided the appeal in view of the reported decision of the Division Bench of Income Tax Appellate Tribunal, Islamabad reported as (2000) 81 Tax 51 which was passed in the light of (Trib.) Judgment of Hon'ble Lahore High Court reported as 1998 PTD 3900 wherein it is held that breakup value is to be adopted for valuation of shares of unlisted companies.

3. That the Hon'ble Income-tax Appellate Tribunal the time of order has ignored the fact that the said order of Hon'ble High Court has been suspended by Hon'ble Supreme Court of Pakistan vide C.P. No. 1964-2, dated 28-2-1998 and C. P. No. 1132 of 1999, 28-3 -2000.

Learned counsel for the parties were put on notice that the aforesaid appeals would be heard land would be disposed of finally on merits at Katcha Peshi stage and the learned counsel have argued the ,appeals for final disposal.

We have heard Mr. Rehanul Hasan Naqvi, assisted by Miss Lubna Pervaz, Advocate on behalf of the appellants and Mr. M. Arif Moton representing the respondents.

The only moot point involved in these appeals are whether on the facts and circumstances of the case, the learned Income Tax Appellate Tribunal was within its right to rectify its order, dated 15-6-2000 under the provisions of section 35 of the Wealth Tax Act, on the application made by the Department.

In order to appreciate the contentions raised on behalf of the respective parties, it would be proper to reproduce the provision of section 35 of Chapter VIII of Wealth Tax Act, pertaining to the rectification of the mistakes, which reads as follows:---

`35. at any time within four years from the date of any order passed by him, or it, the Commissioner, the Wealth Tax Office, the Appellate [Additional Commissioner] and the Appellate Tribunal may, on his, of its, own motion rectify any mistake apparent from the record and shall, within a like period, rectify any such mistake which has been brought to the notice of the Commissioner, the Wealth Tax Officer [, the Appellate [Additional Commissioner] or the Appellate Tribunal, as the case may be, by an assessee:

Provided that no such rectification shall be made which has the effect of enhancing the assessment unless the assessee has been given a reasonable opportunity of being heard in the matter.

The perusal of the aforesaid provision would show that at any time within four years from the date of any order passed by him, or it, the Commissioner, the Wealth Tax Officer, the Appellate Additional Commissioner or the Appellate Tribunal Way, on his, or its, own motion rectify any mistake apparent from the record and, shall, within a like period, rectify any such mistake, which has been brought to the notice of the Commissioner, the Wealth Tax Officer, the Appellate Additional Commissioner or the Appellate Tribunal, as the case may be, by an assessee. Provided that no such rectification shall be made which has the effect of enhancing the assessment unless the assessee has been given a reasonable opportunity of being heard in the matter.

Mr. Rehanul Hasan Naqvi, appearing on behalf of the appellants submission was that under section 35, the Commissioner, Wealth Tax Officer. Appellate Assistant Commissioner and the Appellate Tribunal on their own are empowered to rectify any mistake apparent from the record and such rectification can be done within like period by the same authorities which has been brought to their notice by an assessee.

His submission was that the Authority, who has passed the order can rectify any mistake apparent from the record suo motu or on such mistake having been brought to their notice by an assessee but not by any other Income Tax Authority, unlike similar provision contained in section 156 of the Income Tax Ordinance, 1979 that apart from assessee, it also gives right to any other Income Tax Authority to apply for rectification of the mistake apparent on record.

The provisions of subsections (1) and (2) of section 156 is analogous to the provision of section 35 of 'the Act, with a noticeable addition of words by any other income tax authority in section 156. The provisions of subsections (1) and (2) of section 156 of the Income Tax Ordinance, 1979, reads as follows:---

(1) Any Income Tax Authority or the Appellate Tribunal may amend any order passed by it to rectify any mistake apparent from the record on its own motion or on such mistake being brought to its notice by any other Income Tax Authority or by the assessees.

(2) No order under subsection (1) which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall be made unless the parties affected thereby have been given a reasonable opportunity of being heard.

If the two provisions are put in juxta-position then the omission of the terms' by law other Income Tax Authority' is noticeable in section 35 of the Wealth Tax Act.

Mr. Rahanul Hasan Naqvi, contention was that the cardial principles of interpretation of a fiscal provision of a statute is that it is to be construed liberally in favour of the taxpayer and in case of any substantial doubt; the same is to be resolved in favour of the citizen and to support his contention has referred the case of Mehran Associates Limited v. Commissioner of Income Tax, Karachi 1993 PTD 694 = 1993 SCMR 274.

Mr. Rehanul Hasan Naqvi further contention was that in interpreting the taxing statute the Courts must look to the words of the statute and interpret it in the light of what is clearly expressed. It cannot imply anything which is not expressed. It cannot import provisions in the statute so as to support assumed deficiency and to support his contention has referred the cases of (1) Messrs Hirjina & Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax Central, Karachi (1971 SCMR 128), (2) Nasimul Haque Malik v. Chief Secretary to Government of Sindh, Karachi (1996 SCMI, 1264) and (3) Collector of Customs (Appraisement), Karachi and others v: Messrs Abdul Majeed Khan and others (197 SCMR 371), wherein the following observations were made:---

'in interpreting a penal or a taxing statute the Courts must look to the words of the statute and interpret them in the light of what is clearly expressed, it cannot imply anything which is not expressed, it cannot import provisions in the statute so as to support assumed.'

Mr. M. Arif Moton,' learned counsel for the respondent's contention was that in absence .of a provision in the statute for unforeseen events arising in a case for which it has made no provision, the Courts nave inherent jurisdiction in the interest of orderly dispensation of justice and referred the case of Commissioner of-income Tax, Rawalpindi v Wolf Gang Matzke (1975 PTD 61). The question addressed in the above case was whether on the facts and in the circumstances of the case and in the absence of any provision in the Income Tax Act, 1922 and the Income Tax Appellate Tribunal Rules, 1948, the Tribunal has rightly held that it has inherent jurisdiction to set aside an ex parte order passed by it?

The facts of the case were that assessee filed an Appeal before the Income Tax Appellate Tribunal against the order of Appellate Assistant Commissioner. When the appeal came up for hearing on the date for which parties had been summoned the Tribunal received a telegram from the representative of assessee that he was ill and prayed that the case be adjourned to another date, the Tribunal rejected the prayer for adjournment and thereafter proceeded with the hearing of appeal ex parte and dismissed it. Subsequently, however, the assessee filed an application before Tribunal for the setting aside of ex parte order on the ground that on the date of hearing he was sick and in support' thereof produced a medical certificate, the learned counsel agrees that this application was notwithstanding the objection of Department that in the Act and Rules made thereunder exited to power under which an ex parse order could be set aside, allowed by the Tribunal. But the Tribunal was persuaded by the Department to refer the aforesaid question of law for the decision of High Court. The question was answered in affirmative. It was observed that it is common knowledge, however, that statute normally does not provide for each and every conceivable eventuality, and in respect of some unforeseen events arising in a case for which it has made no provision, the Courts have inherent jurisdiction in the interest of orderly dispensation of justice.

We are respectfully in agreement with above observation that the Courts would be deemed to have inherent jurisdiction in the interest of orderly dispensation of justice in a case for which there is no provision for a conceivable eventuality.

The case of Commissioner of Income Tax Rawalpindi (supra) referred by Mr. M. Arif Moton is distinguished with the present case, in that case there was no provision for setting aside the ex parte order in late Income Tax Act, 1922, whereas, the provision for rectification of a mistake apparent on record, is contained in section 35 of the Wealth Tax Act.

The provisions of section 35 gives jurisdiction for rectification of mistakes by exercising suo motu power by the authority, who has passed the order or rectification of such mistake brought to the notice of the said authority by an assessee.

The argument of Mr. Naqvi proceeds on well-known maxim expressio unius est exclusio alterius', which enshrines the well -established principle of interpretation that when a statute mentions one or more things of a particular class if may be regarded as silently excluding other things of the same class or similar classes not expressly mentioned. But the rule is not absolute in its application. It is equally well-established principle that in construing a statute the construction which is most agreeable to justice or reasons is to be preferred.

In Craies on Statute Law, Seventh Edition (1971) at page 255 contains comment as follows:---

`general rule with regard to the effect of an enabling provision is expressed in maxim `experssio unius est exclusio alterius',. Express provisions shuts the door to 'further implication.' If there be anyone rule of law clearer than other, it is this that when the Legislature have expressly prescribed one or more particular mode of dealing with matter, such expression always excludes any other mode.'

Bearing the above principles in mind the question would naturally be to find out the scope or the ambit of the power' of rectification in section 35 of the Act, which has been quoted above. The question, therefore, would really be whether there is any limitation on the power or jurisdiction of the designated authority in rectification of mistake in the order. Such limitations are of in point of tine i.e. within four years from the date of order passed, secondly, the authority who has passed the order can suo motu rectify or such mistake cart be rectified on the request of an assessee. The right to apply by any Income Tax Authority has been excluded from the provision.

It may be argued that the learned ITAT can treat the application moved by the Department as an information for exercise of suo motu power for rectification of mistake apparent from the record, a general principle, but it would be contrary to principle construing a taxing provisions that one has to look merely at what is clearly said. Nothing is to be read in and nothing is to be implied. When a statute directs a thing to be done in a particular manner or by certain persons or entities implies that it shall not be done by any other manner. This principle of construction is based upon probable institution of the Legislature. It is also well-settled that what cannot be done directly cannot be done indirectly. If any reference is required, the view taken by apex Court in Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) can be referred.

We are of the view that the learned Income Tax Appellate Tribunal has erred in law by assuming the jurisdiction for rectification) on the application by the respondent. Thus the learned Tribunal has exercised the jurisdiction in excess of law, therefore, we set aside the order of rectification. Resultantly, the appeals are allowed. However, the parties are left to bear their own costs.

M.B.A./S-282/KAppeals allowed.