Income Tax Ordinance (XXXI of 1979)---

----Ss.134 & 156---Constitution of Pakistan (1973), Art. 199---petition---Wavering attitude of Appellate Tribunal--Appeal filed by petitioner/assessee under S.134 of Income Tax Ordinance, 1979 was rejected by Tribunal, but later on pursuant to miscellaneous application made by petitioner, his appeal was accepted--Subsequently Department re-agitated the matter by filing application under S.156 of Income Tax Ordinance, 1979 and Tribunal by passing ex parte order recalled its earlier order whereby appeal filed by petitioner was accepted and previous order was cancelled---Inaction on the part of Tribunal in not deciding miscellaneous application of petitioner challenging said latest order of Tribunal was also very exceptional act and a very strange working---Matter, in circumstances was referred to Chairman, Income Tax Appellate Tribunal for constituting a Bench other than the Benchwhich was already seized of the matter so that entire case could be reconsidered and infirmities corrected in accordance with law.

Shahbaz Butt for Petitioner.

Yawar Ali Khan, Dy. A.-G. and Muhammad Ghias ud Din, Assistant Registrar for Respondent.

Date of hearing: 14th May, 2004.

JUDGMENT

The petitioner had filed an appeal in terms of section 134 of the repealed Income Tax Ordinance before the Income Tax Appellate Tribunal. On 21-8-2001 the Tribunal gave its judgment and rejected the appeal. This order is now being impugned.

2. There have been subsequent procedural references to the Tribunal pursuant to the miscellaneous applications made by the petitioner where inter alia the prayer was made for recalling of order, dated 21-8-2001. It is said that the miscellaneous applications were fixed for hearing on 1-12-2001. What happened thereafter is stated in paragraph Nos. 8, 9 and 10 of the petition.

3. In paragraph No. 11 of his petition, the petitioner has stated:--

"That in the above background the main appeals of the petitioner were again heard by this Hon'ble Tribunal on 1-2-2003 and vide order, dated 15-4-2003 the same were accepted."

4. It seems that the matter did not end there and was re-agitated by the respondent side who made an application to the Tribunal in Terms of section 156 of the Income Tax Ordinance, 1979 claiming that the order, dated 21-8-2001 having attained finality it could not have been re- decided on 15-4-2003.

5. The following are the submissions made in the petition for what happened thereafter before the Tribunal:--

"The learned Tribunal decided the above said applications of the respondent vide order, dated 17-6-2003 passed in M.A. No.347/LB of 2003 to M.A. No. 349/LB of 2003 (Assessment Years 1996-97, 1998-99 and 1999-2000), (Copy of order, dated 17-6-2003 is Annexure-J). The respondent in the said application viz., the present petitioner was proceeded ex parte for want of appearance while after hearing the respondent (applicant in the said applications), 'the learned Tribunal was pleased to pass the following order:--

"(4) We 'have heard the learned representatives appearing on behalf of the Revenue and have also gone through the case file. We feel ourselves persuaded by the contentions raised by the learned representatives for the Revenue that there is a mistake apparent in the face of record for the reason that Tribunal adjudicated and disposed of the appeals vide its order, dated 21-8-2001. However, due to mistake the same appeals were re-fixed by the officer and another order, dated 15-4-2003 was passed by the Tribunal with regard to the same peals which have already been rejected by the Tribunal. It is pertinent to mention here that representatives for both the parties were present at the time of hearing of appeals on 1-2-2003. However, either due to mistake or due to lack of proper presentation none of the representatives brought the factum of disposal of earlier _appeals to the notice of the Bench. Therefore, for the foregoing reasons we recall our order passed on 15-4-2003 and the same stands cancelled accordingly."

6. The grievance of the petitioner presently is against this ex parte order passed by the learned Tribunal, dated 17-6-2003. One of the contentions raised in the petition itself was:--

"That since the case was pleaded by the respondent without taking into consideration the order sheet entry, dated 1-12-2001 and without referring to the consequences thereof and concealing this fact from the Court, has successfully influenced the Tribunal so as to pass the order, dated 17-6-2003 and thus the Tribunal could not take full cognizance of the facts resulting into the procurement of order, dated 17-6-2003. That, therefore, on 29-7-2003 the petitioner has moved applications under section 156 of the Income Tax Ordinance, 1979 (repealed) read with section 221 of the Income Tax Ordinance, 2001 before the Tribunal in I. T. As. Nos. 370, 371, 372/LB of 2001 praying therein that the Tribunal order, dated 17-6-2003 may be recalled and cancelled while the order lawfully passed on 15-4-2003 be restored keeping in view the Tribunal orders passed on 1-12-2001 in the order sheet of record of appellate proceedings of the Income Tax Ordinance."

7. The petitioner prayed that his applications filed for getting the order, dated 17-6-2003 set aside, remained undecided with the Tribunal having been adjourned sine die on 14-10-2003 and he is seeking directions, against the Tribunal for hearing the same while keeping in view the entire record.

8. This Court has the-advantage of hearing the learned Deputy' Attorney General as well. It is strange to observe the wavering attitude of the learned Tribunal who had first rejected the appeals, later accepted the same on the basis of a miscellaneous application and once again on a petition from the Revenue and while proceeding ex parte had undone the orders in favour of the petitioner. The inaction on the part of the learned Tribunal in not deciding the miscellaneous application of the petitioner challenging the latest order of the Tribunal is also a very exceptional act and a very strange working.

9. Under the circumstances, the matter is referred to the Chairman, Income Tax Appellate Tribunal for constituting a Bench other than the Bench who was already seized of the matter so that the entire case comes up for re-consideration and the infirmities are corrected in accordance with law. The petitioner is directed to appear before the newly constituted Tribunal on the 25th of May, 2004. Whereas, the newly constituted Tribunal is further directed to hear all sides and dispose of the matter by the end of May, 2004. A copy of this order be given Dasti to the petitioner so that he presents it to the learned Tribunal for formation of an Appellate Bench. The office too is directed to immediately send a copy of this order by name to the learned Chairman, Income Tax Appellate Tribunal, Islamabad.

10. The matter stands disposed of with these directions.

H.B.T./M-711/LOrder accordingly.