Income Tax Ordinance (XXXI of 1979)---

----Ss. 59-A, 66-A, 80-C(7), 143-B & 166---Income Tax Ordinance (XLIX of 2001), S. 221---General Clauses Act (X of 1897), S. 24-A-- Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Administration of justice---Judicial powers, exercise of---Non-speaking order---Assessee being aggrieved of order passed by Income .Tax Appellate Tribunal had assailed the same on the ground that the order was not the speaking order---Plea raised by the assessee was that the Tribunal, in its order, had only reproduced the arguments of both the parties spread over ten pages whereas the operative part of the order was only one lined---Validity---Officials/authorities dispensing justice and exercising judicial powers were supposed to apply their mind to the cases and to determine respective stances taken by the parties and after evaluating the stances to give their own verdict justified by reasons-- Order passed by Income Tax Appellate Tribunal was not a judicial order which was set aside and the matter was remanded to the Tribunal for deciding the appeal of assessee afresh after hearing the parties---Petition was allowed accordingly.  

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630 ref.

Shahbaz Butt for Petitioner.

M. Ilyas Khan for Respondents.

Date of hearing: 29th July, 2004.

JUDGMENT

This Constitutional petition seeks order, dated 5-6-2004 passed by the Income Tax Appellate Tribunal, Lahore to be declared illegal, void and of no legal consequence, whereby appeals of the petitioner were dismissed.

2. Precisely, relevant facts are that petitioner being an individual running concern in the name and style of Messrs Inter Home at Climaxabad, Gujranwala, filed its income tax return for different assessment years which were completed under Self-Assessment Scheme except that of assessment year, 1996-97 for which a regular return in terms of section 143-B of the Repealed Income Tax Ordinance, 1979 was filed. The subsequently filed return also completed under section 59-A read with section 80-C(7) of the Ordinance, 1979. After conclusion of the above referred assessment, the Inspecting Additional Commissioner of Income Tax, Companies Range, Gujranwala in exercise of his powers under section 66-A of the Repealed Income Tax Ordinance, 1979 cancelled/modified the original assessments vide his orders, dated 28-11-2000 and 2-12-2000. Petitioner aggrieved of modification/cancellation, filed appeals before the Income Tax Appellate Tribunal, which were rejected through a consolidated order, dated 21-8-2001.

3. Petitioner filed a miscellaneous application before the Income Tax Appellate Tribunal for rehearing of the appeals on the ground that the order, dated 21-8-2001 was passed without waiting for compliance of the instructions issued by the Tribunal itself. This application of the petitioner was accepted and his appeals were reheard on 15-4-2003 and were decided in his favour. This time the Inspecting Additional Commissioner moved a miscellaneous application claiming that the subsequent order of Appellate Tribunal was not lawful. Rehearing was again allowed and the subsequent order was rescinded on 17-6-2003. Petitioner once again moved an application before the Income Tax Appellate Tribunal under section 166 of the Income Tax Ordinance, 1979 read with section 221 of the Income Tax Ordinance, 2001 and after twice hearing the case, the matter was adjourned sine die. Petitioner filed a Constitutional Petition (W.P. 4367/2004) which was disposed of on 14-5-2004 with a direction to the Income Tax Appellate Tribunal to dispose of the matter by the end of May, 2004. The Income Tax Appellate Tribunal in compliance of direction by this Court, after hearing the parties, through the order dated 26-5-2004 restored the appeals to their original numbers and recalled its earlier orders. Appeals of the petitioner then were taken up for hearing on 5-6-2004, for which date both the parties submitted their respective shorts/briefs as desired by the Income Tax Appellate Tribunal. The appeals were ultimately dismissed through the order impugned dated 5-6-2004. Petitioner thereafter filed instant Constitutional petition with the prayer noted above. Writ Petition was admitted to regular hearing and respondents after their service appeared through their counsel.

4. Learned counsel for the petitioner submitted that though order impugned dated 5-6-2004 passed by the Income Tax Appellate Tribunal (respondent No.2) is spread over ten pages, but its concluding part is of only one line and thus the same being sketchy/non-speaking is not only violative of the directions by this Court contained in judgment in Writ Petition No. 4367 of 2004, but is also contrary to law. It was also contended that the impugned order is reproduction of respective briefs of the parties, which were filed under orders of respondent No.2 and the operative part of the order which has been added by it, of its own, does not convey its mind and being unreasoned, the same is not sustainable at law.

5. Learned counsel appearing on behalf of the respondents attempted to support the impugned order but could not justify the one lined order of dismissal of appeals and frankly admitted that it is not a judicial order as the same does not convey the adjudication done by respondent No.2.

6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. The order impugned is no doubt of ten pages, but its concluding part reads as under:--

"and agreeing with the arguments of the DR, in toto, we find the appeals to be bereft of any merits and are dismissed."

7. The above reproduced concluding part of the impugned order clearly depicts that the Tribunal neither took upon consideration of respective cases of the parties nor it applied its own conscious judicial mind to the facts involved in the case and by simply reproducing the written arguments of the parties, added thereto one line, which does not convey anything. Respondent No.2 is not an administrative Tribunal and discharges judicial functions and such an order is not expected from it. The settled principles regarding administration of justice are that officials/authorities dispensing justice and exercising judicial powers are supposed to apply their mind to the cases and to determine respective stances taken by the parties and after evaluating those to give their own verdict justified by reasons, I am sorry that I am remarking with a very heavy heart that the order impugned can in no manner be placed in the arena of judicial orders. If somebody requires me to give example of a sketchy and unreasoned order, I find that the best order to refer in this behalf would be the one impugned herein. I can refer to volume of judgments to support the stand of the petitioner that the respondent No.2 was needed to pass a speaking order but in order to negate the order, two judgments of the Honourable Supreme Court in the cases of Messrs Airport Support Services v. the Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) and Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another (PLD 2002 SC 630) and section, 24-A of the General Clauses Act, 1897, are enough which clearly mandate without any reservation that some reasons have to be given in support of conclusion drawn. In spite of best efforts I could not find out the basis on which respondent No.2 intended to refuse relief to the petitioner by dismissing his appeals. Result given by respondent No.2 may be correct, but it should have been justified even by drawing few lines from the arguments of DR, which were accepted by it, in toto. Before parting with the judgment I must appreciate the courageous stand taken by the learned counsel for the respondents, who frankly showed his inability to support the order of respondent No.2, dated 5-6-2004. Even in absence of any such concession, I think that even the ablest person cannot help to support the order of the respondent.

8. For the reasons noted above, I am constrained to strike down order dated 5-6-2004 passed by respondent No.2 by accepting instant Constitutional petition, declare the same as illegal, void and non existent, with the result that appeals of the petitioner shall be deemed to be pending before respondent No.2 and shall be decided afresh m accordance with law, after hearing the parties. Since the history of the case addressed in the factual part of this judgment is very ticklish, I direct respondent No.2 to expeditiously decide the appeals. There will be no order as to costs.

M.H./M-701/L Case remanded.