COMMISSIONER OF INCOME/WEALTH TAX VS MUHAMMAD ZAKA ASHRAF, 2005 PTD-LAHORE-HIGH-COURT-LAHORE 2147 (2005)

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

----S. 27---Appeal to High Court---Impugned order of the Tribunal revealed that the Tribunal had failed in its duty and declined to exercise its jurisdiction to decide the appeal completely and effectively---Non decision of the issues by the Tribunal on the grounds which could only be termed as ruses disguised as reasons to avoid adjudication of the issues in appeal, was disapproved by the High Court---High Court set aside the impugned order of the Tribunal with observation that there could not be a better case than the present one for the remand and directed that appeal filed before the Tribunal shall be deemed to be pending which shall be decided by the Tribunal in accordance with the law---Parties shall be allowed due opportunity to make their respective submissions---Matter being remanded to the Tribunal for redecision, answer to the questions was declined by the High Court.

Examination of the impugned order of the Tribunal reveals that the Tribunal failed in its duty and declined to exercise its jurisdiction to decide the appeal completely and effectively. As per its order, the Tribunal opted not to decide the issue in appeal because:

(i)the issue was quite important;

(ii)further dilation of the issue was required for the decision;

(iii)more assistance of the parties was required; and

(iv)hence the Tribunal's refrained from giving a finding.

Non-decision of the issues by the Tribunal on above recorded grounds therefore cannot be approved. These grounds can only be termed as ruses disguised as reasons to avoid adjudication of the issues in appeal. The line between a ruse and a reason is well-defined in law though it may be thin in the ordinary social parlance.

In the present case ruses have been employed to avoid the duty of decision and adjudication.

Refraining from deciding because of the purported need for further dilation and assistance amounts to denial and abridgement of the right and the remedy of appeal. The grounds cited by the Tribunal for its non-decision were patently illegal, illogical and ill-founded. These grounds were neither convincing nor credible. In the impugned order, the Tribunal painstakingly reproduced the arguments and the grounds of both the parties yet took no pains to deal with and decide the same. Both the parties submitted their case before the Tribunal during the hearing with comprehensive details. Had there been need for further legal assistance, Tribunal could have adjourned the case to demand such assistance from the parties. The Tribunal, instead, decided not to decide the issues involved in the appeal. It was thus a classic case of refusal to exercise jurisdiction vesting in the Tribunal and avoidance to perform its duty to decide a case.

The paradox did not end here. Intriguingly the Tribunal dubbed its own indecision as a situation of "doubt" to be resolved for the assessee. Neither the nature of "doubt" was specified nor was the basis and rationale for the "doubt", if any, was particularized in the impugned order.

(b) Words and phrases----

--"Reason" and "ruse"---Distinction.

"Reasons" is the logical conclusion arising from the application of the power of mind to think, analyse, assess and thus deduce or conclude. "Reasons" is the analytically derived and deducted base of a legal belief or order or judgment. It is the essence of a logical process.

Ordinarily a "Reasons" if good, is fair, just, rational and sensible. Even a good reason is open to attack by a stronger or an equally good reason.

Contrarily "Ruse" is only a pretext or an excuse having no logical or reasonable basis to do or not to do a thing/act. A trained and an experienced human mind can, with a little application, remove the smoke screen of a ruse to discover the truth.

Muhammad Ilyas Khan for Appellant.

Muhammad Iqbal Hashmi for Respondent.

Date of hearing: 2nd May, 2005.

JUDGMENT

MUHAMMAD SAIR ALI, J.---The learned counsel for the parties during arguments on this appeal jointly stated that the learned Tribunal after recording in detail the respective contentions of the parties, did not give any definitive finding upon the questions of law and issues involved in the appeal before the learned Tribunal. And that the reason of the Tribunal not to give a decision upon the issues was recorded by the learned Tribunal as under:--

"The issue is quite important and we think that this matter should not be decided without further dilation of the issue and more assistance from the two sides; hence we refrain to give a finding at this stage."

2. The learned counsel for the parties further stated that despite non-decision of the involved issues, the learned Tribunal recorded that a doubt had arisen and that the doubt was to be resolved in favour of the assessee. Both the learned counsel stated that the learned Tribunal neither specified the nature of the doubt nor the reason for these observations.

3. In view of the above, the learned counsel for the parties jointly requested for setting aside the impugned judgment, dated 4-7-2002 of the Tribunal with a request to remand the matter for re-decision in accordance with law after opportunity to the parties to raise the grounds, available to them.

4. The joint request of the learned counsel for the parties appears to be reasonable.

5. Examination of the impugned order of the learned Tribunal reveals that the learned Tribunal failed in its duty and declined to exercise its jurisdiction to decide the appeal completely and effectively.

As per its order, the Tribunal opted not to decide the issue in appeal because:---

(i)the issue was quite important;

(ii)further dilation of the issue was required for the decision;

(iii)more assistance of the parties was required; and

(iv)hence the Tribunal's refrain from giving a finding.

6. Non-decision of the issues by the Tribunal and above recorded grounds therefore cannot be approved. These grounds can only be termed as ruses disguised as reasons to avoid adjudication of the issues in appeal. The line between a ruse and a reason is well-defined in law though it may be thin in the ordinary social parlance.

7. "Reasons" is the logical conclusion arising from the application of the power of mind to think, analyse, assess and thus deduct or conclude. "Reasons" is the analytically derived and deducted base of a legal belief or order or judgment. It is the essence of a logical process. Ordinarily a "Reason" if good, is fair, just, rational and sensible. Even a good Reason is open to attack by a stronger or an equally good reason.

8. Contrarily "Ruse" is only a pretext or an excuse having no logical or reasonable basis to do or not to do a thing/act. A trained and an experienced human mind can, with a little application, remove the smoke screen of a ruse to discover the truth.

9. In the present case ruses have been .employed to avoid the duty of decision and adjudication.

10. Refraining to decide because of the purported need for further dilation and assistance amounts to denial and abridgement of the right and the remedy of appeal. The grounds cited by the Tribunal for its non-decision were patently illegal, illogical and ill-founded. These grounds were neither convincing nor credible. In the impugned order, the learned Tribunal painstakingly reproduced the arguments and the grounds of both the parties yet took no pains to deal with and decide the same. To our reading both the parties submitted their case before the Tribunal during the hearings with comprehensive details. Had there been need for further legal assistance, Tribunal could have adjourned the case to demand such assistance from the parties. The Tribunal, instead, decided not to decide the issues involved in the appeal. It was thus a classic case of refusal to exercise jurisdiction vesting in the Tribunal and avoidance to perform its duty to decide a case.

11. The paradox did not end here. Intriguingly the learned Tribunal clubbed its own indecision as a situation of "doubt" to be resolved for the assessee. Neither the nature of "doubt" was specified nor was the basis and rationale for the "doubt", if any, was particularized in the impugned order.

12. In view of the above we could not but appreciate the wisdom of the learned counsel for the parties in jointly conceding that the appeal before the Tribunal was not decided. And that the impugned order passed by the Tribunal, did not qualify as an order or a judgment.

13. We, therefore, accept the appeal and set aside the impugned order, dated 4-7-2002 of the Income Tax Appellate Tribunal. There cannot be a better case than the present one for the remand. The appeal filed before the Tribunal shall be deemed to be pending. The same shall be re-decided by the Tribunal in accordance with law. The parties shall be allowed due opportunity to make their respective submissions. The matter has been remanded to the learned Tribunal for re-decision, there is thus no need to answer any of the questions herein raised.

M.B.A./C-86/LCase remanded.