M.As. (Cond.) Nos. 393/LB to 397/LB, M.As. Nos. 398/LB to 402/LB of 2005, decided on 24th September, 2005. VS M.As. (Cond.) Nos. 393/LB to 397/LB, M.As. Nos. 398/LB to 402/LB of 2005, decided on 24th September, 2005., 2006 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1571 (2005)

(a) Income Tax Ordinance (XXXI of 1979)---

----Ss. 134(4) & 156--Appeal to Appellate Tribunal---Condonation of delay---Filing of miscellaneous applications for condonation of delay after the main appeals/issues had been disposed of---Validity---No application seeking condonation of delay was submitted nor any affidavit in support thereof was filed at the time of hearing of original appeals---Miscellaneous applications seeking condonation of delay were filed after the receipt of Appellate Tribunal's order whereby appeals were dismissed because of late filing of appeals---After having rejectee the appeals, the Appellate Tribunal as an appellate authority had become functus officio, and could not re-examine the issue--Filing of miscellaneous applications for condonation of delay after the main appeals/issues had been disposed of was deprecated.

1981 SCMR 536 and 1991 PTD,1056 rel.

(b) Income Tax Ordinance (XXXI of 1979)---

----Ss. 134(4) & 156---Appeal to Appellate Tribunal---Condonation of delay---Filing of appeal through registered post---Effect---Date on which appeal papers were received by the Registrar/Assistant Registrar either through post or otherwise, would be considered the actual date of filing of appeal---Miscellaneous applications seeking condonation of delay could not be entertained after the main appeals had already been finalized---Even otherwise as per law the appellant was bound to explain delay of each day at the time of hearing of original appeals---Posting of appeals within time was of no consequence, because the law did not permit the Registrar/Assistant Registrar to consider the appeals received after the expiry of stipulated time that the same had been instituted on the day when it was posted.

Rana Muhammad Luqman, D.R. for Appellant.

Abdul Rehman Mir, F.C.A. for Respondent:

Date of hearing: 24th September, 2005.

ORDER

SYED NADEEM SAQLAIN, JUDICIAL MEMBER.---Out of titled ten miscellaneous applications five bearing M.As. Nos. 393 to 397/LB of 2005 have been preferred seeking for condonation of delay in filing of original appeals while rest of the five other miscellaneous applications pertaining to M.As. Nos. 398 to 402/LB of 2005 were filed seeking review of Tribunal's earlier order, dated 12-3-2005. All these miscellaneous applications are being decided by this consolidated order as under:---

2. Briefly stated the facts of the case are that appeals of the Revenue relating to the assessment years 1995-96 to 1998-99 were dismissed by the Tribunal being incompetent since appeals were time-barred by one day and that no application seeking condonation of delay had been filed by the Revenue. Being aggrieved by the order of the Tribunal the Revenue has submitted miscellaneous applications seeking both condonation of delay in filing of appeal as well as recall of earlier order, dated 12-3-2005.

3. The learned D.R. appearing on behalf of the Revenue contended that delay was neither deliberate nor wilful. It was further contended that orders of the learned CIT(A) were received on 11-5-2001 and as per Commissioner of Income Tax, Multan Zone, Multan's letters Ngs.110 & 111, dated 4-7-2002, the limitation expired on 10-7-2002. It was further argued that appeal papers were signed on 6-7-2002 and same were sent through registered post on (sic)-7-2002. It was elaborated that the delay actually occurred due to postal authorities mismanagement, hence delay in filing of original appeals may be condoned. Through separate other misc. applications the Revenue has taken the same grounds, however, in the end prayer was made for reconsideration of the case on merit.

4. The learned A.R. of the assessee on the other hand opposed the arguments advanced by the learned D.R. and submitted that since on the date of hearing of original appeals no application seeking condonation of delay and affidavit in his regard were filed, the Tribunal was justified to dismiss the appeals being incompetent. It was argued that request for review of the order passed by the Tribunal is legally not tenable in the eye of law since Income Tax law does pot contemplate revision of any order by any Income' Tax Authority including ITAT. However the assessing authority as well as appellate authorities have been conferred with the powers of rectification by ' resorting to section seeking condonation of delay and affidavit in support of facts on the basis of which the limitation was sought to be condoned have been filed at the time of hearing of appeal, the Revenue could not come up with this plea at this belated stage. In support thereof reference was made to the reported judgments of the apex Courts cited as 1981 SCMR 536 and 1991 PTD 1056.

5. We have heard both the parties and have gone through the relevant orders as well as case law cited at the bar. Admittedly, at the time of hearing of original appeals no application seeking condonation of delay was submitted nor any affidavit in support thereof was filed. The present miscellaneous applications seeking condonation of delay were filed after the receipt of Tribunal's order whereby appeals were dismissed because of late filing of appeals. After having rejected the departmental appeals, the Tribunal as an appellate authority has become functus officio, and could not re-examine the issue. Even otherwise in a number of judgments the Tribunal as well as the apex Courts have disapproved the filing of misc. applications for condonation of delay after the main appeals/issues having been disposed off. In the reported judgment cited as 1981 SCMR 536 the Honourable Supreme Court of Pakistan in a similar situation held:--

"Since we have already dismissed the petitions against the main judgment, mere adding a prayer for leave to appeal against the order, dated 7-2-1977 read with judgment and order, dated 20-11-1975", would neither extend the period of limitation for the main petitions and nor would it affect that judgment or order otherwise. The main petitions in any case remain time-barred and their period of limitation could not be extended in the manner adopted herein."

In an other reported judgment cited as 1991 PTD 1056, the Honourable Lahore High Court Lahore held the view as under:--

"After hearing the learned counsel for the parties, we do not find that any question of law arises for determination by this Court. It stands established on the record that by the time the appeal had been received by the Income Tax Appellate Tribunal, it was barred by time. The fact that the petitioner had posted the appeal within time is of no consequence, as on no rational principle can the appeal be deemed to have been instituted on the day when it was posted. On the other hand, it cannot be doubted that the appeal is instituted on the day when it is presented or is received by the Tribunal.?????????? .

More importantly, the fact noticed is that although it was pointed out by the office of the Income Tax Appellate Tribunal to the authorize representative of the applicant vide letter, dated 1st of September, 1982 that the appeal was barred by four days, no application was filed by the applicant for condoning the delay nor any affidavit in support of the facts on the basis of which the limitation was sought to be condoned was filed. In these circumstances, the Tribunal was perfectly justified in refusing to condone the delay and dismissing the appeal before it as barred by the time."

6. Bare perusal of the supra two judgments leads to the irresistible conclusion that the date on which appeal papers were received by the Registrar/Assistant Registrar either through post or otherwise, would be considered the actual date of filing of appeal. Besides, the miscellaneous applications seeking condonation of delay could not be entertained after the main appeals have already been finalized. Even otherwise as per law the appellant was bound to explain delay of each day at the time of hearing of original appeals. The posting of appeals within time is of no consequence, because the law does not permit the Registrar/Assistant Registrar to consider the appeals received after the expiry of stipulated time that the same have been instituted on the .day when it was posted. Keeping all these facts in view as well as case law cited in support thereof we do not feel inclined to accept the misc. applications seeking condonation of delay in filing of appeals, the same stand rejected being devoid of any merit.

7. Since we have dismissed the miscellaneous applications seeking condonation of delay, the misc. applications seeking recall of Tribunal's order, dated 12-3-2005 have become infructuous, are also dismissed.

C.M.A./37/Tax (Trib.)????????????????????????????????????????????????? Applications dismissed.