COMMISSIONER OF INCOME-TAX/WEALTH TAX, FAISALABAD ZONE, FAISALABAD VS Messrs RASHID AHMAD, FAISALABAD, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 2345 (2006)

(a) Income Tax Appellate Tribunal Rules, 1981---

----R. 11(1) & (3)---Appeal---Certified copy of the order appealed against not annexed with memo. of appeal---Rejection of appeal by Tribunal---Validity---Discretion to accept or reject appeal filed without documents as mentioned in R. 11(1) of Income Tax Appellate Tribunal Rules, 1981 must be exercised by Tribunal judicially and not in an arbitrary manner---Tribunal in passing impugned order had not exercised discretion arbitrarily or in a fanciful manner---High Court dismissed reference application.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 rel.

(b) Discretion---

----Discretionary orders passed by subordinate Courts---Validity---Superior Courts would not interfere with such orders, unless found to be arbitrary and fanciful.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 rel.

Nemo.

ORDER

Commissioner of Income Tax/Wealth Tax, Faisalabad Zone, Faisalabad, has sought reference on the following question of law said to have arisen out of order, dated 24-9-1996, passed by the Income Tax Appellate Tribunal, in W.T.A. No.1745/LB of 1991-92 (Assessment years 1988-89).

"Whether on facts and circumstances of the case, Tribunal was justified to dismiss an appeal without going into merits of the case merely for lack of certified copies of orders appealed against?"

2. Facts necessary to answer the aforestated reference are that the department filed further appeal, before the learned Tribunal, with regard to the assessment year 1988-89, thereby challenging order, dated 11-12-1991, passed by the Commissioner of Income Tax, Appeal-II Faisalabad. The learned Tribunal, after finding that certified copy of the order, appealed against, had not been appended with the memorandum of appeal, as required under Rule 11 of Income Tax Appellate Tribunal Rules, 1981 (Rules), proceeded to reject the said appeal, vide order, dated 24-9-1996, hence the present reference.

3. None has entered appearance on behalf of the Revenue.

4. Rule 11 of Rules, inter alia, provides that every memorandum of appeal shall be accompanied by a certified copy of the order appealed against. Sub-Rule (3) of the said rule envisages that the Tribunal may, in its discretion, accept a memorandum of appeal, which is not accompanied by all or any of the documents referred to in this rule. It appears appropriate to reproduce Rule 11(3) of the Rules, which reads as follows:

Rule 11(3) "The Tribunal may, in its discretion, accept a memorandum of appeal which is not accompanied by all or any of the documents referred to in this rule."

It flows from the above that the discretion has been conferred upon the Tribunal, either to accept or reject a memorandum of appeal, which is not accompanied by all or any of the documents referred to in this rule. In the instant case, the learned Tribunal in its discretion, after finding that certified copy of the order, appealed against, is not annexed with the memorandum of appeal, proceeded to reject the memorandum of appeal. Undoubtedly, in view of the aforenoted Rule 11(3) of Rules, it lies within the discretion of the Tribunal either to accept or reject a memorandum of appeal, which was tiled without the documents, as mentioned in Rule 11(1). We find that the learned Tribunal has exercised its discretion in accordance with the recognized principles regarding exercise of discretion and it has not been exercised arbitrarily or in a fanciful manner. It is settled law that the discretionary orders, passed by subordinate Courts are not to be interfered with by the superior Courts unless those are found arbitrary and fanciful. Reference can be made to Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139).

5. In view of the above findings, we are of the view that in case any of the document to be filed with the memorandum of appeal, under Rule 11(1) of the Rules, is not filed by any of the parties, it is within the c discretion of the learned Tribunal either to accept or reject the memorandum of appeal without those documents including the certified copies of order appealed against.

6. The above referred question is answered in affirmative with the observation that discretion to accept or reject an appeal, for want of required document, must be exercised judicially and not in arbitrary manner.

S.A.K./C-30/LReference answered.