COMMISSIONER OF INCOME TAX/WEALTH TAX, COMPANIES ZONE-III, LAHORE VS Messrs IDARA-I-KISSAN, LAHORE, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 2569 (2006)

(a) Practice and procedure---

----If law prescribes a particular manner and procedure in which things are required to be, the same must be done in that way or not at all.

PLD 1997 Lah. 692; PLD 1997 Lah. 1 and PLD 1999 Pesh. 33 rel.

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

---S.136---Income Tax Appellate Tribunal Rules, 1981, Rr.10 & 15---Return of memorandum of appeal---Scope---Phrase "may return it to the appellant"---Effect---Appeal filed by Authorities was not framed and drafted according to the provisions of R.10 of Income Tax Appellate Tribunal Rules, 1981---Tribunal dismissed the appeal being vague and not in accordance with the Rules-Plea raised by the Authorities was that if memorandum of appeal was not in conformity with Income Tax Appellate Tribunal Rules, 1981, the same should have been returned to them---Validity---Words "may return it to the appellant" signified that Registrar had the option either to fix the appeal before Bench or return it to appellant for re-filing after bringing the appeal in conformity with the Rules---Authorities made no effort to see whether appeal was filed according to the Rules or not---Appeal was fixed before Bench and met the consequence of rejection/dismissal being not in conformity with the Rules---Registrar was vested with the power to return appeal and if it was not returned, it came up for hearing before the Tribunal---Powers under R.15 of Income Tax Appellate Tribunal Rules, 1981, vested with the Registrar and not with the Tribunal to return memorandum of appeal---Tribunal had rightly rejected the appeal on the ground that the appeal was not, in conformity with the Rules---No illegality or infirmity in the order passed by Income Tax Appellate Tribunal having been found---Appeal was dismissed by the High Court in circumstances.

Safdar Mehmood for Appellant.

ORDER

By this single order we propose to decide Income Tax Appeal No.385 of 1998 titled "Commissioner of Income Tax/Wealth Tax v. Idara-i-Kissan", Income Tax Appeal No.386 of 1998 titled "Commissioner of Income Tax/Wealth Tax v. Idara-i-Kissan"; Income Tax Appeal No. 387 of 1998 titled "Commissioner of Income Tax/Wealth Tax v. Idara-i-Kissan", Income Tax Appeal No. 388 of 1998 titled "Commissioner of Income Tax/Wealth Tax' v. Idara-i-Kissan" and Income Tax Appeal No.389 of 1998 titled "Commissioner of Income 'Tax/Wealth Tax v. Idara-i-Kissan" as common questions of law and fact are involved in all these five appeals.

2. The assessee is a Society registered under the Societies Act, 1860, for the purpose of improving dairy productions. The respondent being a charitable institution claimed exemption in respect of assessments for the years 1990-91 to 1994-95. Claim of exemption of the respondent was not accepted by the Assessing Officer. The order of the Assessing Officer was maintained in appeal before the Commissioner of Income Tax/Appellate Authority. The partial relief was, however, allowed with regard to the disallowance of profit and loss accounts. The Revenue challenged the order to the extent of relief granted by the Commissioner of Income Tax/Wealth Tax Appeals Zone-III, Lahore. Memorandum of appeal was not framed and drafted according to the provisions of Rule 10 of the Income Tax Appellate Tribunal Rules, 1981. Memorandum of appeal was lacking the necessary information of setting forth concisely under distinct head the specific grounds of appeal in a narrative manner. Learned Income Tax Appellate Tribunal considering the grounds of appeal being vague and not in accordance with the Rules ibid, rejected the appeals vide order dated 4-5-1998. Hence these appeals.

3. Appellant through the instant appeals has raised the following questions of law statedly having arisen out of the judgment of the Income Tax Appellate Tribunal:-

"(1) Whether on the facts and in the circumstances of the case the learned Income Tax Appellate Tribunal was justified to dismiss departmental appeal only for the reason that the grounds of appeal framed do not comply with the provisions of Rule 10 of the Income Tax Appellate Tribunal Rules, 1981?

(2) Whether on the facts and in the circumstances of the case the learned Income Tax Appellate Tribunal was justified to dismiss the departmental appeal for violating rule 10 of the Income Tax Appellate Tribunal Rules, whereas the procedure prescribed under rule 15 of the Income Tax Appellate Tribunal Rules was not followed by it at the time of presentation of the memorandum of appeal?"

4. Learned counsel for the appellant has contended that in case the memorandum of appeal was not in conformity with the Income Tax Appellate Tribunal Rules, 1981 the right course was to return the memorandum of appeal to the appellant with the permission to bring it in conformity with the Rules. The learned Appellate Tribunal has illegally proceeded to reject the appeals without granting the appellant opportunity in terms of Rule 15 of Income Tax Appellate Tribunal Rules, 1981.

5. Heard learned counsel for the appellant and examined the record.

6. It is settled law that if the law prescribes a particular manner and procedure in which the things are required to be done, the same must be done that way or not at all. If any case-law is needed, reference can be made to the cases of PLD 1997 Lah. 692, PLD 1997 Lah. 1 and PLD 1999 Pesh. 33. Admittedly in the instant case the memorandum of appeal is not in conformity with Rule 10 ibid. Rule 15 provides for return of the memorandum of appeal for refiling the same after bringing it in conformity with the provisions of these Rules within such time as may be fixed. Rule 15 empowers the Registrar or such other Authorized Officer for returning of appeal to the appellant or any authorized representative, if any, to bring it in conformity with the provisions of the Rules. The word used is "may return it to the appellant" which signifies that the Registrar has the option either to fix the appeal before the Bench or return it to the appellant for refiling after bringing the appeal in conformity with the Rules. The appellant has made no effort to see whether the appeal is filed according to the Rules or not. It was fixed before the Bench, and met the consequence of rejection/dismissal being not in conformity with the Rules. The Registrar is vested with the power to return the appeal and if it was not returned, it came up for hearing 13 before the Tribunal. The learned Bench of ITAT rejected the appeals. The powers under Rule 15 vests with the Registrar and not with the Tribunal to return the memorandum of appeal. The learned Tribunal has rightly rejected the appeals on the ground that the appeals were not in conformity with the Rules. We do not see any illegality or infirmity in the impugned order. The aforementioned questions of law are answered accordingly. All the five appeals are dismissed as such and the proposed questions are answered accordingly.

M.H./C-34/LAppeals dismissed.