M.As. Nos. 902/LB and 903/LB of 2006, decided on 2nd March, 2007. VS M.As. Nos. 902/LB and 903/LB of 2006, decided on 2nd March, 2007.
2007 P T D (Trib.) 1919
[Income-tax Appellate Tribunal Pakistan]
Before Jawaid Masood Tahir Bhatti, Judicial Member and Khawar Khurshid Butt, Accountant Member
M.As. Nos. 902/LB and 903/LB of 2006, decided on 02/03/2007.
Income Tax Ordinance (XLIX of 2001)---
----S. 132(2)---Disposal of appeals by Appellate Tribunal---Opportunity of being heard---Application for recalling order dismissing the appeal for non prosecution along with request for condonation of delay in filing such application for recalling the order---Validity---Appeal filed by the Department had been dismissed in default for prosecution under S.132(2) of the Income Tax Ordinance, 2001 according to which, it had been specifically provided that the Appellate Tribunal shall afford an opportunity of being heard to the parties to the appeal and in case of default by any of the party on the date of hearing, Appellate Tribunal, may, if it deemed fit, dismiss the appeal in default or may proceed ex parte to decide the appeal on the basis of available record---Appeal having not been disposed of proceeding ex parte on the basis of available record, the basic right of being heard an affording of opportunity of being heard could not be denied to any party---Order of Appellate Tribunal was recalled, the appeal filed by the Department was directed to be placed at its original number and to be fixed for hearing after issuing notices to both the parties---Applications were allowed by the Appellate Tribunal.
Writ Petition No.505 of 2004 ref.
1981 SCMR 37 distinguished.
Sabiha Mujahid, D.R. for Applicant.
Javed Altaf for Respondent.
ORDER
These two Miscellaneous Applications have been filed by the applicant Department. One has been filed requesting for recalling the order of this Tribunal, dated 27-7-2006 in I.T.A. No. 3374/LB of 2005 (Assessment year 2000-2001) dismissing the appeal filed by the Department for non-prosecution under subsection (2) of section 132 of the Income Tax Ordinance, 2001. While the second application has been filed requesting for condonation of delay in filing Miscellaneous Application for recalling the order referred supra.
On behalf of the applicant Department, the learned DR has submitted that on the date of hearing of the main appeal on 27-7-2006, the learned DR could not reach and attend the proceedings of the appeal, as her car became out of order and she was prevented by reasonable cause to appear before this Bench on the said date of hearing. Regarding the request for condonation of delay, it has been requested that although the order of this Tribunal, dated 27-7-2006 was received in the Office of the Commissioner on 15-8-2006 and the Miscellaneous Application for recalling the said order was to be filed within 30-days i.e. up to 14-9-2006, but due to intra departmental correspondence among the Commissioner and RCIT, application could not be filed within time. It has been requested that delay for filing in Miscellaneous Application in
the instant case may very kindly be condoned. The learned DR has further contended that Hon'ble High Court vide order, dated 11-5-2004 in. Writ Petition No.5051 of 2004 has set aside the order passed by this Tribunal with the observations as under:--
" ..Tribunal of special jurisdiction cannot dismiss a lie for default in appearance. In case the petitioner had failed to turn up it was for the Tribunal to give a decision on the merits of a case..."
On the other hand, the learned counsel for the assessee/respondent is opposing both the Miscellaneous Applications filed by the Department. Regarding the Miscellaneous Application for recalling the order, it has been contended that there is no reason for recalling the order, as on behalf of the; Department, no sufficient cause has been mentioned for non-appearance. He has contended that due to advancement in modes of communication and electronic media, everyone is having the mobile phones, fax and telegram facility which are available in urban as well as remote areas and as in the Tribunal, there are many Departmental Representatives, representing the Department and so if there was any problem, any other Departmental Representative may be asked to make request before the Bench regarding non-appearance. Regarding the condonation of delay in filing the Application, the learned counsel for the assessee has contended that Hon'ble Supreme Court of Pakistan in a case reported as 1981 SCMR 37 has held that "Time spent on such deliberation cannot be excused and even the Government cannot claim to be treated in any manner differently from an ordinary litigant". In this judgment, the Hon'ble Supreme Court has further observed that "it has been repeatedly laid down that so far as the limitation is concerned, the Government cannot claim to be treated in any manner differently from an ordinary litigant. In fact, the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger than those possessed by ordinary litigants. If in spite of these facilities the Government cannot comply with the requirement of law of limitation, then it is for it to take steps to have that law changed".
We have heard the learned representatives from both the sides and have also perused the order of this Tribunal, dated 27-7-2006, the cases referred from both the sides and other relevant record of the case.
We are of the view that the appeal filed by the Department has been dismissed in default for prosecution under subsection (2) of section 132 of the Income Tax Ordinance, 2001 according to which, it has been specifically provided that this Tribunal shall afford an opportunity of being heard to the parties to the appeal and in case of default by any of the party on the date of hearing, the Tribunal may, if it deemed fit, dismiss the appeal in default or may proceed ex parte to decide the appeal on the basis of available record. As in the instant case, the appeal riled by the Department has not been disposed of proceeding ex parte on the basis of available record we are, therefore, of the view that basic right of being heard and affording of opportunity of being heard cannot be denied to any party. We are therefore, of the view that to the extent of present case the above referred decision of the Hon'ble Supreme Court is distinguishable. The order of this Tribunal, dated 27-7-2006 in the above referred appeal is, therefore, recalled and the appeal filed by the Department is .directed to be placed at its original number and to be fixed for hearing after issuing notices to both the parties concerned.
Both the Miscellaneous Applications filed by the Department are allowed.
C.M.A./50/Tax (Trib.)Applications allowe