M.A. Nos.443/LB to 447/LB of 2006, decided on 1st December, 2006. VS M.A. Nos.443/LB to 447/LB of 2006, decided on 1st December, 2006., 2007 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 2224 (2006)

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

----S.135(2)---Disposal of appeal by Appellate Tribunal---Case was adjourned by clerk of Court/ministerial staff---Appeals were dismissed in default for non-appearance of assessee on the adjourned date---Application for recall of order---Validity---When Court was not held, the case was adjourned by clerk of Court/ministerial staff, it was not the date fixed by the Court itself, hence could not be considered an adjournment of the case by the Court---Miscellaneous applications were accepted and order was recalled whereby appeals of the assessee were dismissed for non prosecution---Appeals would be re-fixed and would be heard afresh on merit by the Appellate Tribunal.

PLD 1.964 SC 97 and 1983 SCMR 1092 rel.

Sajid Ijaz Hotiana for Appellant.

Ghazaufar Hussain,. D.R. for Respondent.

ORDER

SYED NADEEM SAQLAIN (JUDICIAL MEMBER).---The titled five miscellaneous applications pertaining to the assessment years 1993-94 to 1997-98 have been filed praying for recall of the combined order dated 25-4-2006 passed in W.T.As. Nos.578 to 582/LB of 2001.

2. The facts in brief are that the assessee preferred appeals for the year under consideration urging a number of grounds against invocation of section 17B of the repealed Wealth Tax Act; 1963 (hereinafter called the repealed Act). However, the said appeals were dismissed in default under section 135(2) of the Income Tax Ordinance, 2001 for non-appearance of assessee or his counsel. Before we proceed further, it is pertinent to mention here that, as a matter of fact wealth tax appeals were pending adjudication before the Tribunal but at the time of writing judgment the learned Division Bench mistook it and treated the wealth tax appeals as income tax: appeal, and mentioned in the title of the case, I.T.A. instead of W.T.A. Since this was an inadvertent mistake on the part of the learned Division Bench, we, while, taking suo motu notice do hereby direct to rectify the same so that it should be read as W.T.A. instead' of I.T.A.

3. On merit the learned A.R submitted that appeals were fixed before the tribunal for hearing on 25-4-2006 but no notice of hearing was served upon either the counsel of the assessee or the assessee himself. He explained that a junior of another Advocate who was also counsel in the present appeal informed the learned A.R. about the fixation of the case after having noticed that case was listed in the cause list pasted on the notice board on 25-4-2006. It was further stated that on getting this information, the learned A.R. rushed to the Tribunal but by that time the appeal had already been dismissed in default. It was also narrated that learned A.R. informed the Bench in the chamber that since no proper notice has been served upon the assessee, hence the appeals may kindly be adjourned instead of dismissing the same in default. The learned A.R. further submitted that the learned Division Bench announced that since appeals already stand dismissed in default, the learned A.R, can adopt legal course by filing miscellaneous application for recall of the said orders.

4. On the legal aspects, the learned A.R. submitted that on 15-3-2006 the learned A.R. was present and his attendance was marked as such, and the case was adjourned for 25-3-2006. It was argued by the learned A.R. that on 25-3-2006, no hearing took place because the learned Accountant Member was on leave and the case was adjourned for 25-4-2006. It was further averred that the said date was noted down by one of the A.R.'s junior colleague.

5. It was strenuously argued by the learned A.R. that if Presiding Officer of the Court is on leave and the next date of hearing is noted by the counsel of the party, it could not be considered valid service of notice under the law: The learned A.R, emphasized that when judicial officer is on leave and the case is adjourned for .another date by .the concerned officials/clerk of the Court, only that date will be considered as actual date of hearing which is given by the Presiding Officer after he resumes his office. In this regard reference was made to the following case-law cited as PLD 1964 SC 97 and 1983 SCMR 1092 (relevant page 1095). Summing up the case, the learned A.R. entreated that the learned Division Bench of the Tribunal misconstrued the law by invoking section 135(2) of the Income Tax Ordinance, 1979 to dismiss the appeals of the assessee in default.

5A. The learned D.R. on the other hand opposed the arguments advanced by the learned A.R. and prayed for rejection of the miscellaneous applications.

6. Before we embark upon dilating the issue involved in the present case, it would be very much pertinent to reproduce the facts of the cited (supra) case which has been relied upon by the learned A.R. As per facts borne out from the judgment cited above; an appeal was presented before the District Judge, Swat on 9-4-1976 who passed the following order on the same.

"Present: appellant in person. Notice to respondent and record for 9-4-1976."

On the said date the District Judge was on tour, however, the respondent appeared in Court and reader of the Court recorded the following note in he order sheet:--

"Counsel .for the appellant absent and the respondent present. The District Judge is on tour of Chakdara. The case adjourned for 8-9-1976. "

On 8-9-1976 the Presiding Officer was once again absent and the case was adjourned by the concerned clerk with the following note:--

"Present" Respondent in person and appellant absent. The Presiding Officer has gone to Malakand for judicial work and the case is adjourned for 16-9-1976."

However, on 16-9-1976 when the case came for hearing none of the parties appeared before the learned District Judge and in this situation he proceeded to dismiss the appeal for "non-prosecution".

The text of the order passed by him is as under:--

"Present" None of the either side. Dismissed for non-prosecution."

7. The application for restoration of the appeal was filed by the appellant which was also dismissed. The appellant in the said case also tailed to the revisional application before the High Court. Hence the matter went to the Supreme Court for determination. The apex Court decided the issue with the following observations:--

"There is no dispute that the appeal was adjourned to 16-9-1976 by the Moharrir (Reader) of the District Judge as the learned District Judge was absent on the .date which was fixed earlier. This Court in the case of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies (1) while discussing the provision of Order XVII, rule 2 of the C.P.C. while interpreting the words "the date of which the hearing of the suit is adjourned" observed that adjourned means "adjourned by the Court". Thus, the date 16-9-1976 -could only be the "date to which the hearing is adjourned, if the appeal had been adjourned to this date by the Court itself and not by the Moharrir (or the Reader). "

In these circumstances, we are of the view that the order of the learned District Judge dated 16-9-1976 to dismiss the appeal in his absence without duly serving him for the said date was void .and a nullity because the date 16-9-1976 could not be considered to be "the day when the appeal was called on for hearing". In these circumstances, no question of any limitation arose and the application for restoration of the appeal dismissed for non-prosecution should have been entertained and accepted and not dismissed as barred by time, especially when it was filed without any undue delay."

8. Having scanned through the facts of the supra cited case, we have no hesitation that the case referred to by the appellant is on all fours to the instant case. In the present case, too, case was adjourned for 25-3-2006 when the Court was not held due to the reason that one of the members of the Bench was on leave, therefore, the case was adjourned for 25-4-2006. On the next date of hearing i.e. 25-4-2006, which was also got noted down by one of the counsel of the .appellant, no one appeared on behalf of the assessee/appellants, therefore, case was proceeded ex. pare, accordingly dismissed for non-prosecution.

8A. There is no iota of doubt that on 25-4-2006 when the Court was not held the case was adjourned by clerk of Court/ministerial staff for 25-4-2006. Obviously, it was not a date fixed by the Court itself, hence could not be considered an adjournment of the case by the Court as observed by the Supreme Court of Pakistan in the judgment cited (supra) by the learned A.R.

9.. Following the ratio laid down by the august Court of Pakistan, we do hereby accept the miscellaneous applications filed by the learned A.R. and, resultantly recall our order dated 25-4-2004 passed in W.T.As. Nos.578 to 882/LB/2001 whereby appeals of the assessee were dismissed for non-prosecution. Appeals bearing W.T. As. Nos.578 to 882/LB of 2001 will be refixed and would be heard afresh on merit.

10. The miscellaneous applications succeed in the manner discussed above.

C.M.A./81/Tax (Trib.)Applications accepted.