COMMISSIONER INLAND REVENUE VS CRESCENT CARRIERS, 2017 PTD-LAHORE-HIGH-COURT-LAHORE 1387 (2017)

Income Tax Ordinance (XLIX of 2001)---

----S.177---Law Reforms Ordinance (XII of 1972), S.3---Limitation Act (IX of 1908) S.12 & Art. 151---Intra-court appeal---Limitation---Condonation of delay--- Grounds--- Scope--- Audit--- Appellant/ Commissioner Inland Revenue, sought condonation of delay of 37 days in filing of intra-court appeal, on the ground, inter alia, that the procedural constraints required permission to be sought from the Department, which caused delay---Validity---Said reason was neither cogent nor confidence inspiring and in time-barred proceedings, defaulting party must explain delay of each day caused in preferring valid proceedings in accordance with law and the same was not done in the present case---Sufficient cause must be shown by person seeking condonation of delay, which meant "circumstances beyond control of the party concerned", and nothing shall be deemed to have been done in good faith which was not done with due care and attention--- High Court observed that for purposes of limitation, Government (departments) could not be treated differently---Intra-court appeal being barred by time, were dismissed, accordingly.

Mst. Khajida Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 and Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307 rel.

Tariq Manzoor Sial and Agha Muhammad Akmal Khan for Appellant.

Malik Mumtaz Hussain Khokhar and Rana Muhammad Hussain, Assistant Advocate General for Respondent.

Date of decision: 24th April, 2017.

JUDGMENT

JAWAD HASSAN, J.---Through this single judgment we intend to decide the instant Intra Court Appeal as well as I.C.A. No.133/2013 and I.C.A. No.140/2013 along with applications for condonation of delay (C.Ms. No.2/2013) in all the appeals, as all the same are outcome of impugned judgments dated 11.02.2013 passed by the learned Single Judge passed in W.P. No.361/2013, W.P. No.360/2013 and W.P. No.329/2013 whereby the writ Petitions of the Respondents were allowed. All the Intra Court Appeals have been filed under Section 3 of the Law Reforms Ordinance, 1972, challenging the legality of impugned judgments dated 11.02.2013.

2.Brief facts of the Appeals are that the Appellant issued letter under Section 177(i) of the Income Tax Ordinance, 2001 (the "Ordinance") and requisitioned the books of accounts and relevant record for conducting of audit for the tax year 2011, against which the Respondents filed the above referred writ petitions which were allowed by the learned Single Judge vide the impugned judgments. Hence, all the abovementioned appeals.

3.At the very outset learned counsel for the Respondents raised objection regarding maintainability of all the appeals being time barred.

4.In reply thereto, learned counsel for the Appellant inter alia submitted that along with the main appeals, the Appellant has also filed application for condonation of delay in filing the appeal; that the learned Single Judge while passing the impugned judgments has not appreciated the material facts and law on record; that the impugned judgments have been passed in utter disregard of the relevant law; that the learned Single Judge has ignored the fact that before amendment of Section 177 of the Ordinance the Commissioner had the power under Section 177(i)(d) to select the case on the basis of any matter which in the opinion of the Appellant was material for determination of the correct income.

5.We have heard the arguments of the learned counsel for the parties and examined the record available with all the Appeals.

6.At the first instance, we would like to examine the question of limitation. It is pointed out that when the learned counsel for the Appellant was asked to first cross the hurdle of limitation as the impugned judgments were passed by the learned Single Judge on 11.02.2013 and the copies of judgments were delivered to the Department-Appellant on 16.02.2013 but all the above-mentioned appeals were filed on 27.03.2013 with a specific delay of 37 days, he informed that the C.Ms. No.2 of 2013 have been moved by the Appellant, with a request to condone the delay caused in filing of Intra Court Appeals with the prayer that in terms of procedural constrains the permission was to be sought from the Federal Board of Revenue for the purpose of filing all the Intra Court Appeals which directions were received and communicated to the counsel on 18.02.2013.

7.We examined the record which reflects that in the said applications no reason or justification has been extended by the Appellant justifying such delay in filing the Intra Court Appeals which are the sole basis of the prayer made in the Civil Miscellaneous Petitions for condonation of delay. The only ground/reason for condonation of delay mentioned in the Applications is that "in terms of procedural constrains the permission was to be sought from the Federal Board of Revenue for the purpose of filing all the Intra Court Appeals which directions was received and communicated to the counsel on 18.02.2013" which is neither cogent nor confidence inspiring to extend favour for condonation of delay.

8.The limitation provided for filing an appeal from a decree or order of a High Court in the exercise of its original jurisdiction is twenty days from the date of decree or order as provided under Article 151 of the First Schedule provided under section 3 of the Limitation Act, 1908.

9.The judgment passed by the learned Single Judge was delivered on 16.02.2013 but the instant appeals have been filed after a delay of 37 days. It is a settled position of law that in case of time barred proceedings, defaulting party must explain the delay of each day caused in preferring valid proceedings in accordance with law. Learned counsel for the Appellant has not been able to extend any cogent reason to be believed for condonation of delay, therefore, the delay of about thirty seven (37) days cannot be condoned mere on the applications of the Appellant. Furthermore, as per the C.Ms. No.2/2013 the counsel received directions/recommendations to file the appeals on 18.02.2013 by the Department, even then all the appeals have been filed on 27.03.2013 after about more than one month, which also show negligence on the part of the Appellant and for such delay no explanation has been extended in the said applications. Reliance in this regard can be placed on the case titled Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court 355) in which, while dealing with the question of limitation it has been categorically held that sufficient cause must be shown by the person seeking condonation of delay, which means "circumstances beyond control of party concerned" and that, nothing shall be deemed to be done in good faith which is not done with due care and attention. It is also settled law that for purpose of limitation Government cannot be treated differently. Reliance is placed on the case titled Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCMR 307).

10.We, therefore, adjudge, the delay in filing of ICAs would not become liable to be condoned, as the appellants have failed to show any sufficient reasons for condonation of such delay.

11.In view of above facts and circumstances, the applications for condonation of delay are dismissed, consequently the instant appeal as well as the above referred connected appeals, being badly time barred, are hereby also dismissed.

KMZ/C-12/L Appeals dismissed.