WHO WILL BELL THE CAT?

SECTION 129(5) & (7) OF I <!--[if gte mso 10]> SECTION 129(5) & (7) OF I.T ORD., 2001 WHO WILL BELL THE CAT? By Mrs. Huzaima Bukhari, Lahore Any person who is dissatisfied with any order passed by a Commissioner or a taxation officer can file an appeal under section 127 of the Income Tax Ordinance, 2001 (hereinafter "the Ordinance") before the Commissioner of Appeals against that order. In response the Commissioner (Appeals) is required to hear the contention of both the appellant and the Department, conduct any inquiry or obtain any information that is necessary for adjudicating the appeal. In case of appeal against an assessment order the Commissioner Appeals may make an order, (i) setting aside the assessment with directions for making a new order or (ii) confirming, modifying or annulling the assessment order. In any other cases he may make such order as he thinks fit and just. The process in appeal may take from a few weeks to many months, which is from date of filing appeal to date of release of decision by the Commissioner (Appeals). The time for disposal of appeal is directly related to a number of factors which are linked both to the department and the appellants. Sometimes the cause for inordinate delay is due to excessive workload on the Commissioner because of which he is unable to set an early date for hearing while in a number of cases it has been observed that the appellants themselves are responsible for the delay as they keep seeking adjournments. Then of course there are occasions when time is needed to concentrate on certain issues that crop up in appeal which must be thoroughly investigated and adjudicated upon in the light of existing precedents or after detailed inquiry or after taking into account history of the appellant's case. There is a famous saying that "justice delayed is justice denied." The more time lapses between filing of a petition and its final outcome, the less significant it becomes in terms of importance i.e. final determination of a taxpayer's financial obligation. In fiscal matters it is in the interest of Revenue itself to recover legitimate tax due as early possible, preferably within the tax year to which it pertains. The longer it takes to dispose of an appeal, monetary factors such as inflation and issues of cash liquidity creep in and future course of action is hinged onto uncertainty. On the other hand a quick decision helps to keep up the economic momentum steering cases through higher appellate forums or in case of reversion to the Department, securing a 'revised assessment order. Section 129 of the Ordinance relates to various facets of filing of first appeal before the Commissioner of Income Tax. It provides complete procedure of filing of appeal and how the Commissioner (Appeals) should dispose of an appeal. Section 127. mentions a time frame within which he ought to pass an order. The following two sub sections govern the limitation period: (5) Where the Commissioner (Appeals) has not made an order on an appeal before the expiration of three months from the end of the month in which the appeal was lodged, the relief sought by the appellant in the appeal shall be treated as having been given and all the provisions of this Ordinance shall have effect accordingly. (7) The provisions of subsection (5) shall not apply unless a notice by the appellant stating that no order under subsection (1) has been made is personally served by the appellant on the Commissioner (Appeals) not less than thirty days before the expiration of the period of three months. As is clear from above, the law lays down a period of three months within which a Commissioner Appeals must give his judgment. However, there are some conditions attached with time limitation that shift the burden on the shoulders of the appellant. They are that the appellant: 1. has not sought adjournments at his own belies as per subsection (6) of section 129; 2. has kept a track of time from the date of filing his appeal to thirty days before expiration of the three‑month period; and 3. has personally served a notice (in colloquial language ullama [complaint] or in other words, warning) on the Commissioner. By virtue of these conditions, the Commissioner has been absolved of his duty to utilize his staff for maintaining proper office record and streamlining the number of pending cases in his office in a way that they are properly and systematically disposed of. If the appellant, who is already aggrieved by the treatment meted out to him, is required to keep track of his appeal and to inform the Department within specified time that decision is due by such and such date then what is the justification for incurring expenditure on the Commissioner's staff? If the appellant is to file in person a notice of warning, why cannot he meet the Commissioner and obtain an appointment for hearing and get his appeal decided by a convenient time? Interestingly, despite the existence of these provisions, the occasions on which they have been invoked are non‑existent or ignorable. No one has dared to venture on the territory of the Commissioner (Appeals) to give him a timely notice of the fact that the clock is ticking and his period for decision is restricted despite the fact that it would be to the appellant's benefit if the appeal remained undecided. What, are they afraid of? They are afraid to incur the wrath of the Commissioner Appeals by daring to forewarn him because he may get offended and pass an adverse order. From the point of view of authorized representatives, it may mean losing clientage and from the taxpayer's, losing any chance of amenable relationship with the Department and who knows, one day the same Commissioner (Appeals) may become the Zonal Commissioner! These apprehensions are based on a long history of interaction between the tax collectors and taxpayers. Access to justice is the constitutional right of the citizens of this country and if the law provides for obtaining early justice then what prevents people from invoking this provision? But the question is, who will bell the cat and at what cost? -----------------