1980 PLP (Trib (PTD)

ABRAR HUSSAIN NAQVI (MEMBER)

‑These two Miscellaneous Applications have been filed on behalf of the assessee against certain remarks made by the Tribunal while disposing of the R. A. Nos. 52 and 52‑A of 1975‑76 vide their order dated 16‑5‑1978.

2. The brief facts relevant for the disposal of these applications are narrated below. Amongst other questions the assessee raised the plea before the Tribunal that she, having been married on 14‑1‑1971, to reknowned film Director, all her expenses were being borne by her husband and therefore the addition of Rs. 36,000 in each year, made by the officers below in her living expenses, were not justified. This plea of the assessee was not accepted by the Tribunal and while dealing with this issue made the following observation: "On this issue the learned counsel has not been able to satisfy us nor do the return made by the husband indicate that the amount avaiLahle to him was sufficient to meet these personal expenses of his wife. On this factual position, therefore, we are clearly of the view that the I. T. O.'s action in attributing the appellant's personal expenses to her own rescources is nut erroneous or unfounded." Consequently the appeals of the assesssee were dismissed so far as this issue was concerned. The assessee then made two Reference Applications R. A. No. 52 & 52‑A of 1975‑76 and the question of law sought to be referred by the Tribunal was as follows: "QUESTION Whether on the facts and in the circumstances of the case the Income. tax Appellate Tribunal was justified to uphold the amount of Rs. 36,000 as house hold and personal expenses of the assessee? These reference applications were also rejected by the Tribunal, on 16‑5‑1978. While arguing the reference matter before the Tribunal the main argument was based on an affidavit of the husband of the assessee which was not accepted on the ground that the said affidavit was not avaiLahle on the record of the Tribunal at the time of hearing of the appeals. This affidavit however seemed to be avaiLahle at the time of disposal of reference applications. The Tribunal therefore made certain remarks in regard to the existence of the affidavit which are reproduced below: "The stress is now being laid on the affidavit of the husband which appear to be misplaced, this affidavit neither finds any mention in the Tribunal's order nor it appears to have been made avaiLahle to the Tribunal at the time of hearing. There is no doubt that this affidavit is now on the records of the Tribunal but it appears to have been injected into the file surreptitiously.?

3. The learned authorised Representative non‑vehemently argues, that these remarks are disparaging against the character of the assessee as well as the counsel and therefore in these miscellaneous applications these remarks are sought to be expunged. The first question which arises for consideration before us is as to whether the Tribunal has jurisdiction to expunge the remarks. The learned A. R. contended that the Tribunal has inherent power; to correct its own records. Reliance was placed by him on the cases of (1973) 28 Taxation (Trib.) 14 and (1975) 32 Taxation

176. In case the tribunal while dealing with the question as to whether the Tribunal had jurisdiction to issue stay order, held that the Tribunal had inherent powers. In the latter case where an appeal was dismissed in default of appearance by the Tribunal the High Court hell that in the absence of any provision in the statute for the unforeseen events the Courts have inherent jurisdiction to decide the issue for the orderly dispensation of justice. Respectfully following these rulings of the Tribunal and the Peshawar High Court, we would hold that the Tribunal has inherent powers to deal with unforeseen events in a fit case and the expungment of remarks is included within such powers.

4. We would now take up the issue in question. In this context we have to first see as to in what circumstances the remarks could be expunged from a judgment of a Court or Tribunal. There are two leading cases on the subject, the first case is Malik Feroze Khan Noon v. State (P L D 1958 S C (Pak.) 333). In this, case the High Court passed certain remarks against Malik Feroze Khan Noon, the then Prime Minister of Pakistan, who was neither a party nor a witness to the proceedings. These remarks were expugned by Supreme Court and Amiruddin Ahmad, J., while agreeing with Chief Justice made the following observation:‑ "The offending remarks are an independent portion of the judgment and have no direct bearing on the conviction or the sentence and the Appellate Court in dealing with the appeal of the accused persons will have no difficulty on account of the expunction of the offensive remarks." The inference which could be drawn from the remarks of the Hon'ble Judge is that the offending remarks sought to be expunged should form an independent portion not affecting the findings in the operative part of the judgment. The other leading case is Sir Edward Snelson v. Judges of the High Court of West Pakistan (P L D 1961 S C 237). In that case while dealing with a contempt matter against Sir Edward Snelson the then Law Secretary to the Government of Pakistan, the High Court made certain observations, which were sought to be expunged by the appellant in the Supreme Court. While disposing of that case Cornelius, C. J., made the following observation in his judgment: ??????????? "It is not possible to urge that anything therein said is extraneous to the proper consideration of the matter before the High Court and in the main the complaint is of the severity of certain observations in particular as to the attitude of the Central Government. The case was of such a nature that to offer a total defence, however respectfully, but without any coating of regret was to invite stringency of language in its treatment and though it fray be said that some of the inferences drawn and certain of the comments made could have been expressed equally effectively with greater restraint yet. I do not see any occasion here for the exercise of the very extraordinary power of expudging passages from a judgment of a superior Court of Record and would therefore refuse these prayers." In the same ease S. A. Rehman,, J., in his judgment observed as follows: "In respect of the petitions for expunction of remarks, made on behalf of the appellant and the Central Government. It would be sufficient to say that the remarks in question are pertinent to the facts of the case and could not be said to travel beyond the purview of tile contempt proceedings and the conduct of the parties thereto . . . ." It was further observed by the learned Judge, they (remarks) contain observations on matters that fell for comment in the proceedings." In the same case Hamoodur Rehman, J., as he then was, made the following observation: "So far as the two applications for expunction of remarks are concerned I would also dismiss those applications for although some of those observation nations could have been avoided by the High Court of West Pakistan, I am not in a position to say that they were in the present case either wholly extraneous or not pertinent to the consideration of the matter before the High Court."

5. From the above quotations of the Supreme Court judgment two principles could be laid down for the expunction of remark. One is that the offensive remarks should form an independent portion of the judgment and have no direct bearing on the disposal of the main case. The second; condition is that the impugned remarks should be extraneous and impertinent for the consideration of the matter in issue. Now applying these principles on the facts of the present case we find that the main argument addressed before the Tribunal in the reference applications was, that certain piece of evidence namely the affidavit, was left out of consideration by the Tribunal while disposing of the appeals. Therefore in order to dispose of reference applications the Tribunal was bound to give a finding in regard to the affidavit. The finding of the Tribunal was that the affidavit was left out of consideration not because it had escaped the notice of the Tribunal but because it was not avaiLahle on the file while disposing of the appeals. It was in this context that the offensive remarks complained against were made by the Tribunal. Looking from this angle, therefore, the impugned remarks were not only relevant but are part and parcel of the finding of the Tribunal. These remark could not be regarded as extraneous to the matter in issue not they form as a separate passage independent of the finding of the Tribunal and this being so these remarks can not be expunged. It may be noted that the inherent powers do not empower a Court of a Tribunal to review its own judgment. In the present case the impugned remarks could only be expugned if the judgment of the Tribunal is open to review, since there is no such power with the Tribunal these remarks cannot be expunged without affecting the finding of the judgment of the Tribunal itself. It may not also be out of place to mention here that even otherwise the applications are misconceived there is no cause of grievance or the cause of action. The remarks are not directed against any individual much less the assessee or her counsel. The remarks are general in nature and it is only be far‑fectehed implication that it could be said that they are directed against the assessee. For the foregoing discussion we would dismiss these Miscellaneous applica?tions on the ground that the impugned remarks being part and parcel of the judgment of the Tribunal cannot be expunged without reviewing the judgment itself. Applications dismissed.