1973 PLP 511 (PTD)

8. It undoubtedly looks very strange as to why an order under section 45 was not made till 4‑4‑1973, he., the date of the filing of the Writ Petition No. 710/73 but the allegations of mala fide and that this was an after thought have been denied in trio written reply submitted by the respondents. I do not consider It necessary to go into the controversial facts because these petitioners are liable to be accepted on a legal ground.

9. Lengthy arguments on the question that adequate oppor tunity of hearing before an application under section 45 is refused, is necessary, have been addressed. Relevant provision in section 45 reads as follows :‑ "

45. Any amount specified as payable in a notice of demand under subsection (3) of section 23‑A or under section 29 or an order under section 3 or section 33, shall be paid within the time, at the place and to the person mentioned in the notice or order, or if a time is not so men tioned, then on or before the first day of the second month following the date of the service of the notice or order, and any Assesses failing so to pay shall be deemed to be in default. provided that, when an assessee has presented an appeal under section 30 or clause (a) of subsection (1) of section 33, the Income‑tax Officer may subject to the provision of section 45‑A, in his discreotion treat the assesses as not being in default as long as such appeal is undisposed of . . . . . . : ' Sh. Abdul Haq, learned counsel for the respondents was permitted by me to open the arguments. The learned counsel vehemently contended that on the face of it section 45 does not contemplate any right of hearing. According to him this position has been accepted in the Indian High Courts. He has cited, what he thought was their latest view to Amar Nath Khurara & Sons v. Appellate Assistant Commissioner of Income tax and another ((1971) 23 Taxation 175) a case from Punjab & Haryana High Court). He also contended that if the Legislature had intended a right of hearing to the applicant under section 45, the same would have been provided therein. Absence of such a provision, according to him, strongly supports his view because wherever the framers of the law intended a right of hearing, it was so provided in the Income‑tax Act. One such provision is section 31 thereof, which provides for the manner of hearing of appeal by the Appellate Assistant Commissioner. He argued that the original order, of course, subject to the decision in appeal has in any case, to be complied with by the asseesee, therefore, refusal of application under section 45 would not place him in any worse position than he would be without any such application and/or decision thereon. In other words, according to him, as the order under section 45 is in its very nature, not going to Affect the liability of the assessee to pay the amount due, therefore, he has no right of hearing. And, lastly, he contended that the section in so many words gives discretion to the Income tax Officer to decide whether the assessee is not "in default"; therefore, for this reason also, the exercise of discretion against the assesses even without affording him an opportunity of hearing, would not entitle him to seek any relief from this Court in writ jurisdiction. He, however, agreed that if the applicant specifically requests to be heard, the consequences would be different.

10. Mr. Mumtaz Hussain, learned counsel for the petitioner in Writ Petition No. 710/73, relying on Commissioner of Income tax, Fast Pakistan v. Fazalur Rahman (P L D 1964 S C 410) argued that the only circumstance that technically so‑called adverse order is not to be passed against an assessee under section 45 or absence therein of any provision qua right of hearing would not deprive him of this right. With regard to the case‑law in Indian jurisdiction, he contended that the principle of natural justice contained in the rule audi alteram partem, has not been correctly interpreted and applied in the Indian cases. However, according to him even In some Indian cases a different view has been adopted. He has in this connection cited Vetcha Sreeramamuthy v. The Income‑tax Officer. Vizianagaram and another ((1966) 30 I T R 252) (a case from Andhra High Court) and Yousaf Jan Sahib v. Additional Income‑tax Officer, Quilon ((1961) 4 Taxation 308) (a case from Kerala High Court). He contended that the Board of Revenue whose directions and instructions are binding on the Income‑tax Officer by virtue of section 5(8) of the Income‑tax Act, have given sufficient guidelines for the Income‑tax Officers and a departure therefrom would, according to him, nullify the orders passed under section

45. The latest instructions are printed in "Taxation" Special Number, 1971 at page 568, sub‑head No. 2, "Time for payment of tax till disposal of appeal". He also cited Pakistani and English case‑law in support of his further contention that an order passed in arbitrary exercise of discretion can be challenged in writ jurisdiction of the High Court. The only case cited by him in this behalf on law of Income‑tax apart from the Supreme Court ruling already noted, is Commissioner of Income‑tax; Dacca v. Messrs Asiatic Industries Ltd., Dacca (P L D 1964 Dacca 769).

11. Mr. Muhammad All, learned counsel for the petitioners In Writ Petition No. 721 contended that section 3 of the Income tax Act is the charging section bat the same is subject to the other provisions of the Act. According to him the charge shall not be complete till the conclusion of all the proceedings including those of appeal; therefore, section 45 when in terpreted in the light of the above main scheme of Income‑tax would not permit the Income‑tax Officer to deem an assessee a defaulter except, of course, in matter of undisputed demands, till the decision of the appeal. He also compared provisions under sections 45‑A, 46, 46‑C and 67, to highlight the distinction between 'failure to pay' and 'unable to pay' and contended that the question of mens tea in deciding the cases on default would be relevant and unless the assessee is afforded an opportunity of hearing, it may not be possible for the Income tax Officer to exercise the discretion under section 45 In a proper manner. And, lastly he pointed out that in the application filed by his clients under section 45, specific prayer for opportunity of hearing a as made; and despite that the same has been refused without consideration of the grounds stated therein or giving any reasons for refusal.

12. Before I_ examine the arguments It is necessary to state that in both the petitions, the orders passed under section 45 do not show that the grounds urged in the applications were considered nor it appears that the guidelines laid down by the Board of Revenue for the disposal of such applications were kept in mind while refusing the request under section 45.

13. Most of the questions involved in these cases stand resolved by the ruling of the Supreme Court in the case of Fazal-ul‑Rehman cited above. Even though the exercise of jurisdiction In the case before their Lordships was under section 33‑A of the Income‑tax Act, yet the main arguments advanced by the learned counsel for the respondents in these cases were examined by their Lordships and repelled. There is no provisions in section 33‑A for opportunity of hearing before an order is passed thereunder. Same is the case with section

45. At pages 415‑16 of the report, their Lordships were pleased to observe, in this behalf, as follows :‑ "it is urged that the existence of a provision for notice in section 31 and its absence in section 33 should lead to the Inference that notice of the hearing of the application under section 33‑A to the applicant was not needed. The logical result of the acceptance of this argument should be that notice of hearing should never be necessary unless it is specially provided for because if this argument be valid by comparison of two sections of the statute it should also be valid by comparison of provisions in different statutes on the ground that the Legislature when it intends notice makes an express provision. We do not thick the mere absence of a provision as to notice can override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing to that party. A reference to provisions in other statutes will show that the existence of a provision of notice as to one proceeding has not been accepted as an argument against the need of notice in the case of a proceeding with respect to which there is no express provision of notice. Under the Criminal Procedure Code there is a distinct provision in the case of an appeal for notice of hearing to the appellant, but there is no such provision in the case of a revision petition in the High Court. It cannot be urged however, that the right of hearing in a revision petition has thereby been excluded. In the Civil Procedure Code similarly there is a provision in Order XLI, rule 22 directing notice of the hearing of appeal to be given to the appellant and there is no such provision with respect to a proceedings under section 115, C. P. C., yet ft cannot be said that it is not necessary to hear the parties affected in a proceeding under section 115, C. P. C. The fact that the proceedings are judicial or quasi‑judicial fn nature is sufficient to entitle a party to a hearing in the absence of a specific provision to the contrary. At the same time it should be pointed out that the right to be heard is not confined to proceedings which are judicial in form. As has been held by this Court in The Chief Commis sioner, Karachi v. Mrs. Dina Sohrab Katrak the maxim "no man shall be condemned unheard" is not confined to Courts but extends to all proceedings, by whomsoever held which may affect the person or property or other right of the parties concerned in the dispute, P L D 1959 S C (Pak.) 45 and the maxim will apply with no less force to proceedings which affect liability to pay a tax. We hold that an opportunity of hearing was essential and in its absence the order of the Commissioner of Income‑tax is void." Earlier on page 415, their Lordships noticed the argument that under section 33‑A no adverse orders can be made against the assessee. After referring to the various Implications of such an order, their Lordships were pleased to repel the argument. It was observed as follows :‑ "The argument put forward on behalf of the Commissioner of Income‑tax namely that because an order cannot be passed against the assessee therefore the proceedings are not judicial is not supported by any authority or any principle of interpreta tion. The fact that a Tribunal cannot pass an order of a particular kind does not necessarily involve that the proceedings which would otherwise be judicial cease to be so. Tae High Court sitting in revision under the Criminal Procedure Code against an order of acquittal cannot pass an order of conviction." Respectfully relying on the ruling of our own Supreme Court in this behalf I repel the argument of the learned counsel for the respondents that section 45 does not contain any provision as to right of hearing and that the impugned orders passed there under would not put the assessee in a worse position. This also disposes of his argument that unless opportunity of hearing is claimed it is not the duty of the Income‑tax Officer to send any notice.

14. Before I proceed on to another aspect in this case, it is necessary here to point out that the Indian case (cited by the learned counsel) from Punjab & Haryana High Court also, does not support his above repelled arguments in any manner. If at all, it might support his other argument that it being a matter of discretion the High Court would not interfere in its writ jurisdiction. On the contrary, the case from Andhara High Court cited by the learned counsel for the petitioners supports the view that if the Income‑tax Officer while passing an order under section 45 has given no reason at all for rejecting the application of the assessee, he may be required to take up the consideration of the application and dispose It of "giving the assessee an opportunity to be heard and giving "reasons for his decision". Similarly, it was observed that the writ would not issue if the decision has been given honestly on merits provided the proceedings have been conducted with fairness and Impartiality and "the assesses has been given an opportunity of being heard.

15. The argument of the learned counsel based on the so‑called concept of "exercise of discretion" which was in a way adopted in the case from Punjab & Haryana High Court, is not at all tenable. The ruling of our Supreme Court in Fazal‑ur- Rehman's case is a complete answer !n this behalf also. Their Lordships discussed the nature of the orders passed by the Income‑tax authorities in such like situations and held that the proceedings are of judicial nature. The Dacca case (P L D 1964 Dacca 769) cited by the learned counsel for the petitioners, has dealt, in detail, with the question of 'exercise of discretion' tender section

45. It was held that if is is exercised in an arbitrary and capricious manner and/or is not judicious, the order would be liable to be set aside in writ jurisdiction. It cannot be urged nor accepted that merely because it is discretionary with the Income‑tax Officer not to give relief under section 45, therefore, he has no duty to pass the order in a lawful manner. And undoubtedly lawful manner in such like matter would include an opportunity of hearing to the applicant. I, therefore, repel the argument of the learned counsel.

16. The argument that an order under section 45 refusing the relief to the assessee is really no order "against him" and does not place him in any "worse position", is not acceptable for many reasons. It is not a matter of any technicality. In this behalf what is necessary to see is whether the said order would be prejudicial to the interest of the assessee. If an order without opportunity of hearing affects the person or property or other right of the party concerned in the matter then, as held in Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) the decision in the proceedings would amount to nega tion of the maxim "no man shall be condemned unheard". I agree with the proposition that under the scheme of the Income‑tax Act, right of appeal is substantial and valuable. The charging provision (section 3) itself is subject to the other provisions of the Act which undoubtedly would include the provisions relating to appeal. The difficulties in matters of stay have been pointed out in another Dacca case Commissioner of Income‑tax, Dacca v. Baijunath Prasad Mahadeo Prasad (P L D 1964 Dacca 765). In the case from Andhara High Court already noted above, certain suggestions for amendments of the relevant law were also made. During the pendency of appeal, leaving aside the question of undisputed liability, the question of the stay of recovery of the disputed amount, it very vital in so far as the interests of the assessee are concerned. If the relief is refused certain prejudicial consequences would follow. They are: levy of penalty; attachment and sale of movable and Immovable property; arrest and detention in prison; appointment of receiver qua other property; and ultimately the recovery as arrears of `land revenue' which expression by Itself implies so many similar coercive measures. In this behalf it is necessary to be noticed that once aft order under section 45 is pawed against an assessee, the same not being appealable, it is doubtful whether he would have any other substantial remedy or relief till the decision of the appeal against the original assess ment. And if the Dacca view in the case of Baijunath Prasad Mahadeo Prasad is kept in view, even if the assessment sub sequently is set aside in appeal, the penalty imposed for default would remain unaffected. It may be mentioned here that it is not necessary in this case to make any further comments on this view of the Dacca High Court and It should not be deemed to haw) been accepted by this Court as the binding interpretation of relevant provisions of law. Reference to it made above, Is only to spot‑light some of the consequences of departure from principles of natural justice in deciding applications under section

45. It is significant to note here that a similar provision exists In Criminal Procedure Code i e. section 426(2) (a), wherein a convict accused of an offence when sentenced to imprisonment by a Court can apply, under certain conditions, to the same Court which convict him, for suspension of the sentence and his release on bail pending the filing of appeal. It would not be possible to imagine that such an application can be refused without affording an opportunity of hearing to the applicant. The consequences of refusal of such an application or an applica tion tinder section 45 are not much different. Under the one the applicant would be straightaway sent to prison to serve his sentence while under the other he (the applicant) would be liable to suffer in property as we'1 as in person. It is not difficult to analyse and find out the rationale or the underlying principles of such an opportunity for getting suspension or stay order from the Court/authority passing the original order which is or has to become subject‑matter of appeal. When Legislature thinks that the non‑compliance with the original order might not be seriously prejudicial to the interests of the State or society, but It might seriously affect the rights of the party concerned It sometimes alloys, under certain conditions, further opportunity to it to point out to the authority/Court passing the order that the same is defective and it to be set aside in appeal for good reasons (legal or factual); and thus the authority/Court in this manner is also afforded a chance to remedy the prima facie wrong by staying the implementation of its own order. On the one hand the purpose is to stop perpetuation of a prima facie wrong and on the other to relieve tine party of undue and avoidable hardship. If is not possible for me to accept that In such an important matter where the authority/Court is Itself to be convinced/satisfied about the prima facie strength of an alleged defect in its own order, the party affected has no right of hearing. For these reasons also I am of the view that section 45 does not clothe an Income‑tax Officer with such power as to reject an application thereunder without affording an opportunity C of hearing to the assessee who by such an order would definitely be prejudicially affected in his valuable rights.

17. The above principles, it appears were kept In view by the Board of Revenue while Issuing directions as to the manner in which the jurisdiction under section 45 is to be exercised. D It would be of advantage to reproduce the original direction (Income‑tax Manual, 1955, page 227). It reads as follows :

"Sections 45, 46 and 47.‑These sections deal with the procedure for recovery of tax and penalty. Failure to pay the tax or penalty specified in a notice of demand by due date will make the person liable to be "deemed to be in default", the only exception being where (1) either the person has presented an appeal, (2) or the assessee has been assessed in respect of income arising outside Pakistan in a country the laws of which prohibit or restrict the remittance of money to Pakistan. In the former case, if the Income‑tax Officer is satisfied that the appeal involves a really contentious issue. he will in exercise of his discretion under section 45, postpone the collection of the disputed portion of the tax and require the assessee to pay only the undisputed portion of the tax." Sane instructions were repeated subsequently In a slightly different form and are printed at page 568 of 'taxation' (Special Number, July 1971), which are as follows :‑- "Time for payment of tax till disposal of appeal‑It was next urged that the amount of disputed tax should not be made payable immediately after the assessment. It should be kept in abeyance till the disposal of appeals. Tile Board thinks that while it is not possible to hold the collection of tax in abeyance in each and every case till the decision of appeal where, an important point of law or accounts is involved, or where the assessee is in real financial difficulties, the assessee should be allowed to pay the tax in instalments, or the collection of the disputed amount of tax may be hold in abeyance till the decision of the appeal." It is not the case of any of the parties that these instructions have been cancelled. A proper analysis thereof, would show that the Board of Revenue considered an adverse order under section 45 as of vital importance to the assessee in so far as his rights are concerned. If an assessee files an appeal, his application for stay, it is contained in these instructions, shall be decided as follows :‑ (i) If the Income‑tax Officer is satisfied that the appeal involves a contentious issue, he will exercise his discretion under section 45, in postponing the collection of disputed portion of the tax and would insist on the payment only of undisputed one ; (ii) It is not necessary to hold the collection of tax in abeyance in each and every case till the decision of the appeal ; (iii) But where (a) important point of law, or (b) accounts, is involved or (c) where the assessee is in real financial difficulties, he would either be allowed to pay the tax in instalments or the collection of the disputed amount of tax may be held in abeyance till the decision of the appeal ; (iv) The second alternative visualised In No. (iii) above is intended normally to be applied in categories (a) and (b), i.e., where 'important point of law' or 'accounts' are involved J while the facility of instalments is primarily intended for an assessee who is in real financial difficulties. No arguments were addressed by the learned counsel for the respondents on the question that under subsection (8) or section 5 of the Income‑tax Act, the above directions of the Board of Revenue shall be observed by all officers and persons employed in the execution of the Act. In my view a clear and deliberate departure from these instructions, leaving aside the question of legality, would definitely amount to an arbitrary exercise of discretion. In this very connection it was observed in the Dacca case (P L D 1964 Dacca 769) that ; "if he (Income‑tax Officer) had looked into provisions of the Income‑tax, Manual, certainly he would have noticed that the extent of his power to realise the tax was limited only up to the undisputed portion of the assessed amount of tax and it was his duty to postpone the collection of the disputed portion of the tax". I would, however, clarify and add that in view of the subsequent instructions of the Board of Revenue, as discussed above the postponement of the collection of the disputed portion of the tax (on the basis of the said instructions) would have to be in accordance with the conditions laid therein. In this case, these instructions have not at all been followed by the respondents while passing orders under section 45 of the Income‑tax Act ; therefore, apart from other reasons, these orders cannot be held to have been passed in a lawful manner and are liable to be set aside on this ground as well.

18. Both these petitions (Writ Petitions Nos. 710 and 721 of 1973) are accepted, the impugned orders are illegal and are declared and held to be without lawful authority and of no legal effect and are accordingly set aside. This however would not imply that the officers concerned in these cases have no power at all to pass lawful orders ; therefore, it is further declared that the respective applications under section 45 of the Income‑tax Act in both the cases, shall be deemed to be pending before them which shall be decided afresh in accordance with law. There shall be no order as to costs. Petitions accepted.