2003 PLP 1968 (MLD)

(vii) Prayer for condonation should be granted, if petitioner is not contumacious. (viii) In revenue matters, prayer for condonation by an assessee/tax payer should all the more be considered sympathetically and objectively. Controller, Land Acquisition v. Mst. Katiji and others (1987) 56 Tax 130 SC (Ind.) fol. Asghar Ahmed Kharl for Petitioner. Muhammad Ilyas Khan for the Revenue. The revision filed by the petitioner under section 138 of the late Income Tax Ordinance, 1979 was rejected by the Commissioner of Income‑Tax/Wealth Tax (Revision) Zone‑A Lahore finding the same to have been barred by limitation. The claim of the petitioner that he was not properly served with the demand notice was also repelled. That order is sought to be challenged through this Constitutional petition.

2. After hearing the learned counsel for the parties I am inclined to allow the petition in view of the judgment recorded by this Court in Custom Appeal No.223 of 2001, dated 1‑11‑2001. In that case it was inter alia found that a prayer for condonation should be granted if the petitioner was not contumacious. In that judgment we benefited from a number of judgments including re: Controller Land Acquisition v. Mst. Katiji and others (1987) 56 Tax 130 (SC India). In that case their Lordships of the Supreme Court of India laid down general principles for adherence while deciding applications for condonation under section 5 of the Limitation Act. M.P. Thakkar, J. speaking for the Court favoured a justice oriented approach by finding that:‑‑ (i) Ordinarily, a litigant does not stand to benefit by lodging an appeal late. (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (iii) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner. (iv) When substantial, justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non‑deliberate delay. (v) There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. A litigant does not stand to benefit by restoring to delay. In fact runs a serious risk. (vi) It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice and is expected to do so.

3. To the above list we added our views expressed in the judgment else where that in revenue matters the prayer for condonation by an assessee/taxpayer should all the more be considered sympathetically and objectively.

4. For the various reasons recorded in that order I will allow this petition. Resultantly, the revision petition filed before the aforesaid authority shall be deemed pending for disposal on merits is accordance with law after hearing the petitioner. S.A.K./T‑139/L Petition allowed.