2013 PLP 1389 (PTD)

NOOR-UL-HAQ N. QURESHI, J.

The appellant/ Commissioner of Income Tax/Wealth Tax, Companies Zone, Islamabad has filed the instant appeal under section 136 of the Income Tax Ordinance, 1979, against the order dated 21-5-1998 and has requested to decide the following question of law:-- (1) Whether the facts and in the circumstances of the case, the learned ITAT was justified in holding that the provisions of section 5(1)(c) of the Income Tax Ordinance, 1979 do not empower the Commissioner to assign the jurisdiction to Tax Recovery Officer for receiving the statement under sections 139 to 143 and to act as DCIT in terms of section 2(17A) of the Ordinance for the purposes of levying penalty under section 108 of the aforesaid Ordinance?"

2. Arguments heard and record perused.

3. Learned counsel for the appellant contended that appeal is old one pending since February, 2000. He further contended that order passed by the Tribunal dated 21-5-1998 was received in the Office on 14-12-1999, therefore, the limitation as provided under section 136 of the Income Tax Ordinance, 1979 expires on 12-2-2000, hence the appeal preferred on 12-2-2000 is in time.

4. The learned counsel for the appellant however not able to reply the query raised by the Court regarding date of receipt of Tribunal's order mentioned in handwriting, which appears to be subsequently added to drag the appeal within time limit. The appellant himself in Para-3 of the appeal contended that limitation is expiring on 12-2-2000. While following the provisions of section 136 of the said Ordinance, 1979, introduced new enactment of filing appeal mandatory within 30 days of the date upon which an aggrieved person or the Collector is served with notice of an order under section 135 as provided by the Finance Act, 1997, which continued till promulgation of the Finance Ordinance, 2000 known as Ordinance No. XXI of 2000, whereby again the same provisions in which addition of subsection (10) was introduced, which has no nexus with the present subject for filing of the reference or the appeal.

5. Learned counsel for the appellant not able to clarify such delay apparently on their part even the date of receiving of order, in the office shown as 14-12-1999, when Commissioner was required to prefer appeal to the High Court within 30 days mandatory, which too had not been exhausted and it was going to expire on 30-1-2000 but the appeal seems to have been preferred on 11-2-2000.

6. For the convenience, amended section 136 is reproduced herein below:-- Appeal to High Court.

(1) An appeal shall lie to the High Court in respect of any question of law arising out of an order under section 135. (2) The appeal under this section shall be filed within sixty days of the date upon which an assessee or the Commissioner is served with notice of an order under section 135. (3) Where an appeal under subsection (1) is filed by the assessee, it shall be accompanied by a fee of one hundred rupees. (4) An appeal filed under this section shall be heard by a Bench of not less than two Judges of the High Court. (5) The High Court upon hearing of an appeal under this section shall decide the question of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal, which shall pass such orders as are necessary to dispose of the case conformably such judgment. (6) Subject to subsection (7), notwithstanding that an appeal has been filed under this section, tax shall, unless recovery thereof has been stayed by the High Court, be payable in accordance with the assessment made in the case as modified by the order of the Appellate Additional Commissioner or, as the case may be, the Appellate Tribunal. (7) Where recovery of tax has been stayed by the High Court by an order, such order shall cease to have effect on the expiration of a period of six months following the day on which it is made, unless the appeal is decided, or such order is withdrawn, by the High Court earlier. (8) The cost of the appeal shall be in the discretion of the High Court."

7. That as general principle of law if delay occurs on the part of any party, such condonation of delay is required to be sought through making an application under relevant provision of Limitation Act or any other provision, if provided, by the special enactment in view of legal principle already sketched, that each day of delay has to be explained plausibly with reason duly supported by affidavit.

8. It will be necessary to distinguish the respectable period for clarifying the doubt about the filing of reference or appeal against the order passed under section 135 of Act 1997 on receiving notice by the aggrieved person or Collector and reference on receiving the notice of refusal by the Appellate Tribunal on making an option under section 136(1) of the Ordinance XXXI of 1979 or re-promulgated Ordinance XXI of 2000 (Finance Ordinance, 2000) as the case may, the dates and periods of promulgation of such enactment are submitted herein below:-- (A) Income Tax Ordinance, 1979 came into force on 1st July, 1979. (B) Finance Act XXII of 1997 was promulgated on 1st July, 1997 (C) The Finance Ordinance XXI of 2000 promulgated on 1st July, 2000.

9. Therefore, any transmute by overlapping the period in preferring reference or appeal whatever the case may be, invalidates it beyond the law. And any such institution under no circumstances can be considered as legal practice, as such, same is incurable under the scheme of law.

10. In the instant appeal, in Para-3, it is rather admitted by the appellant himself that he though received the order on 14-12-1999, but instead of preferring an appeal within a period stipulated by law, they with slackness only shifted the burden from their shoulders and lethargically filed the appeal even not confronted the relevant provisions of law, which provides the specific period for preferring the appeal.

11. Therefore, under the circumstances, when the party i.e. the appellants themselves sit over their own rights with such slackness on their part, as such, they are not entitled for the relief claimed, for which the procedural law does not provide any favour. The appellant failed to follow the spirit of law for seeking relief claimed in the instant appeal.

12. From the perusal of the appeal it is evident that the present appellant had filed the instant appeal on 12-2-2000 against the order of Income Tax Appellate Tribunal dated 21-5-1998 i.e. after about one year and nine months of the passing of period of limitation, as the appellant in Para-3 of the appeal, himself has mentioned that limitation under section 136 of the Income Tax Ordinance, 1979 expires on 12-2-2000 and that too, without any application for condonation of delay. It has been the constant view of the superior Courts that for administration of justice, principle has to be followed "law would support vigilant and not indolent". Therefore, any delay in filing appeal in such a situation is occurred on account of indolence on the part of any party, then no law of limitation will support in any manner. Such delay is to be considered negligence on the part of that party, thus the other party should not be penalized for such negligence. Therefore, while fortifying the judgments reported in "2004 SCMR 145, (Nazakat Ali v. WAPDA through Manager and others)", "2011 SCMR 1341", (Amanullah Soomro v. P.I.A. through Managing Director/Chairman and another)", and "PLD 2001 SC 228" (Bashir Ahmad v. Muhammad Sharif and 4 others)", as such, the instant appeal is badly time barred. Resultantly, the same is hereby dismissed in limine. SAK/93/Isl Appeal dismissed in limine.