2011 PTD (Trib (PLP)

CH. MUNIR SADIQ (JUDICIAL MEMBER).

Before the hearing of main appeal in STA No.470/LB/2009, the appellant has raised the following additional grounds of appeal:-- (1) The impugned adjudication order is hit by time limitation in terms of proviso to subsection (3) of section 36 of the Sales Tax Act, 1990. (2) In the absence of any charge sheet and proper statement of allegation regarding "collusion or deliberate act"; the impugned show-cause notice is illegal, void and without jurisdiction under section 36(1) of the Act.

2. Learned AR for the petitioner/appellant has argued that since the grounds taken are purely of legal nature, therefore, they may be allowed to be agitated during the course of arguments. Reliance has been placed upon reported cases cited as 2006 SCMR 1630 (SC); 2006 SCMR 783 (SC), 2000 PTD 359 and 2009 PTD (Trib.) 1136. On the other hand none is present on behalf of the Revenue. As nobody has entered appearance on behalf of the revenue/respondent nor any application for adjournment has been received therefore it is deemed fit to proceed ex parte.

3. Argument heard. Record perused.

4. No doubt the petitioner/appellant had not taken the grounds sought to be argued through the present petition for additional grounds but his petition merits acceptance, inter alia, for the reason that honourable Lahore High Court in the case of "Haji Mehr Din v. Commissioner of Income Tax", cited as 2002 PTD 541 has observed that: "The word "additional grounds" itself implies that a ground not already taken was being stressed. There could be a number of reasons for not taking a ground in the memo. of appeal despite its availability. It can start from inadvertence to end at negligence. Whatever be the reason when a lis is pending before a Court or a judicial forum, entertainment of an additional ground should be a rule and not an exception. Unless the purpose for making of additional ground is either to delay the proceedings or is to cause embarrassing to the parties or the Presiding Officer an additional ground must not be refused provided, it is made or raised before conclusion of hearing. Even in case where a hearing is complete but the order is not announced an additional ground should not ordinarily be refused except for the reasons noted above."

5. It was further observed that the rules of procedure are meant to advance the case of administration of justice than to thwart it. These technicalities should never undermine the advancement of purpose for which judicial or quasi-judicial forums are established by law. Every' kind of such technicality can even be ignored if directly or indirectly it hinders the process of justice or due relief to which a party is found entitled to. The honourable Supreme Court of Pakistan while considering the place of these technicalities in the administration of justice observed that laws some time are called an ass, but the Judge should, as far as possible, try not to become one. This view of the Court is stated in re: "Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another" PLD 1975 SC

678. The apex court in that case reiterated that mere technicalities should not be allowed to defeat the ends of justice and a departure could justifiably be made if required by the circumstances of the case.

6. By now it is well-settled that the place of rules in a judicial system is more to provide strength and support rather to demolish or destruct it. While interpreting the rules of a court or a judicial forum it is all the more necessary that these should be seen in the perspective of the purpose or the reason for the creation of the forum and to advance its effectiveness rather than to discourage a petitioner at the threshold. The interpretation of the rules of a Court or Judicial forum is totally different from the Rules by which the administrative wings of the State proceed to curb crime, regulate the conduct of a particular relationship between the citizens or ensure peace, tranquillity, enjoyment of civil liberties etc. The rules of a Court or a judicial forum must have only one aim i.e. that the person seeking justice must be facilitated. The rules of Court or procedure should not be used against him unless he is contumacious and attempts to employ them against his adversary or to destroy the credibility of the forum itself. If a person charged with a simple crime to felony can be the most favourite child of law then why an assessee should not be facilitated in his defence against Revenue. A person contributing a single person to the exchequer but contesting the remaining pound deserves more respect than a peny who will be, acquitted of killing a human being merely for some discrepancy in the evidence here and there. Furthermore refusal of audience by a Judicial Tribunal is an extreme step and it ought to be avoided unless necessary in the interest of justice.

7. Keeping in view the above said pronouncements of the superior judiciary I am inclined to allow the application. The petitioner/appellant is permitted to agitate/argue the grounds mentioned in the application. H.B.T.I177/Tax(Trib.) Order accordingly.