2003 PLP 2109 (PTD)

"Savings: (1) Subject to subsection (2), in making any assessment in respect of any income year ending on or before the 30th day of June, 2002, the provisions of the repealed Ordinance insofar as these relate to computation of total income and tax payable thereon shall apply as it this Ordinance had not come into force. (2)??????? ??????????????????????????????? (3)??????? ??????????????????????????????? (4)??????? Any proceeding under the repealed Ordinance pending on the commencement of this Ordinance before any Income Tax Authority, the Appellate Tribunal or any Court by way of appeal, reference, revision or prosecution shall be continued and disposed of as if this Ordinance has not come into force. "

11. The revision petitions on the date when the new Ordinance came into being were not pending and were filed on 28th of August, 2002 within the limitation provided by section 138(c) of the old Ordinance.

12. The next question which has arisen for determination is whether the proceedings shall be deemed to be pending under the repealed Ordinance although these were not physically pending before the Commissioner or not.

13. This Court is reminded of the case of Delbert-Evans v. Davies & Watson (1945) 2 All E.R. 167, D.C., wherein it was observed:-- "There is ample authority for saying that during the time between the conviction of an accused person on indictment and his appeal to the Court of Criminal Appeal the case is not ended at all, the case is still sub judice. The case is pending, to use the expression which has been used in many cases and in many judgments, and the publication of improper matter may amount to a contempt of Court. Newspapers who choose to publish comments upon a criminal case while it is still pending, and criminal case is still pending while the time for appealing has not run out at least, and most assuredly in the case of a man who is appealing or is proposing to appeal

if they choose to comment on the facts of the case other than upon matters which' have been given in evidence in open Court, they do so at their peril.?

14. In this case, the petitioner-Company had not filed his revision petition but was proposing to do the same within the time frame of 90 p days when the new law came into being.

15. In the case of S.K. Kashyap v. State of Rajasthan (AIR 1971 SC 1120 at page 1128), the Supreme Court of India said that the word `pending' ordinarily means that the matter is not concluded and the Court which has cognizance of it can make an order on matter in issue. The F test is whether any proceedings can be taken in the cause before the Court or Tribunal where it is said to be pending. The answer is that until the case is concluded, it is pending.

16. In the case of Muhammad Kazim Ali v. Ramesh Chandra Sil, 227 IC 236: 1964 Cal (Rul) 441 and AIR 1947 Cal. 270, it was observed that a mortgage in which a preliminary decree and a final decree had been passed must still be considered to be a 'pending suit' for purposes of section 36 of the Bengal Money-Lenders Act, so long as an application for a personal decree is neither made nor barred by limitation. Reference in this connection may also be made to the case of Ashagrali Nazarali Singaporwala v. State of Bombay (AIR 1957 SC 503).

17. The consequence of the new Ordinance had ensued but the legislature was careful in giving a saving clause under the provisions of section 239 which protected the pending proceedings.

18. Section 6(c) of the General Clauses Act reads as follows:-- "Effect of repeal: Where this Act, or any Central Act or regulation made after the commencement of this Act, repeals any enactment hitherto made or hereinafter to be made, then, unless a different intention appears, the repeal shall not- (a)??????? ........??????????????????? (b)??????? .................................................................................. (c)??????? .................................................................................. (d)??????? ????????????????????? (e)??????? Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; And any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed."

19. It must be understood that whereas an appeal is a right, the revision too is provided by the statute. The Saving Clause of the Ordinance itself as well as the provision of section 6(e) of the General Clauses Act protect these provisions of revision of the old law as long as the matter was pending.

20. It is clear to us that `pending' does not mean physical pending but would also include within its definition what is proposed to be filed within an unexpired periphery of time which has happened in the present case.

21. When we look at the impugned orders, we see that the Commissioner of Income Tax relied on the dictionary meaning of the words `pending' without realizing that the word `pending' had to be construed in context with the present proceedings and the law and a mere J reliance on a mere dictionary meaning did not make a correct appreciation.

22. In the case of Dr. Dilip Dineshchand Vaidya v. Board of Management, Sheth v. S. Hospital, Ahmedabad, (1988) 1 Guj LR 144 (Guj), the Allahabad High Court observed that a dictionary meaning in isolation in respect of the word `pending' was not acceptable.

23. In the case of Messrs Nawa-e-Waqt. Publications Ltd. v. Messrs Lakshmi Insurance Company (PLD 1959 W.P. Lahore 980), the observations were as follows:-- "The contention of Sheikh Abdur Rashid, the learned counsel for the applicant, was that because the law, as it stands after the promulgation of Ordinance No. XXII of 1959, does not allow a private person to move the High Court with a view to that Court's examining the propriety or legality of an order passed by the Custodian with regard to a person being non evacuee or any property being non-evacuee' property, the petition for revision presented by Messrs Nawa-i-Waqat Publications Limited on the 24th of March, 1959 cannot proceed and must, therefore, be dismissed. The reply made by Sheikh Khurshid Ahmad, Advocate, to this conte4tion of Sheikh Abdur Rashid, Advocate, was that though after the date of the promulgation of the Ordinance no private person can file a revision petition for having the legality or propriety of the order of a Custodian with regard to a person being non-evacuee or any property being non ?evacuee property examined, the petitions already filed which were pending at the time when Ordinance No.XXII of 1959 was promulgated cannot be deemed to have abated and their decision must be governed by the law which was in force at the time when they were presented. In this connection Sheikh Khurshid Ahmad, Advocate, pointed out; inter alia, that Ordinance No.XXII of 1959 did not say anything about petitions whether made by the Central or the Provincial Government or by a private person which may be pending in a High Court at the time of the promulgation of Ordinance XXII of 1959, and urged that the omission of the law-making authority to make any provision with regard to revision petitions validly instituted under the provisions inserted in the Pakistan (Administration of Evacuee Property) Act XII of 1957 by, the Pakistan (Administration of Evacuee Property) (Amendment) Act XLV of 1958 made it clear that those petitions were to continue to be governed by the law in force at the time when they were instituted. "

24. Reference may also be made to the case of Commissioner of Income Tax v. Asbestos Cement Industries 1988 PTD 227, where the following is also relevant for our purposes:-- "The short point that arises for our consideration is as to whether the reference applications could be initiated under the new Ordinance or whether the reference applications are required to proceed under old Act: Learned counsel for the Revenue submitted that provisions of section 136 of the Ordinance would come into play because the appeals were decided by the Appellate Assistant Commissioner and Tribunal after, the commencement of new Ordinance. The present reference applications cannot be treated as one under subsection (2) of section 66 because the Appellate Tribunal dismissed the reference applications under sub?section (1) of section 66 as barred by time, and for the same reason that we have held that the applications do not lie under subsection (2) of section

136. These applications should be disposed of under Article 199 of the Constitution of Pakistan as the Tribunal has refused to exercise jurisdiction vested in it by law. This contention is devoid of force. , This Court can invoke Article 199 for setting aside an order of a Tribunal holding that it has no jurisdiction to decide a particular matter placed before it if it is found that in fact the Tribunal had jurisdiction to adjudicate upon the matter and it erroneously refused to exercise statutory jurisdiction vested in it by law. If the application is made beyond the prescribed time, the Tribunal has no discretion but to dismiss the same unless a statutory provision to the contrary is made. The effect of the operation of Clauses (a) and (i) of subsection (2) of section 166 of the Ordinance is that all proceedings including an application for reference to the High Court in relation to the assessment year in respect of which the return of income was filed before July 1, 1979 must be dealt with under the repealed Act as if the Ordinance--had not been passed."

25. This Court, therefore, on the basis of discussion above, feels that the orders impugned were without legal basis. These are set aside and the case is remitted to the learned Commissioner of. Income I Tax/Wealth Tax, Company Zone-1, Lahore, for purposes of adjudication in one month's time with effect from 1st of August, 2003. The writ petition is thus accepted.

26. Parties are directed to appear before the Commissioner of Income Tax on the 1st of August, 2003. S.A.K./H-158/L?????????????????????????????????????????????????????????????????????????????????? Case remanded.