2014 PLP 1004 (PTD)

CH. ANWAAR UL HAQ (JUDICIAL MEMBER).

The titled miscellaneous applications have been preferred by taxpayer, seek recall of an order of this Tribunal passed on 21-6-2012.

2. It is submitted by the AR that the appeals of the taxpayer were dismissed for want of prosecution on 21-6-2012 and order was received on 6-7-2012. It is contended by the AR that before 21-6-2012, the case was fixed on 14-5-2012, when counsel of the taxpayer appeared and hearing was adjourned for 21-6-2012, however in the diary he inadvertently noted the date of hearing as 22-6-2012 instead of 21-6-2012, therefore, he could not attend the hearing on 21-6-2012. It is asserted by the AR that non-appearance of the appellant's counsel was neither deliberate nor wilful, therefore, the appeals of the taxpayer be recalled and decided on merits.

3. After perusal of the case file, it was revealed that:-- (i) On 14-5-2012, the case was adjourned for 21-6-2012 and the adjourned date was duly noted by the AR on the order sheet dated 14-5-2012. (ii) The present miscellaneous applications have been filed without any instructions from the taxpayer, as it was not supported by an Authority Letter or Power of Attorney from the taxpayer. Since it was a fresh cause of action. (iii) These applications have neither been signed by the taxpayer nor it bears the seal of the registered person. (iv) The contents of the application are not supported by an affidavit of the applicant/appellant as required under Rule 13 of the ATIR Rules, 2010, and the provisions of Order VI, Rule 15 of the C.P.C., 1908 read with High Court Rules and Orders. (v) The applications have been filed without impleading the necessary and proper parties as required under Rule 9 of the ATIR Rules. It is pertinent to point out that under the law only Commissioner Inland Revenue is necessary party in whose absence no effective adjudication can be made, whereas the applicant impleaded the Additional Collector-III, Customs and Sales Tax, LTU, Lahore, as respondent. (vi) It was alleged in the applications that "the titled appeal came up for hearing on 21-6-2012 which was dismissed". The fact of the matter is that no appeal of the taxpayer was fixed for judicial scanning or dismissed on 21-6-2012. Original appeals of the taxpayer/department were disposed of by this Tribunal vide order dated 12-10-2011, contained in S.T.As. Nos. 671 and 187/LB/2009, in the following manner:-- "We find force in the arguments of the learned DR and therefore, remand back the case to the adjudication officer for fresh adjudication. Since show cause notice is clear, it would remain intact. Department appeal succeeds whereas appeal of the registered person is dismissed" Actually, vide order dated 21-6-2012, taxpayer's miscellaneous applications were dismissed for want of prosecution. (vii) The taxpayer's hands are smeared with suppression of material facts. Main appeals of the taxpayer as well department were disposed of by this Tribunal vide order dated 12-10-2011. Later on, the taxpayer moved applications for recall of Tribunal's order dated 12-10-2011, which were dismissed for non-prosecution vide M.As. Nos.528-529/LB/2011, dated 6-2-2012. The taxpayer again filed miscellaneous applications for recall of applications bearing M.A. Nos.528-529/LB/2011, which were accepted and these miscellaneous were restored to their original numbers vide order dated 16-4-2012. However, these miscellaneous applications were again dismissed for non-prosecution vide order dated 21-6-2012. All these important facts were not only withheld rather concealed by the taxpayer while institution of present miscellaneous applications.

4. For the reasons and observations noted above, we hold that the subject applications have not been filed by the taxpayer in accordance with the mandatory and imperative provisions of law and rules made thereunder. Hence, the same are dismissed being "not maintainable" and misconceived.

5. Before parting with the order, it is considered appropriate to burden the applicant with special costs of Rs.10,000 being a frivolous litigant and to curb this practice. The said amount be paid to the Lahore Tax Bar Association for credit to Tribunal Bar Renovation Fund Account.

6. Order accordingly. CMA/15/Tax(Trib.) Order accordingly.