2020 PLP 785 (PTD)

UMAR ATA BANDIAL, J.

Vide its judgment dated 05.03.2008 the learned High Court held that the Tax Reference filed by the appellant was time barred. In doing so, the High Court observed that the order dated 02.08.2007 of the learned Appellate Tribunal impugned in the Reference had been received by the appellant on 06.09.2007. Reckoning the limitation period from that date, the filing of the Reference application by the appellant on 02.01.2008 was held to be beyond time. In fact the impugned order of the Appellate Tribunal was received by the appellant on 06.10.2007. On that basis the Reference application filed by the appellant on 2.1.2008 was within time.

2. The above noted factual contention by the appellant about the correct date of its receipt of the order of the Tribunal is noted in the judgment dated 5.3.2008 with the qualification that the order of the Tribunal was "erroneously stamped to have been received on 06.09.2007." However, for the failure by the appellant to file an application for condonation of delay or for explaining the said error, the Reference application was dismissed as being time barred.

3. Rather than filing an application for correction of the error committed by the learned High Court about the date of service of the order of the Tribunal, the appellant filed a review petition. This review petition was dismissed by the impugned order dated 25.06.2009 as being incompetent. Leave was granted by this Court vide order dated 16.02.2010 and the question in issue is merely whether under section 133 of the Income Tax Ordinance, 2001, the learned High Court was vested with review jurisdiction to correct the error about the date of receipt of the Tribunal's order by the appellant.

4. We have heard the learned counsel for the parties. It is true that in the exercise of its Reference jurisdiction under Income Tax Ordinance, 2001, the High Court is not vested with jurisdiction to review its own orders. However, it is a matter of fact that in its review petition the appellant merely sought correction about the date of receipt of the Tribunal's order dated 02.08.2007. The said correction was claimed on the basis of the contents of Paragraph 2 of the Reference application itself which specifically states that the appellant was served with the said order of the Tribunal on 06.10.2007. The relief prayed by the appellant was for the correction of a clerical error, namely, the stamping of the wrong date of receipt of the order of the Tribunal by the appellant's mail clerk. To fortify its case the appellant also secured a certificate dated 09.09.2009 from the Registrar of the Appellate Tribunal (at page 54) which records that the said order of the Tribunal was dispatched on 01.10.2007. Clearly the said order could not have been received by the appellant's office on 06.09.2007 as mistakenly understood by the High Court.

5. We consider that the review application by the appellant decided by the impugned order of the High Court dated 25.6.2009 may have been treated as an application for rectification for the correction of a clerical error. Its conversion from a review application to a rectification application ought to have been granted by the High Court in the exercise of its inherent jurisdiction to correct an obvious clerical error. This Court in the case of Muhammad Akram v. DCO Rahim Yar Khan (2017 SCMR 56) has observed that no fetters or bar could be placed on the High Court and or this Court to convert and treat one type of proceedings into another type. This judgment has been followed in the case of Sher Alam Khan v. Abdul Munim (PLD 2018 SC 449).

6. Accordingly, the impugned judgment fails to exercise jurisdiction on a wrong appreciation of the law and is therefore set aside. These connected matters arising from the same impugned judgment are remanded to the High Court for decision of the Reference applications filed by the appellant on their merits. Appeals allowed. MWA/C-4/SC Case remanded.