2000 PLP 39 (PTD)

(d) Income Tax Ordinance (XXXI of 1979)

S.132(5)(6)

Constitution of Pakistan (1973), Art.199

Constitutional petition--Decision in appeal

Notice

Assessee filed appeal on 25-4-1998-- Notice under S.132(6), .Income Tax Ordinance, 1979 was served to the Commissioner (Appeals) on 26-12-1998 i.e. after a period of more than 8 months from the date of filing of appeal

Notice was also served through the subordinate staff of the Commissioner but not personally

Commissioner (Appeals) did not decide the appeal within the stipulated period

Assessee sought a declaration through Constitutional petition that the relief claimed in appeal be treated as stands given in term of S.132(5), Income Tax Ordinance, 1979 as failure on the part of the Commissioner (Appeals) to dispose of appeal within three months had given rise to a valuable right in favour of the Assessee

Validity

Assessee neither made application within the prescribed time contemplated in S.132(6), Income Tax Ordinance, 1979 nor notice was served upon the person of Commissioner (Appeals)

Declaration sought under Constitutional jurisdiction from the High Court was refused being not warranted at all. Pakistan Herald Publications (Private) Ltd. and 23 others v. Federation of Pakistan and 21 others 1998 CLC 65; Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P.W.R., Lahore PLD 1962 SC 142; Pakistan Industrial Credit and Investment Corporation Ltd. v. Bawany Industries Ltd. PLD 1998 Karachi 45 and Pakistan Textile Mill-Owners, Association, Karachi and others v. Administrator of Karachi and 2 others PLD 1963 SC 137 irrelevant. Tariq Aziz for Petitioner. Mian Subah Sadiq Klasson for Respondents. Section 132 of the Income Tax Ordinance provides for the modalities as well as powers of the Appellate Additional Commissioner for disposing of an appeal. Subsection (5) of that section says that where no order under subsection (1) is made before the expiration of t1iree months from the end of the month in which the appeal was presented, the relief sought through the said appeal shall be deemed to have been given and all the provisions of that Ordinance shall have affect accordingly. Subsection (6), however, states the proviso that the said provisions of subsection (5) shall not apply unless a notice by the appellant informing that no order under subsection (1) had been made within the prescribed period -"is personally served by the appellant on the Appellate Additional Commissioner not less than 30 days before the expiration of the period of three months". 2.The petitioner who is an assessee of the Income Tax Department claims to have filed an appeal before the respondent No.1 Commissioner (Appeals) Zone-A, Lahore on 25-4-1998. The consolidated assessment order for the years 1989-90,1990-91 and 1991-92 was earlier framed on 28-2-1998. It is stated that ' since the respondent failed to decide the appeal within the stipulated period, a notice in terms of subsection (6) of section 132 was served upon him on 26-12-1998. According to the petitioner, in spite of that the respondent failed to-discharge his legal obligation to dispose of the appeal. Therefore, a declaration is sought that the relief claimed in the appeal before respondents Commissioner (Appeals) stands given in terms of subsection (5) of section 132 of the Income Tax Ordinance. 3.Pre-admission notice was served upon the respondents who are represented by Mian Subah Sadiq Klasson, Advocate. 4.The learned counsel for the petitioner in terms. of the contents of the petition stated that failure on the part of the respondent No. 1 to dispose of appeal of the petitioner within three, months ha,, 0sen rise to a valuable right in favour of the petitioner Also that even after being served with the aforesaid notice, the respondent No. 1 did not move with mala fide intention so that the Assessing Officer respondent No. 2 may proceed to affect the recovery of illegal demands created as result of the aforesaid assessment order. 5.The learned counsel for the revenue objects to the maintainability of the petition on various grounds. It is stated that even if the submissions made in the petition are admitted as correct, still it cannot succeed. Explaining the position he states that the notice contemplated in subsection (6) of section 132 ought to have been made not less than 30 days before the expiration of the period of three months while in this case it was admittedly served after a period of more than 8 months. Secondly the use of word "personally" in that subsection makes it mandatory for the assessee to serve a notice upon Commissioner (Appeals) himself and as happened in this case the receipt of that notice by his subordinate staff did not fulfill the requirements of law. 6.I will agree. It hardly needs emphasis that the Legislature in its wisdom had used' the word "personally" in order to make it sure that the sweeping result of acceptance of appeals or allowing of total relief claimed in appeal is trot misused. The word "personally" in the subsection is so conspicuous that it is not possible to miss it. The argument that the word "personally" does not mean only the person the Commissioner Appeals) but includes his office is not acceptable in view of the unacceptable consequences. The use of word to the clause is not only natural but its omission or its reading down will negate the purpose of the clause itself. No rule of interpretation of statutes is as established as the one that forbids ignoring of a letter ,of law or treating another super fluous. The legislature is supposed to use every word with a purpose which in this case rather appears to be the soul of the clause. To provide so was quite natural as the legislature was not unaware of the office working nor' the level of integrity prevailing therein. To make sure that Commissioner (Appeals) had personal knowledge of the running out of limitation provided for to subsection 5 and to put him to his guard his Personal service was trade mandatory. For that purpose from the date of his personal knowledge he is allowed a period of at least 30 days to act which was also made starting point for an assessee to serve a notice of the kind.

7. It will be seen that the affect of subsection (6) on the provisions of subsection (5) is. two-fold. Firstly, that every appeal before Commissioner (Appeals) will not stand automatically decided on the expiration of period of three months. Secondly only those assessees who would like to get then; appeals decided expeditiously have been allowed a chance to serve the aforesaid notice. In other words, the service of notice contemplated in subsection (6) is a kind of request for early hearing of the appeal though the appellate authority. has been made obliged not only to grant the same but to see that it positively stands disposed of within 30 days of the notice or the expiry of three months. Once, the aforesaid period for making an application as contemplated in subsection (6) has expired, the appellant loses his right to get the appeal decided within the prescribed limitation of three months. However, on administrative side even after expiry of said limitation he can always make a request to Commissioner (Appeals) for out of turn hearing which will be decided in accordance with his roster arrangements as well as the volume of pendency before him. If no ground for early hearing is established, the Commissioner may very well-decline the same. 8.The learned counsel for the petitioner has relied upon a number of reported judgments including 1998 CLC 65 re: Pakistan Herald Publications (Private) Ltd. and 23 others v. Federation of Pakistan and 21 others PLD 1962 SC 142 re; Khawaja Ghulam Sarwar v. Pakistan through the General Manager, P.W.R.. Lahore PLD 1998 Karachi. 45 re: Pakistan Industrial Credit and Investment Corporation Ltd. v. Bawany Industries Ltd. and PLD 1963 SC 137 re: Pakistan Textile Mill-Owners Association Karachi etc. v. Administrator of Karachi and 2 others to contend that the Courts must give effect to the intention of the Legislature which in his case was nothing but to see that appeals before the Commissioners are. disposed of with due expediency but not later than three months. The submission, however, is impertinent. The reliance of the learned counsel on the aforesaid judgments is also hardly of any use inasmuch as the provisions of law in issue before us do not admit of the kind of interpretation which the learned. counsel would like to place upon them. The language of the provisions is easy, simple and clear which requires the service of notice upon the person of Commissioner (Appeals) within a specified time. Since the failure on the part of Commissioner has 'a striking adverse affect on the interest of the revenue, the personal service of Commissioner has been made mandatory. The person to be served having been identified and also the period within which the service had to happen, nothing retrains to guess or interpret. It is settled that when law requires a thing to be done in a particular manner then it must be done in that particular manner or should not be done at all.

9. The present petitioner neither made the application contemplated in subsection (6) of section 132 within the prescribed time nor admittedly the notice was served upon the person of Commissioner (Appeals). Therefore, the kind of declaration sought for in this petition appears to optimistic. It shall be refused.

10. Dismissed in limine. C.M.A./M.A.K./A-172/L Writ petition dismissed.