1985 PLP (Trib (PTD)

"any proceeding pending an the commencement of this Ordinance be fore any income-tax authority, the Appellate Tribunal or any Court or Tribunal by way of appeal, reference, revision or prosecution, shall be continued and disposed of as . if this Ordinance had not come into force.".

5. From a. plain reading 6f the above clause there is no manner of doubt left with us that where any appeal, reference, revision or prosecution was pending at the time of the commencement of the Ordinance before any Income-tax authority it was to be continued under the repealed Income tax Act, 1922. In the present case appeal of Messrs M...S..., N...M...was pending before the learned A. A. C. when the Ordinance came into force with effect from 1st July, 1979. There is no dispute with regard to "the fact that these appeals were disposed of by virtue of learned A. A. C combined order, dated 29th March, 1980. Subsequently at the behest of the applicant the departmental appeals were dismissed by the Tribunal vide its orders, dated 6th October 1980. These orders were admittedly received by the applicant on 6th November, 1980 as is evident from his letter No. 136(1)/80-81/3111/J, dated 5th August, 1984. The applicant wants that in view of Income-tax Ordinance, 1979 these reference applications be treated as having been filed within the time according to the provisions of subsection (1) of section 166 of the said Ordinance. On account of the specific provisions of clause (1) of subsection (2) of section 166 of the Ordinance, it is not possible for us to accept the prayer of the applicant.

6. Our attention was also invited to the words on or before, as these words appear in clause (j) of subsection (2) of section 166 of Income-tax Ordinance; f

979. This clause is incorporated below: "Where the period prescribed for any application, appeal, reference or Revlon under the repealed Act had expired on or before the agar men cement of this Ordinance, nothing contained in this Ordinance shall be construed as enabling any such application, appeal, re ference or revision to be ode under this Ordinance by reason only of the fact that a longer period, therefore, is prescribed or provision is made for extension of time in suitable cases by the appro priate authority."

7. It was argued on behalf of Messrs M...S. .N...M...that the words on or before the commencement of this Ordinance may be read iii the light of P L D 1959 (W. P.) Kar.

94. In this case section 167(8) of the Sea Customs Act was amended by section 3 of the Sea Customs (Amendment) Ordinance (1957) and by that amendment offences under section 167(8) of the Sea Customs Act became triable by the Customs Authority only and ceased to be triable and punishable by Court of law. Here Acdu...H..J while interpreting the effect of on or after observed as under; "Since section 2 of that Ordinance and Act of 1957 abolished the mode of trial by a Court of law as from 23rd day of March, 1956 it be came necessary to say in section 3 that anything done under section 167(8) of the Sea Customs Act on and after? 3rd March 1957 should be deemed to have been done in accordance with the amended provision. On the language of sections 2 and 3 of the Amending Ordinance and the Act the Amendment took affect both in respect of penalty and procedure retrospectively from 23rd March, 1956. The effect of the repeal is to be assessed in the light of the intention expressed in those two sections of the Amending Ordinance and Act. According to those provisions, proceedings institutes) on or after the 23rd day of March, 1956 would no doubt be conducted in accordance with the new amend ment. But offences committed before the 23rd March, 1956 and proceedings instituted before that day would continue to be con ducted in accordance with the provisions of the Sea Customs Act as they stood before the 23rd of March, 1956. Section 3 of the Amending Ordinance and the Act brought under the purview of the amendment only those proceedings which were instituted after 23rd March, 1956 and left those instituted before that day to be dealt with in accordance with the provisions of section 6 of the General Clauses Act. What fell under the protection of section 3 of the Amending Ordinance and Act of 1957 were .the remedies available after the 23rd of March, 1956 and proceedings instituted after that date."

8. From the above authoritative pronouncement of the words on before it is abundantly clear that where the period prescribed for any application, appeal, reference or revision had expired on or before the ' commencement of this Ordinance, nothing contained in this Ordinance could be construed as enabling such application appeal, reference or revision to be made under this Ordinance merely on account of the fact that a longer period is prescribed or provision is made for extension of time in respect of such appeals or reference applications, as the case may be. Secondly these 'proceedings being of a procedural character could only by finalized under the repealed Income-tax Act, 1922 which prescribed a period of 60 days for filing of reference applications by the applicant before the Tribunal. This onus not having been discharged by the applicant the reference appli cations are in our opinion clearly hit by limitation.

9. The effect of repeal on the pending proceedings was considered in P L D 1961 S C

523. In this ease, A. R. Cornelius, C. J. held as under: "The answer to that argument is that by virtue of section 6 of the General Clauses Act, the proceedings in respect of Sugni Chand and his property which have been continued in force, carry their own law with them, i.e. that they should be decided under the law relating to intending evacuees as it was at the time when they were instituted, notwithstanding the repeal of these- provisions. There fore, in relation to these proceedings, the expression `law' occur ring in Article 4 of the Laws (Continuance in Force) Order mast be understood in a special sense, namely, as having reference to the special law which these proceedings carry with them for their proper determination."

10. In another case effect of repeal on the pending proceedings was considered in P L D, 1963 (W. P.) Kar.

715. In this case Masud Ahmad, J. held as under: ''The right to file a suit under this provision of law being a substantive right and being not a matter relating to procedure only, it could be taken away be the Legislature, but the intention had to be expressed in clear words; or it could be gathered from the language used by necessary intendment. It was not intended that the Act repealing the Karachi Small Causes Court Act was to apply retrospectively and therefore, as the application under section 18 of the Karachi Small Causes Court Act had been filed before that Act was repealed and as even before the application under section 18 was granted, the petitioner had a right to file suit to claim compensation for trespass, as defined under section 23 of that Act, that right continues to vest in him and can be enforced, although the Act under which the right had accrued is no longer in force. The view of the case taken by the trial Court, namely, that after the repeal of Karachi Small Causes Court Act no proceedings under section 24 of the Act can be taken is, therefore, erroneous."

11. The interpretation of pending proceedings was examined in P L D 1970 S C

264. In this case Wahiduddin, J. observed as under: "One of the effects of the repeal is that. it shall not effect any investiga tion, 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 such penalty, for feiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. It is, therefore, quite clear that all the investigations or proceedings, which are contemplated are to continue as if the Repealing Act or Regulation had not been passed. On this language it is quite clear that the trial of criminal cases has to be in accordance with rules of procedure in force at the commencement of the trial and the same procedure -has to be followed."

12. On account of the above authoritative pronouncements of the High Court and the Supreme Court there is no manner of doubt left with us that these were pending proceedings when the Act was repealed. These C proceedings could thus only be finalized under the provisions of the old Act. Apart from it we would like to put on record that the Income-tax Ordinance, 1979 specifically provides for the period of limitation to be computed in accordance with the provisions of clauses I and J of sub section (2) of section 166 of the Income-tax Ordinance 1979. Thus, in respect of this case the period of limitation could only be 60 days accord ing to the repealed Income-tax Act, 1922. .

13. As the reference applications were admittedly received in the office of the Tribunal on 2nd February 1981 these are hit by limitation by a period of 28 days. Since the applicant has not filed any application for the condonation of delay in the filing of reference applications it is not possible for us to entertain them. These reference applications are con sequently held to be out of time.

14. The learned D. R. before us reiterated the same pleas, which were earlier raised before the Tribunal in the reported cases. On account of the reasons stated in the earlier reported decisions of the Tribunal we do not find any hesitation in holding that the reference applications filed by the applicant are out of time. In the absence of any application having been filed on behalf of the applicant for condonation of delay, these re ference applications are dismissed in limine. M. B. A. Appeals dismissed.