2011 PLP (Trib (PTD)

JAWAID MASOOD TAHIR BHATTI (JUDICIAL MEMBER).-1. The department through this miscellaneous application has requested for recalling of the Order of this Tribunal, dated 1-4-2010 passed in S.T.A. No.1484/LB of 2009 on the following grounds: (i) That the above titled appeal was heard and decided on 1-4-2010, exercising powers under section 130(8)(a) of the Income Tax Ordinance, 2001, Section 130(8)(a) ibid. is reproduced hereunder for convenience sake: "(8) The Federal Government may direct that all or any of the powers of the Appellate Tribunal shall be exercised by-- (a) any one member or" (ii) That the impugned (order does not reflect) any (Statutory Regulatory Order) (S.R.O.) which may indicate that the Hon'ble Member was empowered to decide the case. (iii) That the instant case involves the State Revenue amounting to Rs.6.132 (M) section 130 (8AA) ibid. obviously stipulates as under: - (8AA) The Chairman or other member of the Appellate Tribunal A authorized, in this behalf by the Chairman may, sitting singly, dispose of any case where the amount of tax or penalty involved does not exceed five million rupees.] (iv) That under this legal backdrop, the impugned order was quite erroneously passed and being coram non judice is of no legal effect. Reliance is placed on the following judgment of Supreme Court of Pakistan: 2007 SCMR 459 [Supreme Court of Pakistan] Present: Javed Iqbal and Nasir-ul-Mulk, JJ "Implementation of void orders

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Government not bound to implement void orders, which are erroneous, coram non judice and without jurisdiction." (v) That legally the above titled appeal is till to-date subjudice before the Hon'ble Tribunal. (vi) That the order against which the appeal was filed on 13-8-2005, was received on 11-6-2005. There was a delay of three days due to certain hardships, which is liable to be condoned in the interest of justice and in view of the huge State Revenue amounting to Rs.6.132 (M).

2. None has appeared on behalf of the respondent-registered person. The case is, therefore, being decided ex parte on merits.

3. I have heard the learned D.R. and have also perused the above-referred order of this Tribunal. I have found that the applicant-department has raised the objection regarding the jurisdiction of exercising the powers under section 130(8)(a) of the Income Tax Ordinance, 2001 by the Members of the Tribunal sitting singly and has contended that the order of this Tribunal passed by the Member of the Bench sitting singly has been passed erroneously being coram non judice and has no legal effect. After perusal of the relevant Circular dated 22-2-2010 in this regard, I have found that in partial modification of the office circular of even number dated 12-12-2009 and in exercise of powers vested under section 130(8AA) of the Income Tax Ordinance, 2001, the Hon'ble Chairman of the Tribunal has duly authorized all the Single Benches constituted in the Appellate Tribunal Inland Revenue to hear and dispose of all the cases under the Income Tax Ordinance, 2001 where assessed income does not exceed to ten million rupees. I, therefore, find no error/mistake in the order of this Tribunal which has rightly been passed. Regarding the contention of the delay, I am of the view that under subsection (4) of section 131 of Income Tax Ordinance, 2001, this Tribunal may upon an application, in writing, admit the appeal after the expiration of the period specified in clause (d) of subsection (2) of section 131, if it is satisfied that the person appealing was prevented by sufficient cause from filing the appeal within that period. In this case, on behalf of the applicant-department, no separate application for condonation of delay giving specific reason that the applicant was prevented by sufficient cause from filing the appeal has been given. I, therefore, find no merit in the application which, therefore, stands dismissed. C.M.A./204/Tax(Trib.) Application dismissed.