2006 PLP 2359 (PTD)

This single order shall decide the present appeal (I.T.A. No.73 of 1999) and the connected appeals (I.T.A. No. 75 of 1999 and I.T.A. No.76 of 1999), as common questions of law and fact are involved in all the appeals and they are between the same parties.

2. Commissioner of Income Tax/Wealth Tax, Faisalabad, has sought references on the following questions of law said to have arisen out of order, dated 24-9-1996, passed by the Income Tax Appellate Tribunal: (i) Whether under the facts and circumstances of the case the learned Income Tax Appellate Tribunal was justified to dismiss the departmental appeal for non-filing of certified copies of impugned order only? (ii) Whether under the facts and circumstances of the case the learned Income Tax Appellate Tribunal was justified to dismiss the departmental appeal without providing an opportunity to make up the deficiency, if any, noted by the learned Tribunal? (iii) Whether under the facts and circumstances of the case the learned Income Tax Appellate Tribunal was justified to hold that departmental appeals could not be proceeded further? Wealth tax assessments for the years 1998-88, 1989-90 and 1990-91 were completed by the Wealth Tax Officer, against which the assesses filed three appeals. Commissioner of Income Tax (Appeals) partly accepted the appeals, vide single order, dated 5-3-1992. The Department filed three further appeals, challenging order, dated 5-3-1992, passed by the Commissioner of Income Tax, before Income Tax Appellate Tribunal. The learned Tribunal, after finding that certified copies of order, appealed against, have not been appended with the memorandum of appeals, proceeded to dismiss all the appeals, vide single order, dated 24-9-1996, hence the present references.

3. Learned counsel for the Revenue states that the impugned order is not sustainable in law, inasmuch as Rule 11 of Income Tax Appellate Tribunal Rules, 1981 has been misconstrued.

4. Rule 11 of Rules, inter alia, provides that every memorandum of appeal shall accompanied by a certified copy of the order appealed against. Sub-rule (3) of the said rule envisages that the Tribunal may, in its discretion, accept a memorandum of appeal, which is not accompanied by all or any of the documents referred to in this rule. It appears appropriate to reproduce Rule 11(3) of the Rules, which reads as follows:- Rule 11(3) "The Tribunal may, in its discretion, accept a memorandum of appeal which is not accompanied by all or any of the documents referred to in this rule." It flows from the above that the discretion has been conferred upon the Tribunal, either to accept or reject a memorandum of appeal, which is not accompanied by all or any of the documents referred to in this rule. In the instant cases, the learned Tribunal in its discretion, after finding that certified copies of the order appealed against are not annexed with the memorandum of appeals, proceeded to reject the memorandum of appeals. Undoubtedly, in view of the aforenoted Rule 11(3) of Rules, it lies within the discretion of the Tribunal either to accept or reject a memorandum of appeal, which was filed without the documents, as mentioned in Rule 11(1). We find that the learned Tribunal has exercised its discretion in accordance with the recognized principles regarding exercise of discretion and it has not been exercised arbitrarily or in a fanciful manner. It is settled law that the discretionary orders, passed by subordinate courts are not to be interfered with by the superior Courts unless those are found arbitrary and fanciful. Reference can be made to Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139).

5. In view of the above findings, we are of the view that in case any of the document to be filed with the memorandum of appeal, under Rule 11(1) of the Rules, is not filed by any of the parties, it is within the discretion of the learned Tribunal either to accept or reject the memorandum of appeal without those documents including the certified copies of order appealed against.

6. The above referred questions are answered with the observation that discretion to accept or reject an appeal, for want of' required document, must be exercised judicially and not in arbitrary manner. H.B.T./C-24/L Order accordingly.