2005 PLP (Trib (PTD)

(g) Income-tax

Review

Same judicial forum is not vested with the powers to review its own order specially when the issues involved had been discussed threadbare. Nemo for Applicant. Ahmad Nauman Sh., I.T.P. for Respondent. Date of hearing: 27th July, 2004. Through this miscellaneous application, a request has been made on behalf of the Revenue that the order passed by the learned Tribunal in this case vide ITA No.2429/LB/2000 (Assessment Year, 1998-99), dated 23-9-2002 may be rectified after providing the applicant a chance of re submitting/arguing the case on factual as well as legal issues.

2. None has turned up on the date fixed for hearing of the present miscellaneous application i.e. on 27-7-2004, despite proper intimation made at the relevant quarter by way of sending call notice. It is, therefore, decided to proceed ex parte in absence of the learned Legal Advisor (LA) by resort to Rule 20(2) of the ITAT Rules, 1981. On the other hand, Mr. Ahmad Nauman Sh., ITP was present and has been heard.

3. Since, the averments/contentions raised in the miscellaneous application remained unsubstantiated, therefore, that stand rejected on account of being non-prosecution.

4. Even otherwise, the present miscellaneous application is not maintainable on merits. The reason advanced for seeking rectification of the aforesaid Tribunal's order is that inordinate delay in recording the order and receiving the same has caused prejudice to the Revenue not only in terms of delay in deciding the issues but also on merits, as the arguments made at the time of hearing, in defence, both on factual as well as legal issues have not been addressed properly in the order, dated 23-9-2002 due to afflux of material time. Reference in this regard was placed upon the reported judgments cited as 2003 PTD 575 (H.C.), PLD 2003 (SC) 823 and PLD 1985 (Kar.) 95.

5. What happened in this case was that the appeal was heard on 6-4-2002 and the order was passed within 6 months from the date of hearing of the case i.e. on 23-9-2002. A detailed judgment was rendered on all the issues raised before the Bench after hearing both the learned Representatives appearing at the Bar particularly the learned Legal Advisor who argued the case on behalf of the Revenue. Although, copy of the Tribunal's order was received by the applicant after some delay due to administrative problems but rectification of the Tribunal's order cannot be sought on this ground. There is no cavil to this proposition that when the statute confers a certain duty upon an officer, this is that officer who has to make up his mind and pass the order in accordance with law and exercise his jurisdiction after having taken cognizance to the impugned orders as well as the arguments advanced by the parties in appeal and the documents furnished, if any, by them. It would not be out of place to mention here that generally the arguments advanced by the parties in appeal are noted down in the Court register besides nothing citations of the cases-law relied upon by either party in his support/ defence. That register is always consulted at the time of delivering the judgments. This aspect of the case cannot be ignored that one may take more time in deciding the controversy involved in the cases related to Fiscal Statute and passing the order thereafter because tax liability of the subject is to be determined. That is why the Legislature has not prescribed any time limit in the statute book for rendering judgment by the appellate authorities after hearing the appeal or concluding the arguments.

6. We remember that once an attempt was made by the Legislature to fix the period of time for disposal of the appeal which was six months in accordance with subsection (7A) of section 135 of the Income Tax Ordinance, 1979. This limit of time was linked with the date filing of the appeal. It was stated therein that it would start running from the end of month in which the appeal under subsection (1) of section 34 is presented to the Tribunal and if no order was made before the expiration of six months, the relief sought by way of the said appeal was to be deemed to have been given. However, the period for which hearing of appeal was adjourned at the request of the applicant that period of time had to be excluded in order to calculate the limitation. This provision had to come into force on a date to be notified by the Tribunal which would not be later than July 1, 1992. But ultimately, this limitation on the Tribunal for notifying the said date was omitted by the Finance Act, 1992. The wisdom behind was that since the Income Tax is a fiscal statute, therefore, the subject may not be taxed heavily by rendering a judgment or passing the order hurriedly.

7. So far as the case-law referred to above are concerned, the decisions in all those cases rest around altogether distinguishable facts and as such are not being taken into consideration for disposal of the present miscellaneous application filed at the instance of the Revenue. For example, in the first case cited as 2003 PTD 575 (H.C.), the revision petition was decided by the Member, C.B.R., under the administrative hierarchy of the Customs Act, 1969, after two and half of years from the date of hearing of the revision petition which was certainly a considerable delay. Likewise, the other cases relied upon are not at all squarely applicable to the facts stated in the present miscellaneous application being the decisions rendered in those cases are in the nature of civil proceedings where the law for deciding the cases are quite different viz the fiscal statute. Thus, the procedure prescribed in Civil Procedure Code is not generally applicable to the matters relating to the fiscal law while delivering the judgment.

8. In view of foregoing discussion, we are inclined to hold that a judgment cannot become invalid merely for the reason that the same was IC given after the expiry of several months from the date of hearing of the arguments. It. is also imperative to mention here, that not only the Order XX, Rule 1 C.P.C. or Rule 5 of Chapter-IV of the rules and orders of the High Court of Judicature at Lahore, Volume-V but also the Fiscal Statutes has not prescribed time for pronouncement of judgment. Nevertheless, it is desirable to deliver the judgment without inordinate delay so that the justice must not only be done but manifestly appear to be done. Anyhow, the higher appellate Courts are competent to declare any order passed by the subordinate Court/authority to be invalid provided it is noticed by them that certain grounds of appeal have left un-adjudicated or the documents so furnished remained unnoticed or the order so passed was without lawful jurisdiction and not otherwise.

9. Coming to the facts of the present case, it cannot be held that invalid order has been passed by the Tribunal on 23-9-2002 as the material evidence available on record has escaped consideration by the Bench while rendering the judgment. Had it been so, a duly sworn affidavit of the legal adviser should have been filed or it should have been demonstrated in the application that certain material or piece of evidence /arguments have not been considered by the Bench. All these factum are missing in the instant application. Conversely, the order has been passed by the Tribunal after hearing the parties in appeal and after having taken cognizance to the facts of the case in its entirety and the cases-law as well as the material relied upon by the parties in appeal. We, therefore, hold that a valid order has been passed by the Tribunal although that was passed within a period of six months from the date of concluding the arguments. In fact the Department under the garb of miscellaneous application wants to acquire another round of hearing of the appeal which is not permissible under the Income-tax Ordinance particularly, when the Tribunal has already refused to refer the question(s) of law proposed by the Department by exercising powers under section 136(1) of the Income Tax Ordinance, 1979. Appropriate course available with the Department was to file the reference application to the High Court in terms of section 136(2) of the Income Tax Ordinance, 1979 instead of resorting to file the miscellaneous application.

10. Actually, the scope of rectification/ amendments in the Tribunal's order under section 156 of the Repealed Income Tax Ordinance, 1979 read with section 221 of the New Income Tax Ordinance, 2001 revolves around the mistake if brought to its notice either by any income tax authority/the Commissioner (Appeals) or the Appellate Tribunal which should be apparent from the record. When viewed the contents of the miscellaneous application in this perspective, no mistake apparent from the record could be pointed out by the applicant considering which the Tribunal can amend or rectify its order. We further hold that the application for rectification of mistake is misplaced, as no mistake or error patent from the record has been pointed out. The purport and the tenor is, in fact, to review the order already made by the Division Bench, of this Tribunal which is obviously not warranted by the judicial propriety. It is also trite law that the same judicial forum is not vested with the powers to review its own order specially when the issues involved have been discussed threadbare. Since, the Tribunal vide its order, dated 23-9-2002 has elaborately discussed the issues and has made a considered decision in this behalf, therefore, there is hardly a room or justification on the part of the applicant to seek review of the decision already made by this Tribunal. Resultantly, the, present miscellaneous application is not at all maintainable.

11. In the given scenario application having been found to be totally bereft of any merits, stands rejected. C.M.A./302/Tax.(Trib.) Application dismissed.