2011 PLP (Trib (PTD)

This order shall dispose of the titled miscellaneous applications filed by the registered person seeking permission to argue the legal ground that the order was passed by an authority having no jurisdiction in the matter as per provisions of section 45 of the Sales Tax Act, 1990.

2. Learned AR for the petitioner/appellant has argued that since the grounds taken are purely of legal nature, therefore, they may be allowed to be agitated during the arguments. On the other hand learned DR has opposed the petition on the ground that these grounds were not taken before the first appellate authority.

3. Argument heard. Record perused.

4. No doubt the petitioner/appellant had not taken, before the first appellate authority, the grounds sought to be argued through the present petition for additional grounds but the petitions merit acceptance, inter alia, for the reason that honourable Lahore High Court in the case of "Haji Mehr Din v. Commissioner of Income Tax", cited as 2002 PTD 541 has observed that:- "The word "additional grounds" itself implies that a ground not already taken was being stressed. There could be a number of reasons for not taking a ground in the memo. of appeal despite its availability. It can start from inadvertence to end at negligence. Whatever be the reason when a lis is pending before a Court or a judicial forum, entertainment of an additional ground should be a rule and not an exception. Unless the purpose for making of additional ground is either to delay the proceedings or is to cause embarrassing to the parties or the Presiding Officer an additional ground must not be refused provided, it is made or raised before conclusion of hearing. Even in case where a hearing is complete but the order is not announced an additional ground should not ordinarily be refused except for the reasons noted above."

5. It was further observed that the rules of procedure are meant to advance the case of administration of justice than to thwart it. These technicalities should never undermine the advancement of purpose for which judicial or quasi-judicial forums are established by law. Every kind of such technicality can even be ignored if directly or indirectly it hinders the process of justice or due relief to which a party is found entitled to. The honourable Supreme Court of Pakistan while considering the place these technicalities in the administration of justice observed that laws some time are called an ass, but the Judge should, as far as possible, try not to become one. This view of the Court is stated in re: "Manager, Jammu and Kashmir State Property, in Pakistan v. Khuda Yar and another" PLD 1975 SC

578. The apex court in that case reiterated that mere technicalities should not be allowed to defeat the ends of justice and a departure could justifiably be made if required by the circumstances of the case.

6. By now it is well settled that the place of rules in a judicial system is more to provide strength and support rather to demolish or destruct it. The rules of a court or a judicial forum are to be interpreted in the perspective of the purpose or the reason for the creation of the forum and to advance its effectiveness rather that to discourage a petitioner at the threshold. The interpretation of the rules of a Court or Judicial forum is totally different from the Rules by which the administrative wings of the State proceed to curb crime, regulate the conduct of a particular relationship between the citizens or ensure peace, tranquility, enjoyment of civil liberties etc. The rules of a Court or a judicial forum must have only one aim i.e. that the person seeking justice must be facilitated. The rules of Court or procedure should not be used against him unless he is contumacious and, attempts to employ them against his adversary or to destroy the credibility of the forum itself. If a person charged with a simple crime to felony can be the most favourite child of law then why an assessee should not be facilitated in his defence against Revenue. A person contributing a single penny to the exchequer but contesting the remaining pound deserves more respect than a person who will be acquitted of killing a human being merely for some discrepancy in the evidence here and there. Furthermore refusal of audience by a Judicial Tribunal is an extreme step and it ought to be avoided unless necessary in the interest of justice.

7. As the grounds sought to be agitated are legal and go to the root of the case therefore, keeping in view the discussion made above, we allow the Miscellaneous Applications. The petitioner/appellant is permitted to agitate/argue the grounds mentioned in the application.

8. Both the Miscellaneous Applications are allowed. H.B.T./62/Tax(Trib.) Applications allowed.