1985 PLP (Trib (PTD)

Date of hearing: 13th August, 1984. SIKANDAR HAYAT KHAN (MEMBER)‑‑This reference application at the instance of the Commissioner of Income‑tax .C .Z ..L. emerges out of the order of the Income-tax Appellate Tribunal contained in I.T.A. No.2402 of 1979‑80, dated 1‑3‑1981.

2. Briefly speaking the facts relating to this reference application are that the assessee was charged to surcharge of Rs.3,396 by virtue of Income‑tax Officer Company Circle‑VI, order, dated '15‑3‑1978. The assessee having felt aggrieved against the levy of surcharge filed an appeal on 11‑4‑1978 before the learned Appellate 'Assistant Commissioner of Income‑tax, A Range,, who following the decision of the Income‑tax Appellate Tribunal cited, as 1979 (40) Tax 47‑ (Trib.) deleted the surcharge. Against this order an appeal was filed before the Income‑tax Appellate Tribunal, Lahore Bench. The learned Judicial Member sitting singly vide his order contained in I. T. A. No.2402 of 1979‑80, dated 1‑3‑1,981 confirmed the order of the learned Appellate Assistant Commissioner of Income‑tax A‑Range Lahore.. The Commissioner of Income‑tax C ...Z .L ..has now come up .in reference against the aforesaid order of even member, dated 1‑3‑1981. This reference application was to be filed under subsection (1) of section 66 of the Repealed Income‑tax Act, 1922 while the applicant, namely Commissioner of Income‑tax C .Z L .would like to treat it under subsection (1) of section 136 of the Income‑tax Ordinance, 1979. As we have said this reference application having been filed under subsection (1) of section 66 of the Act is late by 28 days. This fact was duly brought to the notice of the Commissioner of Income Tax C . . . . . Z . . . . L. . . . vide letter No.236/80=81, dated 31‑7‑1984. In this connection we would like to record that no application for condonation of delay either accompanied the reference application or has been made at any subsequent stage upto the date hereof showing reasonable cause which prevented the Commissioner of Income‑tax C ....Z....L...in filing the reference application in time. The assumption that the reference application was filed under subsection (1) of section 136 of the Income Tax Ordinance would not, therefore, save the Commissioner of Income Tax C .....Z....L ..from the legal consequences. In any case, we are of the opinion that the reference application was filed under subsection (1) of section 66 of the repealed Income‑tax Act, 1922 according to which it should have been made within the 60 days from the receipt of the orders of the Income‑tax Appellate Tribunal, by the Commissioner of Income‑tax C .Z L In arriving at this conclusion we are strengthened by the provision of law as contained in clauses (a) and (i) of subsection (2) of section 166 of the Ordinance. Even at the cost of repetition this is set out below: "Repeal and savings.‑‑(I) The Income‑tax 1922 (XI of 1922) is hereby repealed. (2) Notwithstanding the repeal of the Income‑tax Act, 1922 (XI of 1922) and without prejudice to the provisions of section 6 or section 24 of the General Clauses Act, 1897 (X of 1897).' (a) Where a return of income has been filed before the commencement of this Ordinance by any person for any assessment year, proceedings for the assessment of that person for that year may be taken and continued as if this Ordinance had not come into force: (i) any proceeding pending on the commencement of this Ordinance before 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

3. The appeal, of the assessee was pending before the learned Appellate Assistant Commissioner of Income‑tax A..R...L...on the date of coming into force of the Ordinance. This was, therefore, in terms of clause (i) of subsection (2) of section 166 of the Ordinance to be continued and disposed of as if the Ordinance had not come into force. The learned Appellate Assistant Commissioner of Income‑tax, A...R...L.... decided the appeal by virtue of his order, dated 6‑11‑1979. Against this order the Commissioner of Income‑tax C . . . . . . . . . . Z . . . . L . . . . filed a further appeal before the Income‑tax Appellate Tribunal which was disposed of by my brother, the Judicial Member by virtue of I.. T. A . No.2402 of 1979‑80, dated 1‑3‑1981. From these facts on record it is evident that the appeal of the assessee was pending before the Appellate Assistant Commissioner of Income‑tax at the commencement of the Ordinance and was, therefore, to be continued and disposed of by him in accordance with the provisions of section 30 of the Act, as if the Ordinance had not come into force. On account of this reason the second appeal against order of the learned Appellate Assistant Commissioner of Income‑tax A ... R ... L ... obviously by under section 33 of the Act. This was decided by the Tribunal vide I.T.A. No.2402 of 1979‑80, dated 1‑3‑1981 and order of the Tribunal was made available to the Commissioner of Income‑tax C.. .Z...L....on 25‑3‑1981 under clause (g) of subsection (4) of section 33 of the Act. According to the well‑established proposition of law the commencement of lis carries with it an implication that the rights of appeal then in force remain available to the parties thereto until the final disposal of the lis. There is also no dispute with regard to the fact that the chain of appeals in furtherance of the lie are considered one legal proceeding. Consequently a right of appeal is governed by the law as it exists on the date of the commencement of this lis and it is to be governed by the law as it prevails at the relevant time and not in accordance with the law which prevails at the time of filing of the appeal, unless it is expressly provided by a subsequent legislation or is taken away by necessary implication or intendment. In this case the Legislature has on the contrary, specifically provided that any proceeding pending on the commencement of the Ordinance before 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. We are, therefore, in no manner of doubt with regard to the fact that the period of limitation in this reference application is governed by the provisions of subsection of section 66 of the Act. In arriving as this conclusion we have relied on a Full Bench decision of this Tribunal reported as 1984. P T D (Trib.)

124. This period of limitation is 60 days in the reference before us. On account of the fact that the Commissioner of Income‑tax received the order of the Tribunal on 25‑3‑1981 and filed a reference application before us on 21‑6‑1981. The said reference application is, 1 in our opinion, late by 28 days. The Commissioner of Income‑tax note having filed an application for condonation of delay either at the time of filing of reference application or, subsequently before us till to date has led us to conclude that he has no reasonable cause to furnish for the late filing of this reference application.. This is accordingly treated as out of time and is dismissed in limine. M. B. A. Application dismissed