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1998 P T D 2769

 

[Quetta High Court]

 

Before Amir-ul-Mulk Mengal, CJ. and Javed Iqbal, J

 

COMMISSIONER OF INCOME-TAX, SUKKUR ZONE, SUKKUR through The Deputy Commissioner of Income-tax, Circle-I, Quetta.

 

Versus

 

Messrs GATRON (INDUSTRIES) LTD, QUETTA

 

Income Tax Appeal No. l of 1997, decided on 22nd April, 1998.

 

 

Shakeel Ahmed for Appellant.

 

Iqbal Naeem Pasha for Respondent.

 

Date of hearing: 11th March, 1998.

 

JUDGMENT

 

JAVED IQBAL, J.—This is an appeal preferred on behalf of Commissioner of Income Tax Sukkur Zone Sukkur through Deputy Commissioner of Income Tax, Circle-1, Quetta, under section 136(1) of the Income Tax Ordinance 1979 (hereafter referred to as the Income Tax Ordinance) against the order dated 31-3-1997 passed by Income Tax Appellate Tribunal Sukkur Zone Sukkur for having decision of this Court on the following questions of law:

 

(1) Whether on the facts and circumstances of the case ITAT has rightly maintained the directions of worthy CIT(A) to add the expenses incurred on traveling for the purchase of machinery, interest paid on borrowed money for purchase of machinery and demurrage charged paid for clearance of machinery?

 

(2) Whether on the facts and circumstances of the case ITAT has rightly maintained the directions of worthy CIT(A) to allow the initial depreciation on Electric, Water, Telephones installation, Fire Fighting Equipments etc.?

 

2. Briefly stated the facts of the case are that the Assessing Officer passed Assessment Order for six Assessment Years commencing with effect from 1987-88 to 1994-95 and disallowed Allowances under the Head “Postage, Telegram, Telex Expenses” by the Assessing Authority and depreciation, installation charges were partly disallowed. Being aggrieved the respondent/Assessee preferred appeal against the Assessment Order which was decided by Income Tax Commissioner (Appeal) on different dates and once again the respondent preferred appeal before Income Tax Appellate Tribunal which was decided on 31-3-1997 whereby the appeals filed by respondent were accepted, hence this appeal.

 

3. It is mainly contended by Mr. Iqbal Naeem Pasha, Advocate that appeal in question is not maintainable being filed by Deputy Commissioner in view of the Provisions as contained in section 136 of Income Tax Ordinance, whereby Commissioner Income Tax has been shown as competent Authority for filing such appeals. It is next contended that after promulgation of Finance Act, 1997 and consequential amendment in Income Tax Ordinance, the time limit for filing such appeal has been prescribed as 60 days and being time barred this appeal is not maintainable. It is urged with vehemence that application for condonation of time cannot be considered as section 5 of the Limitation Act, is not applicable read with section 29 of the Limitation Act, and besides that no reasonable cause whatsoever has been shown for condonation of delay. It is also argued that only one appeal has been filed assailing orders made in six appeals by the Income Tax Appellate Tribunal, and as such the same deserves dismissal.

 

4. Mr. H. Shakeel Ahmed, Advocate appeared on behalf of appellant and contended that appeal could have been filed by Deputy Commissioner Income Tax as he has been authorised by the Commissioner and objection being hyper-technical in nature hardly deserves any consideration. On the point of Limitation he contended that section 5 of the Limitation Act has been made applicable by virtue of section 136(8) of the Income Tax Ordinance, and plausible justification has been given in the application filed under section 5 of Limitation Act that in view of change in position of law the appellant was under bona fide belief that the period of limitation would be 60 days with effect from 1997, therefore, the same was presented within such period and, therefore, the appeal would not be treated as barred by time and if the same is barred by few days the said period in view of changed situation of law may be condoned. In order to substantiate his version he referred the Provisions as contained in section 6 of the General Clauses Act which provide suitable remedy. Mr. H. Shakeel Ahmed, Advocate also relied on 1993 CLC 1367, 1989 MLD 3663 and 1992 SCMR 549.

 

5. We have carefully examined the respective contentions as adduced on behalf of appellant and for respondent in the light of relevant Provisions of law and record of the case. The main objection as to whether appeal could have been filed by Deputy Commissioner Income Tax has been examined in the light of Provisions as contained in section 136 of Income Tax Ordinance, which is reproduced hereinabelow for ready reference:

 

“136. Reference to High Court.-–(1) Within ninety days of the date upon which he is served with notice of an order under section 135, the assessee or the Commissioner may, by application is such form and accompanied by such documents as may be prescribed, required the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall, within ninety days of the receipt of such application, draw up a statement of the case and refer it to the High Court.”

 

A bare perusal would indicate that no mention whatsoever regarding any delegation of power to Deputy Commissioner Income Tax has been mentioned and furthermore, there is no authority available on record showing that Deputy Commissioner has been duly authorised by Commissioner Income Tax for filing such appeal. It is worth while to mention here that Commissioner Income Tax and Deputy Commissioner Income Tax are different entities and having their own domain of jurisdiction and in so far as filing of appeal under section 136 of Income Tax Ordinance, is concerned that can only be filed by the Commissioner Income Tax. In view of the categoric position as enumerated in section 136 of the Income Tax Ordinance, and in absence of any authority on behalf of Commissioner we are of the considered opinion that such appeals should have been filed by the Commissioner Income Tax.

 

6. We have also dilated upon the pivotal question which requires determination as to whether appeal in question is time-barred or to otherwise? It is pertinent to mention here that Finance Act, 1997 (Act XXII of 1997) was promulgated on 1-7-1997 and section 136 of the Income Tax Ordinance, was substituted as follows.

 

“136 Appeal to High Court.-–(1) An appeal shall lie to the High Court in respect of any question of law arising out of an order under section 135.

 

(2) The appeal under this section shall be filed within sixty days of the date upon which an assessee or the Commissioner is served with notice of an order under section 135.

 

 

(3)

 

(4) . …………………………………………………………………..

 

(5). …………………………………………………………………..

 

(6). …………………………………………………………………..

 

(7). …………………………………………………………………..

 

(8)

 

A bare perusal would indicate that time limit has been specified as 60 days from the date upon which an assessee or Commissioner is served with notice of an order under section 135 of the Income Tax Ordinance. It is pertinent to mention here that communication of order passed by learned Appellate Tribunal is mandatory in view of the Provisions as contained in section 135(8) of Income Tax Ordinance, which runs as follows:

 

“135(8). The Appellate Tribunal shall communicate its order to the assessee and to the Commissioner.”

 

It is an admitted feature of the case that the order of Appellate Tribunal was received on 14-5-1997 and reference application could have been made within 60 days, but it was made on 21-7-1997 which is time- barred and it should have been filed on or before 14-7-1997 and as such, it is time-barred by 7 days for which no explanation whatsoever has been given but factum of delay has been taken very lightly and even the exact number of days were not mentioned regarding which condonation is required. We have not been persuaded to agree with the contention as adduced by Mr. H. Shakeel Ahmed, Advocate on behalf of appellant that the delay occurred under bona fide belief that period of limitation would be 60 days with effect from 1-7-1997 for the simple reason that appeal was filed on 21-7-1997 when the period of limitation was already specified 60 days by virtue of amendment as made by Finance Act, 1997 which came in to being on 1-7-1997. Had the appeal been filed before 1-7-1997 the position would have been different. It would not be out of place to mention here that matter is to be decided in accordance with law of Limitation as enforce at the time of institution of that matter and not according to law prevailing at the time when cause of action arose and any vested right in a period of limitation cannot be claimed in absence of clear Provisions to the contrary. In this regard reference can be made to PLD 1965 Karachi 69 and 1983 PSC 1200. The Provisions as contained in section 5 of the Limitation Act have been made applicable in such cases as are provided under section 136(8) of Income Tax Ordinance, which provides as follows:

 

“136(8). Section 5 of the Limitation Act, 1908 (IX of 19081 shall apply to an application under subsection (1) or subsection (2).”

 

In so far as section 5 of Limitation Act is concerned, it is well-settled by now that once limitation starts running no subsequent event can stop or suspend it and “that matters dealt with by the Limitation Act shall be determined according to the true construction of the word used by the legislature and the doctrine of equity, justice and good conscience cannot be applied as to over ride and abrogate the express provisions of the Limitation Act. That Statutes of Limitation should consequently be applied without regard to equitable considerations. The principles of justice and equity are applicable only when the Provisions of law are not clear and definite.” (1932 60 Cal. I (6 PC) a decision on clause (2) of Article 182; 1935, 57 All. 242 (PC) a decision on the interpretation of sections 4 and 14 of the Limitation Act; 1931, 58 Cal. 1235 PC; where their Lordships negatived a defence based upon the English equitable doctrine of part performance). Md. Shah v. Abdul (43) section 132 (133); ‘ 39) B.I. (16) 1939 Bom. 173 relied on in Jaison v. Padmanabha ( 57) T.C. 171 Hokman v. Satto: PLD 1958 Lah.:936). As mentioned earlier section 5 of the Limitation Act has been made expressly applicable as such factum of delay cannot be taken lightly as extension of the period of Limitation under this section is only to be granted when the appellant satisfies the Court that he had sufficient cause for his delay which is apparently lacking in this case. The appellant has not acted with reasonable diligence and failed to show sufficient cause for condonation of delay. There is no cavil to the proposition that Limitation Act is procedural law, and as such the Limitation is a matter of procedure only and has to be decided in accordance with the law of Limitation as enforce at the time of institution of appeal. In so far as section 6 of General Clauses Act is concerned the provisions as contained therein cannot be made applicable to this case as it is well settled by now that “if some rights have ‘accrued to a party under a law which is subsequently amended or if substantive rights of parties are concerned, the amendment made in the existing law or the enforcement of a new law will not affect such rights and the effect of such an amendment would be generally prospective.” However, no such interpretation is forthcoming in the case of amendment of a procedural law only. Amendment in procedure is retrospective m effect. ” (PLD 1964 SC 266, PLD 1969 SC Lah:786, PLD 1969 SC 187, PLD 1965 (WP) Lah: 308 and AIR 1927 Ca1.748.). The Provisions as contained in section 6 of General Clauses Act, is not applicable because “in so far as the application of section 6 of the General Clauses Act is concerned, we seek guidance from the words of Kaikaus, J. in the case of Muhammad Bashir v. Province of West Pakistan (1) that section 6 only saves rights created and liabilities incurred on account of a Statute that has been repealed, but no person has any vested right in any procedure and procedural Provisions do not create rights or liabilities referred to in this section. It shall, therefore, be seen that if any amendment is made in the procedural Provisions of law, such amendment shall operate with a retrospective effect.” (PLD 1984 Peshawar 188). In view of what has been mentioned above, we are of the considered opinion that the appeal is time-barred and section 6 of General Clauses Act hardly renders any assistance to the case of appellant. Let we mention here at this juncture that we cannot subscribe to the view as convassed by Mr. Iqbal Naeem Pasha, Advocate that Provisions of section 5 of Limitation Act are not applicable in view of section 29 of the Limitation Act. It is well-settled by now that when a special or local law prescribes a different period from that prescribed by the Limitation Act sections 3, 4, 9 to 18 and 22 prima facie apply unless expressly excluded while remaining Provisions do. not apply unless they are made expressely applicable and, thus, sections 5 to 8 and 9 to 21 do not apply unless they are made expressely applicable but as mentioned earlier section 5 of Limitation Act has been made expressly applicable vide section 136(8) of Income Tax Ordinance and as such the Provisions as contained in section 29 of the Limitation Act would have no bearing in such cases.

 

7. The upshot of the above discussion would be that we are not inclined to accept this appeal for the reasons as mentioned hereinabove and the same is dismissed in limini.

 

M.B.A./696/Q

 

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