JUDGMENT MUHAMMAD SAIR ALI, J.-- This petition is directed against the order, dated 24.3.1997 of Income Tax Appellate Tribunal. Respondent No. 2 partly accepting the departmental appeal and also order, dated 26.7.1997 rejecting petitioner's application to refer certain questions to this Court.
Against Tribunal's order dated 26.7.1997 rejecting petitioner's application under Section 136(1) of Income Tax Ordinance, 1979, petitioner had a remedy to i.e a petition before this Court under Section 136(2) of the Ordinance and as such the learned Legal Advisor of the Department has objected to the maintainability of the present petition.
2. To answer this objection the learned counsel for the petitioner had made the following submissions that:-
(i) 0n 1.7.1997 the law had changed. Section 136 was substituted to provide for an appeal against the order of the Tribunal passed under Section 136 of the Ordinance. And that against the order, dated 26.7.1997 (which was passed after 1.7.1997), the appeal could not be filed as it was not an order under Section 135 of the Ordinance. The reference under Section 136(2) also could not be filed upon change of law with effect from 1.7.1997.
(ii) The impugned order, of the Tribunal being patently unlawful, a writ petition could be jr competently filed. Reliance was placed on an "unreported judgment pronounced in Writ Petition No. 2817 of 2002 titled Omar Faruq v. I. T.A. T. Wherein a writ petition was accepted and in the petition holding that the Tribunal's order was patently illegal, case was remanded to the learned Tribunal for fresh decision.
(i.e) Petitioner's application under Section 156 of the Ordinance for rectification of the order of the Tribunal, was also rejected on 26.7.1997 and qua such order of the Tribunal refusing to rectify its order, no remedy of appeal or reference was available as per the law laid down by an honourble Court in case reported as Messrs Hong Kong Chinese Restaurant, Main Boulevard Gulberg, Lahore v.
Assistant Commissioner of income Tax, Circle-6, Lahore (2002 PTD 1878).
(iv) it was a bona i.e impression of the petitioner that upon change of law on 1.7.1997, no remedy was available to the petitioner.
3. Without going into the legal controversy as to the maintainability of the writ petition, suffice to state that if the order of the Tribunal is patently unsustainable, the petitioner's writ petition cannot be held to be incompetent after six years of its institution merely because an alternate remedy was available for which limitation had long expired, in a similar situation this Court in the case of International Body Builders v. Sales Tax Officer, Lahore and others (1980) 41 Tax 60 (H.C. Lah.) = 1979 PTD 488 held that it is now well- established that it is a rule of practice and not of law for this^Court to entertain petition despite the facts that another remedy was available. The question to be considered in all such cases is whether the remedy available under the law is efficacious, speedy and shall provide a petitioner with the relief claimed, it was further observed that:- . "it will, therefore be against the cause of justice to throw out this petition after seven years, on that objection and ask the petitioner to i.e a reference which is already barred by * time."
4. For the reasons stated by learned counsel for the petitioner and for the ratio laid down in the above- referred cases, I am inclined to hold that the present petition can be maintained by the petitioner.
5. The nature of order passed by the learned Tribunal also impels me to exercise may power of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan. The impugned order is neither self-explanatory nor speaking. The appeal has been decided by the learned Tribunal without giving any reasons or grounds thereto. Adoption of rate at Rs.5 per kilogram for the purpose of addition has not been substantiated by any reasoning or basis. The learned Tribunal has only decided the appeal by reproducing Assessing Officer's order and contentions of parties.
Such approach is not reflective of application of independent judicial mind and is obviously shorn of rationale and reasons for the conclusions recorded therein. Since CIT (Appeals) had deleted the addition by accepting the declared average sale upon controverting each ground given by the Assessing Officer, therefore, the learned Tribunal as the second Appellate Authority, was obliged to deal, reflect upon and reverse the findings and reasons given by CIT (Appeals). The impugned order cannot but be held to be arbitrary and a product of non-applicability of mind.
6. For the above reasons, this petition is accepted and impugned order of the learned Income Tax Appellate Tribunal is held to be without lawful authority and of no legal effect. Interest of justice demands that case be remitted back to the learned Tribunal for re-deciding the appeal in accordance with law. The appeal shall be deemed to be pending before the learned Tribunal. Since the case has been remitted back to the learned Tribunal for re-decision, therefore, this Court has been conscious in not making any observations on merits of the case to avoid prejudice to any of the parfield^. Parties are left to bear their on costs.