' This Constitutional petition seeks order, dated 7-5-2003 passed by respondent No,4 whereby appeal of petitioner was dismissed for non-prosecution to be declared illegal, void and of no legal consequence.
2. Precisely, relevant facts are that petitioner is an assessee of Wealth Tax Department with the status of an individual under the jurisdiction Special Officer of Wealth Tax Circle-23, Zone-B, Lahore and his assessm ents from 1991 to' 1997 were finalized through a consolidated order, dated 25-6- 1998. Respondent No,2 by invoking provisions of section 17-B of the Wealth Tax Act, 1963 cancelled the order of Assessing Officer with a direction to him to reassess the net wealth of the petitioner including valuation of his house at Lawrence Road, Lahore, vide his order, dated 15-5-2001.
3. The Inspecting Additional Commissioner of Income-tax, Range IV, Zone-B, Lahore (respondent No,3) ignoring the fact that. Respondent No,2 had already invoking provisions of section 17-B of the Wealth Tax Act, 1963, applying the same provisions, again modified the order passed by Respondent No,1 which already stood cancelled in spite of the fact that powers under section 17-B of the Act (ibid) could not have been exercised for the second time. Petitioner aggrieved of the decision of the respondent No,3, dated 29-5-2002 filed an appeal before the Income Tax Appellate Tribunal in terms of section 24 of the Wealth Tax Act, 1963. Appeal of the petitioner was dismissed for non-prosecution by it through the order. Impugned, dated 7-5-2003. Petitioner after moving an application under Rule 20 of the Income Tax Appellate. Tribunal Rules, 1981 for recall of the order and after moving another application before respondent No,3, filed instant Constitutional petition, for the relief noted above. Respondent in,spite of notice, opted not to appear, hence are proceeded ex parte.
4. Learned counsel for the petitioner submitted that under Rule 20 of the Income Tax Appellate Tribunal Rules, 1981, appeal of the petitioner could not have been dismissed in default of appearance and instead, the appeal should have been decided on merits. He in this behalf, referred to a judgment of this Court in the can of Walayat Flour Mills, Lyallpur v. Commissioner of Income Tax, RaWalpindi (1974) 29 Tax 31. He further contended that order impugned in appeal, which was dismissed for non-prosecution was patently Illegal because respondent No,3 could not invoke provisions of section 17-B of the Wealth Tax Act, 1963, which were already exercised by respondent No,2.
5. I have anxiously considered the arguments of the learned counsel for the petitioner and have examined the record, appended herewith. Undeniably, appeal of the petitioner filed under section 24 of the Wealth Tax Act, 1963 was to be processed and heard under the Income Tax Appellate Tribunal Rules, 1981. The relevant rule dealing with the hearing of appeals is Rule 20, which reads as under:--
(20) Hearing of appeal.-(1) On the day fixed or on any other day to. Which the hearing is adjourned, the appellant shall be heard in support of the appeal. The Tribunal shall, then, if necessary, hear the respondent against the appeal and in such case the appellant shall be entitled to reply.
(2) Where on the day fixed for hearing, or any other day to which the hearing is adjourned, the appellant or the respondent does not appear, the Tribunal may processed ex parte and decide the appeal on merits.
(3)
6. The above reproduced rule manifests that Appellate Tribunal (respondent No,4) was not equipped with any jurisdiction of dismissing appeal for non-prosecution by the petitioner and instead, it was obliged to decide the appeal on merits. This Court in the case of Walayat Flour Mills (supra) while interpreting Rule 24 of the Appellate Tribunal Rules, 1948, framed under the Income Tax Act containing similar provisions of non-dismissal of appeal for default of appearance, held that order of dismissal on technical ground of default of appearance, was not justified under law and this thus the order was held to be not sustainable.
7 The operative part of the order, dated 7-5-2003 reads as under;-- "The appellant was not present. The appellant had been earlier fixed for 16-10-2002 when adjournment was sought by the assessee and assessee's request was allowed and hearing adjourned to 10-12-2002. It was subsequently again adjourned to 7-5-2003 on 20-3-2003 and the AR of the assessee duly noted the adjournment, as per written acknowledgment on file. Now, on 7- 5-2003, the assessee has not turned up and no application for the adjournment has been received in the Court. We will therefore, dismiss the appeals on account of their non-prosecution by the appellant."
It is manifest from the order of respondent No,4 that merits of the case were not touched and appeal was simply dismissed on account of non-prosecution, in spite of a clear bar for adopting such course, contained in Rule 20 or the Rules, 1981, above referred. The order impugned on the C face of it is violative of the Rules framed under section 133 of the Income Tax Ordinance, 1979. Which being ultra vires of the Ordinance, were not only binding but had the force of law and could not have been violated by respondent No,4
8. For the reasons noted above, order, dated 7-5-2003 passed by respondent No,4 is not sustainable and is declared to be void illegal and non-existent. Instant Constitutional petition is accordingly allowed and writ as played is issued with the result that appeal of the petitioner shall be deemed to be pending before respondent No,4 and will be decided on merits in accordance with law. There will be no order as to costs.