JUDGMENTALI NAWAZ CHOWHAN, J.- Through this -writ petition, the petitioner is making the following prayer:-"In view of the circumstances narrated above, it is respectfully prayed that this Honourable Court rftay graciously declare that due to the failure on the part of the respondent No.3 to dispose of the appeals of the petitioner filed on 30-07-2002 for the assessment years 1998-1999 and 1999-2000) within three months ended on 31-10-2002 in terms of sub-section (1), (5) and (6) of Section 132 of the repealed Income Tax Ordinance, 1979, has given rise to a valuable right in 2005 favour of the petitioner that the relief sought through the appeals shall be deemed to have been given and all the provisions of the Ordinance shall effect accordingly."
The matter, therefore, relates to an extraordinary relief provided by Section 132 to the repealed Income Tax Ordinance, 1939, which has been now incorporated in Section 129 of the Income Tax Ordinance, 2001.
2. The relevant provisions of Section 132 of the repealed law read as follows:- "Decision in appeal: (1).................................................. - (2)
(3)
(4)
(5) Where no order under sub-section (1) is made before the expiration of three months from the end of the month n which the appeal is presented, the relief .Sought through the said appeal shall be deemed to have been given and all the provisions of this Ordinance shall have effect accordingly: Provided that, where the hearing of appeal is adjourned for any period on the request of the appellant, the said period shall be excluded while computing the aforesaid period of three month: Provided further that nothing contained in this sub-section shall apply to any appeal presented before the first day of January, 1992.
(3) The provisions of sub-section .(5) shall not apply unless a notice by the appellant stating that no order under sub-section (1) has been made is, personally served by the appellant on the Appellate Additional Commissioner not less than thirty days before the expiration of the period of three months."
3. The relevant provisions of Section 129 of the Income Tax Ordinance, 2001 read as follows:- "Decision in appeal: (1)-------------------------------------------
(2) -------------------------------------------------------------------------------------- - (3)
(4)
(5) Where the Commissioner (Appeals) has not made on order an on an appeal before the expiration of three months from the end of the month in which the appeal was lodged, the relief sought by the appellant in the appeal shall be treated as having been given and all the provisions of this Ordinance shall have effect accordingly.
(6) For the purpose of sub-section (5), any period during which the hearing of an appeal is adjourned on the request of the appellant shall be excluded in the computation of the period of three months referred to in that sub-section.
(7) . The provisions of sub-section (5) shall not apply unless a notice by the appellant stating that no order under sub-section (1) has been made is personally served by the appellant on the Commissioner Appeals (not less than thirty days before the expiration of the period of three months."
Hereinafter Income Tax Ordinance, 2001 shall be referred to as the Ordinance.
4. Section 129 (5) of the Ordinance enjoins upon the Commissioner of Appeals to take a decision in appeal before the expiration of 3 months from the end of the month in which the appeal was lodged and if he fails to act a law requires him and there is noted delay through adjournment or otherwise caused by the appellant in this connection, the relief sought by the appellant was to be construed having been granted to him under the Ordinance.
5 However, Section 129(7) of the Ordinance was stipulated to put the Commissioner on notice for purposes of fulfilment of his obligations under the provisions of Section 129(5) and in case a notice is served to him informing him that the order which was required to be made within the periphery of time so prescribed, has not been made, he should take action within the next 30 days of this notice for passing such an order in appeal.
6. Obviously, where no notice under the provisions of Section 129(7) of the Ordinance is given, the benefits as prescribed by Section 129(5) cannot be availed. Reference in this connection may be made to the case of Messrs Aasmi Packages Pvt Ltd. Vs. Commissioner of Income Tax (Appeals)
Zone-A, Lahore, and three others (2000 PTD 39) and CH. Irshad Ahmad Virk Vs. Commissioner Appeals Income Tax and others (1996 PTD 279).
7. Therefore, the legal position being absolutely clear, we have now to see factually the eligibility of the petitioner in asking for the relief under the provisions of Section 129(5) of the Ordinance.
8. The petitioner has placed on record as notice dated 25th September, 2002, served by their Chartered Accountants on the Commissioner Income Tax (Appeals) Company Zone-ll, Lahore, saying as follows:- "On behalf of our above named client we refer to the captioned subject and in this connection we arepleased to submit as under: -
1. We had filed an appeal u/s 129 of Income Tax Ordinance, 1979 on 30-07-2002 in respect of assessm ent years 1998-99 and 1999-2000 and so far, no date for hearing has been fixed.
2. The assessee is being harassed by Deputy Commissioner of Income Tax adopting coercive recovery measure i.e. appointment of official receiver and seized of Bank operarion. ln view of the above facts and circumstances of the case you are kindly requested to fix an early hearing of appeal in term of Section 132(6) of the Income Tax Ordinance, 1979, and oblige."
9. The caption of the notice says:- " REQUEST FOR EARLY HEARING OF APPEAL ASSESSMENT YEAR 1998-99 AND 1999-2000."
10. This notice has a scribed notice of the Zonal Commissioner Income Tax saying:- "Approach the Zonal Cr. T"
11. Learned counsel for the petitioner further refers to a letter which has been, issued to the petitioner-Company by the Taxation Officer, Income Tax Circle 03, Company Zone II of Lahore on 22-1-2004 in the following words:- "Please refer to your letter No.Tax/03 dated 20-05- 2003 on the above noted subject.
Lt is requested that your request for giving effect to deemed order in terms of Section 132(5) of the Income Tax Ordinance, 1979 cannot be acceded to forthe reasons that: 1 No such instructions have been received from office of the learned CIT (Appeals).
2. Alleged notice under Section 132(6) was in fact a request for early hearing. This is clear from the instructions of the learned CIT (Appeals) on the said application wherein your, nave been advised" to approach the Zonal CIT of recommending your case for out of turn hearing as per practice of the Department.
This letter was placed on record to establish that the notice was received by the Commissioner.
12. Before this Court, the learned counsel appearing on behalf of the respondent's side took the view that the notice ought to have been diarized according to the procedure as laid for filing the appeals, otherwise this is no notice in law. He was categorically asked to accept or deny the factum of notice against which he could not take a very definite position especially after seeing the letter of the Taxation Officer of 22-1-2004. But went on to say that the letter having been given directly to the Commissioner, he may not have studied , it and understood its implications particularly, when the caption of the notice did not sufficiently carry the word "notice"
13. But a perusal of the letter dated 25th September shows that the provisions, of the old Ordinancei. e. Section 132(6) do find a mention in the last paragraph of the letter which was efficient enough to convey a warning to the Commissioner to act within the next 30 days as envisaged in law or suffer the consequences.
14. So the service for notice which is a sine qua non for the benefit to be given under the provisions of Section 129(5) was served.
15. What ought to have been the format of the notice?. This question is not answered by the Ordinance, whereas the Ordinance while referring to the appeals in paragraph 127 lays down what we the requirements to be fulfiled before an appeal is lodged and mentions about a prescribed form to be used for filing the appeals where as no such form is prescribed by the provisions of Section 129 of the Ordinance or 132 of the repealed Ordinance. Therefore, the law expects a notice as such to be couched in a reasonable language easily understandable conveying a warning if not acted upon. Keeping this test in view and the fact that the Ordinance was destitute of prescribing any model of such a form and going through the notice itself, this Court is of the view that is sufficiently conveys the intention of the appellant against the relief he was to ask upon failure of the Commissioner to act in accordance with law.
16. Procedures are even otherwise, not meant to defeat the end of justice or to put traps for the litigants as if a game of chess was going played in which the consequences were related.Only to the moves made during the game and where the playing of the game was its own end nor can a cause be defeated merely because of any defect in the language and as long as it is able to convey what is intended to an authority concerned.
17. . Inaptitude, laxity and careless working at the end of our senior officers particularly working in the fiscal areas where the laws are to be stringently interpreted, cannot be pressed as an excuse or any lapse. Therefore, the argument that unless this documents had been diarized it may have been them fully attended to has no impact.
18. The Commissioner immediately on the receipt of the letter should have opened the statute book to appreciate the implications showing a complete sensitivity which was required to him and if he has not done so, excuses are of no avail for defeating the benefits which the law has consciously given to the taxpayers.
19. In fact the rationale behind these provisions of law was based on a desire to activate the Tax Authorities so that they adjudicated the case in appeal with convenient dispatch particularly when a taxpayer is required to pay the amount for tax due from him before he files an appeal and gives a due notice.
20. According to the learned counsel, when there is a failure to fulfil an explicit legal requirement and there is no default on the part of a taxpayer, what the law proposes for him as a benefit as is the case of Section 129(5) of the Ordinance, it becomes a vested right. There is force in this argument. Reference in this connection may be made to the following case-law:- "1. 1993 PTD 332
2. 2000 PT D 2872 (AJK)
3. PTD 1974 SC 134
4. 1995 SCM R 1249
5. 2000 SCM R 1305
6. 1992 ITR 548 (Ind.HC)
8. 2002 CLD 557
10. 2002 CLD 1018."
21. So it is obvious that the petitioner did fulfill the requirements of Section 132 of the old law and Section 129 of the fresh law and no default on his part has been cogently pointed out and, therefore, a vested right accrues to him as is bestowed by the provisions of Section 129(5) of the Ordinance and which is a right complete and consummate and of such a character that it cannot be divested without the consent of the person to whom it belongs and it no longer open to any controversy, therefore, the relief he sought in the appeal shall be deemed to have been given to him under the law without any further question. Reference may be made to the following case: State ex rel. Milligan V. Ritter's Estate, lnd. App., 46 N.E. 736.
22. It has also been argued that the provisions of Section 129(6) were not mandatory, lt must be understood that in tax statutes those provisions which are enacted for the benefit of a taxpayer are mandatory and that provisions enacted merely to secure the orderly transactions of business are directory. Reference in this connection may be made to the followings: Corpus Juris Secundum Vol. 82 Pg. 875 U.S Cohn V. Little, D.C Ark., 101 F. Supp. 683, affirmed, C.A.. 199 F 2d 28;Cal. Skelly Estate Co. v. City and County of San Francisco, 69 P. 2d 171, 9 Cal.. Sd 28-Rayan v. Byram, 51 P.2d 872, 4 Cal. 2d 296: ln the case'Of-C/Yy of Scranton VO' Malley Mfg. Co. 19 A. 2d 269, 341 Pa. 200, it was held that whenever the law-requires a thing to be done for the protection of the taxpayer it is usually mandatory.
23. In the case of Pears Vs. Morrice (1834) 2-A, E.84, 96) it was said that a clause is directory where the provisions contain a mere direction and nothing more, but in case they are followed by such words as "that anything done contrary to these provisions shall be of no effect" then they are no longer director but mandatory. Where a mandatory provisions is invoked, the Courts are left with no discretion in their administration except to enforce.
24. In this particular case, it is obvious that when the given periphery of time is not followed, the department is then at a loss because his appeal in terms o the relief sought it to be accepted which obviously indicates that the failure in accomplishing what is envisaged' by Section 129 of the Ordinance results in penalizing the department through the statutory grant of relief sought. I, therefore, hold that the provisions of Sections 129(5) (6) & (7) of the Ordinance are mandatory and not directory or regulatory.
25. The writ petition, under the circumstances, is accepted but there will be no order a to costs.Petition Accepted: