SYED MUHAMMAD FAROOQ SHAH (JUDICIAL MEMBER).---By this common order I intend to dispose of the captioned miscellaneous applications regarding condonation of time limits filed by the department along with I.T.As. Nos.718 to 720/KB/2011 as the question requiring consideration in all these applications is the same, namely, as to whether, the delay of 170 days which has occurred in filing the income tax appeal under section 131 can be condoned on the sole ground agitated by the appellant (department), regarding reorganization of the Inland Revenue Department, whereby the structural changes were introduced by the F.B.R. Though the applications are annexed with affidavit of Syed Ayaz Mehmood Commissioner Inland Revenue Zone-I RTO Karachi, but he did not state any reason or ground for condonation of delay.
2. Succinct facts leading to this case are that the instant appeal has been preferred by the Income Tax Department against the order passed by the learned Commissioner (Appeals) on dated 4-11- 2010. The second appeal before this Tribunal has been filed after inordinate delay of 170 days.
Under section 131(1)(d) of the Income Tax Ordinance, 2001 an appeal may be preferred within 60 days of the date of service of order of the Commissioner (Appeal) on the taxpayer or the Commissioner (Appeals) as the case may be.
3. Appellant/Department is represented by D.R, however Mr.Mazhar-ul-Hassan Advocate argued on behalf of the respondent/ asses see .
4. I have considered the contentions of learned DR regarding the ground for condonation of delay as set-forth in the instant applications. He has failed to explain as to whether the legal Division was in existence on the date of receipt of the order passed by the learned Commissioner (Appeal), as admittedly the said reorganization was completed in the month of February,2011,, hence there Was no reason to institute the appeals in the month of July, 2011 i.e. After about five Months delay.
5. On the other side, Mr. Mazahar-ul-Hassan advocate for the respondent/assessee argued that according to law the delay must properly and satisfactorily be explained and the excuse that the matter got delayed because of reorganization of the department is not a valid ground for extension of period of limitation and does not constitute a sufficient ground for condonation of delay. He has further argued that delay of each day is to be explained and the government department, in matter of condonation of delay cannot claim preferential treatment. The learned counsel while placing reliance on a Division Bench rulining of Hon'ble Supreme Court of Pakistan, reported in 2010 SCMR 1899 contends that the application for condonation of delay must also identify the member of the staff or an officer responsible for the delay. Their names, designation and address must be stated in the application and the application must also clearly state regarding the disciplinary' proceedings initiated against the person concerned and the stage of proceedings. It must also specify the steps taken by the department to assess the revenue loss caused by the delay in filing the appeal and the steps taken to recover it form the delinquent officer.
6. Suffice to say .That no sufficient reason or plausible cause for condonation of delay in filing the appeal have shown by the applicant/appellant department. The dictum as laid down by the Hon'ble Supreme Court of Pakistan regarding explanation of each day delay, has not been fulfilled.
The law laid down by the Hon'ble Court is that government cannot be treated in any manner differently from the ordinary litigant because the government enjoys unusual facilities for the preparation and conduct of their case and it's resources are larger and if in-spite of these facilities the government cannot comply with the requirement of law of limitation, than it is for it to take steps to have that law changed and- not to ask the courts to give a different interpretation to its provisions. Reliance in this respect may conveniently be placed on "1970 SCMR 558, 1957 SCMR 959, 1981 SCMR 37, 1979'SCMR 45 and 1979 SCMR 191." The explanation set forth in the instant application regarding condonation of delay in filing the appeal does not constitute a sufficient cause or a reasonable ground. On the contrary it is an admission. Of neglect of the concerned and lack of interest in filing the appeal, particularly there is no explanation regarding each day delay. In the case filed by the Commissioner Income Tax (Lahore Zone) reported in 1981 SCMR 37, their Lordships concluded that:-- "... We may again_clarify that according to the law each day of limitation must properly and satisfactorily be explained and the excuse that the matter got delayed because of its having remained under examination at different departmental levels is never a valid ground for extension of period of limitation and does not constitute a sufficient ground for condonation of delay. It is a matter of regret that despite this position being repeatedly clarified by this Court and the High Courts the Government Departments with all their resources continue to delay the filing of the cases in time with loss to the Government and the public interest. It is High time that the Government Departments so organize their business that legal cases are not unnecessarily delayed and are instituted in Court within the time limited for such matters.
The overall result is that all these petitions must fail on the ground of limitation and are, accordingly dismissed hereby. "
7. In a recent judgment pronounced by the Hon'ble Supreme Court, reported in 2010 SCMR 1899 (Paragraph-2) it is held by their lordships that:-- "We are pained to note that a number of cases filed by the government agencies are time-barred.
It is possible that such petitions are filed either, to oblige the litigants or to conceal the illegality, inaction and negligence of the officer/authorities concerned. The burden of decision is thus shifted on the Court system. Such manoeuvre can neither be appreciated nor approved. It is well-settled that the government functionaries are equal before the Courts. No preferential treatment can be shown to the Government/or its agencies. A stock explanation of administrative delays is normally pleaded in the condonation applications. Such explanation does not constitute a sufficient cause or a reasonable ground to be attached any weight or credibility. In fact it constitutes an admission of the guilty neglect of the concerned and thus compounds the ever existing, manage mental inefficiency and lack of decision making in the Government offices. Those seeking condonation of delay are under legal duty to explain each day's delay and to show their vigilance to avoid such delay which fatally obviates a valuable remedy."
8. As discussed above, it becomes settled law that when a party moves the court for condonation of delay, the cause of the delay must be properly explained and the, delay also must have been beyond the control of the parties. It is significant however, that the contents of the affidavit annexed with the instant application does not show any reason or cause whatsoever, beyond the control of the appellant (department) in filing the appeal after inordinate delay of 170 days. It is incumbent on the appellant/applicant, in order to have benefit of section 5 of limitation Act to explain the delay of every day that lapses beyond the period allowed for filing'of appeal. .
9. For the reasons as aforesaid, I do not see any sufficient cause or plausible reason in the instant applications for condoning the delay. Resultantly, the captioned appeals filed at the belated stage are also stand dismissed, being time barred. .