NAZIR AHMED (JUDICIAL MEMBER).---The titled miscellaneous applications have been filed at the instance of the registered person/applicant. Through MA (Cond.) No.37/LB/2011 the registered person seeks condonation of delay in filing of Miscellaneous Application bearing MA No.29/LB/2011 whereby recall of ATIR order dated 8-12-2010 recorded in STA No.2068/LB/2009, has been sought.
Mr. Khubaib Ahmad, Advocate for the 'applicant/registered person and Miss Samia Ijaz for the Revenue/respondent are present.
2. The learned counsel has apprised the court that the appeal of the registered person bearing S.T.A. No.2068/LB/2009 was dismissed for non-prosecution by this Tribunal vide order dated 8-12- 2010. Therefore, miscellaneous application has been filed seeking recall of the ATIR order dated 8- 12-2010, which is time barred by six days. The main cause of delay in filing of miscellaneous application is due to unavoidable circumstances. He has emphasized that by delaying the miscellaneous application the applicant did not stand to gain undue benefit nor the delay on his part creates a valuable right in favour of the department. The learned counsel of the registered person has vehemently contended that delay in filing of miscellaneous application was not deliberate or intentional. He, therefore, prays for condonation of delay in filing of miscellaneous application. In order to lend credence to his stance, he has placed reliance on a reported judgments cited as 2002 PTD 506 (H.C. Lah.), 2002 PTD 608 (H.C. Lah.) and GST 2003 CL 601 (H.C.
Lah.).
3. On the other hand, the learned DR opposes the line of arguments adopted by learned AR and prays for rejection of miscellaneous application for condonation of delay.
4. We have considered the arguments advanced by the rival parties and also carefully gone through the .Relevant record available on file as well as case-law cited at the bar. As far as, condonation of delay in filing of miscellaneous application for restoration, which is filed late by six days is concerned, the learned counsel has apprised the court that the applicant in the instant case, due to unavoidable circumstances, was unable to file the miscellaneous application within stipulated time of 30 days. The assertions made by the learned counsel carry weight being supported by pronouncements of higher appellate forums. Reliance in this respect can be placed on the reported-judgments of Honourable Lahore High Court in the case of Ashraf Dawakhana v.
Additional Collector Sales Tax, Gujranwala cited as GST 2003 CL 601, wherein it has been held as under:-- "that in Revenue matters the prayer for condonation by an assessee/citizen should all the more be considered sympathetically. It is for the reason that the notion of accrual of valuable right to an adversary after the lapse of limitation in ordinary cases of civil nature is not generally applicable to the matters of Revenue. In such cases, since it is always the State against a citizen or assessee, the interest of immediate recovery cannot be described as accrual of a valuable right. In that order, we also expressed the view that the kind of right coming into being by reason of default of a party to approach to particular forum within a specified time is not an absolute right nor does it frustrate exercise of judicial discretion wherever a condonation is provided for in a statute. Further that a tax in any manner being an exaction of money from the subject and its recovery when becoming due un-fettered by any limitation in terms of time, no valuable right could be said to have accrued to the opposite party, the State."
5. The Honourable Karachi High Court in another reported judgments cited as 2003 PTD 1329 has held that in revenue matters, the prayer for condonation of delay by a registered person/citizen should all the more be considered sympathetically, as refusing to condone the delay is an extreme step and that technicalities should not defeat the cause of justice. In the present case the main cause of delay in filing of miscellaneous application is due to unavoidable circumstances, which prevented the learned counsel of the registered person to file the miscellaneou& application in time. Moreover, the application is also supported by an affidavit. The said affidavit is not rebutted by counter-affidavit by the department. In this situation, we are of the considered view that the averments made in the application duly supported by affidavit on solemn affirmation and not rebutted by counter-affidavit by the department, certainly carry weight. Therefore, the delay in filing the miscellaneous application is hereby condoned.
6. Now, we come to the miscellaneous application bearing MA No.29/LB/2011 seeking recall of this Tribunal's ex parte, order dated 8-12-2010 passed in S.T.A. No.2068/LB/2009, which was dismissed in default on non-prosecution basis.
7. The learned counsel of the registered person has apprised the court that due to illness and influenza he could not represent the registered person on the date of hearing i.e. 8-12-2010 which resulted dismissal of appeal for non-prosecution. Request letter seeking adjournment was also sent through Fax on 8-12-2010 at 8-50 a.m., which was not, probably put-up before the Bench at the time of hearing. A copy of the same is attached with the instant application. He has stressed that the default of non-appearance of the appellant/registered person on the due date on which the appeal was fixed for hearing was no' at all deliberate, wilful or intentional. According to him, the applicant/registered person has been condemned unheard on the due date, which is against the established norms of justice. It is, therefore, prayed on behalf of the applicant/registered person that in the interest of justice and fair play the ex parte order of this Tribunal dated 8-12-2010 may very kindly be recalled by its original number.
8. On the other hand, the learned DR appearing on behalf of the department/respondent prays for rejection of the instant miscellaneous application but has not been able to dislodge the line of arguments adopted by learned counsel.
9. After hearing the arguments advanced by rival parties, we deem it fair and proper to recall this Tribunal's ex parte order dated 8-12-2010, in order to provide an opportunity to the applicant/registered person to substantiate its case by following the principal of Audi-Alterm Parterm. The Assistant Registrar (Roster) of this Tribunal is directed to fix the registered person appeal bearing S.T.A. No.2068/LB/2009 for hearing as per Roster arrangement. Both the parties be informed accordingly through proper service of notice.
C . M . A. /288/Tax(Trib.) .