' NOOR-UL-HAQ N. QURESHI, J.-~The appellant/ Commissioner of Income Tax/Wealth Tax, Companies Zone, Islamabad has filed the instant appeal under section 136 of the Income Tax Ordinance, 1979, against the order dated.
11.4.1996 and has requested to decide the following question of law:- ' Whether the learned ITAT was right in holding that action under section 66A cannot be taken even if an order which is erroneous and prejudicial to the interest of revenue is passed merely for the reasons that the assessing officer was apparently satisfied with the explanation of the assessee to notice under ' section 62 and has not therefore taken action under section 13 of the Income Tax Ordinance, 1979?
2. Arguments heard and record perused.
3. Learned counsel for the appellant contended that the old appeals pending since long were not placed before the Court, but the appellant has interest towards the appeal pending. On query raised by the Court about Office Objection, which was to be complied within three days, but neither the appellant nor its counsel ever cared about it to comply the Office Objection within the period stipulated.
4. The learned counsel for the appellant however is not able to reply the. Query raised by the Court regarding date of receipt of Tribunal's order mentioned in handwriting, which appears to be subsequently added to drag the appeal within time limit. The appellant himself in Para-3 of the appeal contended that limitation is expiring on 22.8.1997. While following the provisions of section 136 of the said Ordinance, 1979, introduced new enactment of filing appeal mandatory within 30 days of the date upon which an aggrieved person or the Collector is served with notice of an order under section 135 as provided by the Finance Act,. 1997, which continued till promulgation of the Finance Ordinance, 2000 known as Ordinance Number XXI of 2000, whereby again the same provisions in' which addition of sub-section (10) was introduced, which has no nexus with the present subject for filing of the reference or the appeal.
5. Learned counsel for the appellant not able clarify such delay apparently on their part even the date of receiving of order, in the office shown as 246.1997, when Commissioner was required to prefer appeal to the High Court within 30 days mandatory, which too had not been exhausted and it was going.To expire on 24.7.1997 but the appeal seems to have been preferred on 20.8.1997.
6. For the convenience, amended section 13'6 is reproduced herein below:- "Appeal to High Court.-(1) An appeal shall lie to the High Court in respect of any question of law arising out of an order under Section 135.
(2) The appeal under this section shall be filed sixty days of the date upon which an assessee or the Commissioner is served with notice of an order under section 135.
(3) Where an appeal under sub-section (1) is filed by the assessee, it shall be accompanied by a fee of one hundred rupees.
(4) An appeal filed under this Section shall be heard by a Bench of not less than two Judges of the High Court.
(5) The High Court upon hearing of an appeal under this section shall decide the question of law raised therein and shall deliver its judgment thereon containing the grounds On which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal, which shall pass such orders as are necessary to dispose of the case conformably such judgment.
(6) Subject to sub-section (7), notwithstanding that an appeal has been filed under this section, tax shall, unless recovery thereof has been stayed by the High Court, be payable in accordance with the assessm ent made in the case as modified by the order of the Appellate Additional Commissioner or, as the case may be, the Appellate Tribunal.
(7) Where recovery of tax has been stayed by the High Court by an order, such order shall cease to have effect on the expiration , of a period of six months following the day on which it is made, unless the appeal is decided, or such order is withdrawn), by the High Court earlier.
(8) The cost of the appeal shall be in the discretion of the High Court."
7. That as general principle of law if delay occurs on the part of any party, such condo nation of delay is required to be sought through making an application under relevant provision of Limitation Act or any other provision, if provided, by the special enactment in view of legal principle already sketched, that each day of delay has to be explained plausibly with reason duly supported by" affidavit.
8. It will be necessary to distinguish the respectable period for clarifying the doubt about the filing of reference or appeal against the order passed under section 135 of Act 1997 on receiving notice by the aggrieved person or Collector and reference on receiving the notice of refusal by the Appellate Tribunal on frisking an option under section 136(1) of the Ordinance XXXI of 1979 or re- promulgated Ordinance XXI of 2000 (Finance Ordinance, 2000) as the case may, the dates and periods of promulgation of such enactment are submitted herein below:-
(a) Income Tax Ordinance, 1979 came into force on 1st July, 1979.
(b) Finance Act XXII of 1997 was promulgated on 1st July, 1997.
(c) The Finance Ordinance XXI of 2000 promulgated on 1st July, 2000.
9. Therefore, any transmute by overlapping the period in preferring reference or appeal whatever the case may be, invalidates it beyond the law. And any such institution under no circumstances can be considered as legal practice, as such, is incurable under the scheme of law.
10. In the instant appeal, in Para-3, it is rather admitted by the appellant himself that he though received the order on 246.1997, but instead of preferring an appeal within a period stipulated by law, they with slackness only shifted the .Burden from their shoulders and lethargically filed the appeal even not confronted the relevant provisions of Jaw, which provides the specific period for preferring the appeal.
11. Therefore, under the circumstances, when the party ' i,e. The appellant themselves sit over their own rights with such slackness on part, ^s such, they are not entitled for the relief claimed, for which the procedural law does not provide' any favour. The appellant failed to follow the spirit of law for seeking relief claimed in the instant appeal.
12. From the perusal of the appeal it is evident that the Represent appellant had filed the instant appeal on 20.8.1997' against the order of Income Tax Appellate Tribunal dated) 11.4.1996, however, certain objections were raised by the: office and the appellant was directed to file the appeal after removing the objections within three days, but the appellant filed the "instant appeal on 7.2.2000 after removing the objection i.e. After about two and half years of the passing of period of limitation, as the appellant in para-3 of the appeal, himself has mentioned that limitation under section 136 of the Income Tax Ordinance, 1979 expires on 22.8.1997 and that too, without any application for condonation of delay. It has been the constant view of the superior Courts that inordinate delay in filing of the appeal in such-like situation, after the expiry of period of limitation would be considered as barred by time. In this regard, reliance is placed on the judgment reported as " 1997 SCM R 1224 (Lahore Development Authority v. Muhammad Rashid)". As such, the instant appeal is badly time-barred as well as the appeal in its present form is not in consonance with law.
Resultantly, the same is hereby dismissed in limine in limine. '