' MUHAMMAD JAWED ZAKARIA, JUDICIAL MEMBER --- Today, when these appeals came up for hearing no authorized representative appeared on behalf of the appellant despite proper and valid service of notice.
2. Earlier these appeals had been fixed so many times, The appeals were filed on 17.01.2013. The appeals were fixed on 5.9.2013 and on the written request of the appellant the case was adjourned on the date to be fixed. Subsequently, the appeals were again fixed on 16.05.2014 and the appellant sought adjournment which was granted. Again these appeals were fixed for 24.8.2014 and again adjourned for 23.10.2014 on the written request of the appellant. However, today, one employee named Syed Shabbir Hassan Zaidi, appeared and tried to move application for adjourment which- this Tribunal refused to accept as the .Said employee is not authorized person to attend and address the Court. The appellant's counsel is a reputable Chartered Accountant firm and there are seven. Learned authorized representatives appearing on behalf of this firm and these names with endorsement/appetence are duly appearing in the Special Power-of-Attorney duly executed in their favour.
3. The learned authorised representatives of the Firm listed in the Special Power-of- Attorney/Vakalatnama have declared that by virtue of Section 223(1) of the Income Tax Ordinance, 2001 they are being qualified to appear and represent the taxpayer in connection with the hearing of the Income Tax Appeal before the Appellate Tribunal, therefore, in the absence of any authorised person the other counsels signing, and executing the Special Power/Vakalatnama is bound to attend on behalf of the appellant. The said Section 223 of the Income Tax Ordinance, 2001 is reproduced hereunder for ready reference:- "223. Appearance by authorised representative.--
(1) Any taxpayer who is entitled or required to attend before the Commissioner (Appeals) or the Appellate Tribunal in connection with any proceeding under this Ordinance may, except when required under Section 176 to attend personally, attend by an authorised representative.
(2) For the purposes of this section and subject sub section (3), an authorised representative of a taxpayer shall be person who is a representative of the person under Section 172 and any of the following persons, namely:---
(a) A relative of the taxpayer;
(b) A current full-time employee of the taxpayer;
(c) Any officer of a scheduled bank with which the taxpayer maintains a current account or has other regular dealings;
(d) Any legal practitioner entitled to practice n any Civil Court in Pakistan;
(e) Any accountant; or
(f) Any income tax practitioner."
4. From perusal of the above-quoted section it is abundantly clear that first right of appearance before the Commissioner or the Tribunal is of the taxpayer, or the taxpayer's employee, its relative and secondly, if for some reasons he is not capable or does not wish to attend personally he may appoint an authorized representative as envisaged under this section. The said person namely, Syed Shabbir Hassan Zaidi, neither an employee of the taxpayer nor he qualified ITP registered by the FBR. Who can be Income Tax Practitioner, the definition of the same has been provided under sub-section (11) of Section 223 of the Income Tax Ordinance, 2001 which is reprduced as under:- ' income tax practitioner means a person who is registered as such by the [Board], being a person who possesses such qualifications as may be prescribed for the purposes -Df this section or who has retired after putting in satisfactory service in the Income Tax Department for a period of not less than ten years in post or posts not below that of Income Tax Officer.
5. Thus, an Income Tax Practitioner means a person registered as such by the F.B.R. Out of different categories of persons mentioned in sub-section (11) including retired officials of the Inland Revenue (Income Tax Department) not below the rank of Income Tax Officer, who had remained in 10 years satisfactory service. The person who tried to move the adjournment application is neither a registered ITP nor a taxpayer's employee. An Advocate or Chartered Accountant was although entitled as of right to appear, act and plead before Tribunal in Pakistan.
6. At this juncture we may quote Rule 27 of the Appellate Tribunal Inland Revenue Rules, 2010 for the sake of ready reference:--- "27. The Tribunal may, if sufficient cause is shown, adjourn the hearing of appeal or application on a request made by the party or authorized representative and no request for adjournment sent through post or fax may be entertained."
(Bold and underlining by us for emphasis)
7. The above Rule manifestly provides that adjournment request can be made either by a party or his authorized representative personally. Hence, addressing to the Court or moving any application by a stranger/unauthorized/Incompetent person is not permissible. The counsel of the Appellant being the largest Chartered Accountant firm in Pakistan have many qualified learned Members to attend the proceedings. The plea taken by the unauthorized person seeking adjournment again on the pretext that the learned counsel for the appellant who has to conduct the above appeals is busy in some other Court (without showing any cause list), cannot be accepted when actually the other benches of the Tribunal at that time have not yet started proceedings. If one Counsel is busy in some other Courts or not in a position to attend the proceedings on one pretext or other the other learned counsel duly authorized by the taxpayer may appear and either argue or seek adjournment. We may expect from this august taxpayers company that they may maintain the decorum, discipline and highly esteem of dignity enjoyed by the Tribunal over the last so many decades and in case of emergency of one counsel to attend the proceedings the other counsel may be substituted and arrangements in this regard may be made,
8. This tendency of seeking adjournment time and again by, a reputable firm of Chartered Accountant and Tax Consultants cannot be approved. We discourage and disapprove adjournment culture by seeking the adjournments on one pretext or other. Thus, we proposed to consider the principles in this behalf as enunciated in Section 223 of the Income Tax Ordinance, 2001 in the interest of better administration of Justice and to bring certainty in this behalf. It is desirable for both counsels of the taxpayers and Department (DRs) that the adjournment applications may be filed In advance wherever possible and a copy of the same may be forwarded to the concerned representative of the other party and also before the Court at the time of hearing. At this juncture, it may be appreciated that appearance before the Tribunal even for seeking an adjournment, Is representation and only the persons authorized to appear as such can seek an adjournment on behalf of the taxpayer. It may be noted that trainee clerks or clerical staff employed by professionals are not competent to appear in this behalf in the absence of necessary authorization. Tax Bars should also take notice of this note and issue necessary directions to their worthy Members to disrourage adjournment culture.
9. We are, further of the opinion that it is cardinal principle of law that "A thing required by law or by rule, is to be done in the manner prescribed by the law, must be done in the same manner as prescribed by the law, if not done so, the entire structure built on the same would fall. This principle has been endorsed by the Honourable Supreme Court of Pakistan in the judgment reported as 2001 SCM R 838. In a case reported as (2006) 93 TAX 309 (Lahore H.C.) it was held:- "When a statute limits a thing to be done in 'a particular form, it necessarily includes in itself a negative viz. That thing should not be done otherwise"
10. The law has very well been settled by now that thing should be done according to law or should not be done at all. In support of the following case-laws can be relied:- 1.If the doing of a thing is made lawful in a particular manner then doing of that thing in conflict with the manner prescribed will be unlawful. PLD 1964 SC 536.
2. In the case reported a. 2001 SCM R 838 2003 SCM R 1505, 2011 PTD 2480 while considering the impact of violation or ion- observance of the method prescribed by law for doing an act in a particular manner or mode observed that if the laws had prescribed method for doing of a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving.Or attaining the objective of performing by law would not be permitted.
3.2011 PTD 43. If the statute required a particular act to be done in a particular manner then the act must be performed in that manner alone all other manner of doing act would "not be permissible under the law.
4.2011- PTD 1172. Acts, things and deeds should be done in the manner prescribed or should not be done at all.
5.2010 PTD 1315. Violation of mandatory-provisions of law is in fact substantive illegalities and not procedural irregularities or technicalities and violation of the same will hit the Cases" fatally.
6.2009 PTD 2074. Where power was given to do a certain thing in certain way; then that thing must be done in that way or not at all and other methods of performance not so prescribed were necessarily forbidden.
7.2007 PTD 1292. When law requires a thing-to be done in a particular manner, if not so done the same shall be nullity in the eyes of law.
8.2009 PTD 1919. As the order passed under Section 122(1) of the Income Tax Ordinance, 2001 had been declared by the Appellate Tribunal to have been passed without any lawful jurisdiction coupled with the fact that the addition made under Section 111(1)(a) of the Income Tax Ordinance, 2001 had been held to be not tenable in law, the penalty order was also liable to be quashed.
11. We may further observe that seeking adjournment on one pretext or other is against the National Judicial Policy which speaks speedy disposal of the case. Moving Applications time and again by the Counsel of the appellant in the instant case is tantamount to defeat the ends of speedy and meaningful dispensation of justice. The litigant parties may not take un-necessary adjournments and they ought to strictly adhere and follow the National Judicial Policy. In the interest of speedy dispensation of justice and to meet the requirements of National Judicial Policy announced by the Supreme Court of Pakistan, it is hoped that the Counsel of the Appellant may be cautious in future while taking adjournment.
12. In view of the above discussion, we are left with no option but to dismiss all the six appeals in default under Rule 22 of the Appellate Tribunal Inland Revenue Rules, 2010.