MUHAMMAD JAWED ZAKARIA (JUDICIAL MEMBER).---In the instant case appeal against refusal of stay by the learned CIR(Appeals), R.T.O. Faisalabad vide his Order No, C. No, 879/ST/ CIR/(A)/Fad/2014, dated 16.01.2015 on the ground that the taxpayer has not furnished the valid documentary evidence instantly in support of his appeal and the applicant has failed to make out a case of grant of stay of recovery, has been preferred.
2. Further the applicant has also filed miscellaneous application for stay of demand before this Tribunal against refusal of stay by CIR(A) thereby praying for grant of stay by this Tribunal. The averments made by the Applicant in his application are reproduced as under:-- "1. That the applicant being aggrieved by harsh and unjustified order bearing C. No, 879 dated 16.01.2015 (hereinafter referred to as, "the impugned order") for rejection of stay application by the learned CIR(A), Faisalabad has preferred the titled appeal before this Hon'ble Court which is yet to be fixed for regular hearing.
2. That now the ACIR (Enforcement-1), RTO, Faisalabad and his staff are pressing very hard to recovery of disputed amount of sales tax against which stay has already been rejected by the learned CIR(A), Faisalabad without any plausible and cogent reason.
3. That if the impugned order denying interim injunction is not suspended, the applicant will suffer irreparable loss as a sum of Rs, 6,167,979/- has already been recovered coercively through Refund Payment Order No, 01 dated 20.11.2014 hence, deposit of any additional amount on this account would cause undue hardship to the applicant and the same may therefore be dispensed with.
4. That in case, impugned recovery is not stayed, the object of filing of appeal before the learned CIR(A) will fail and the applicant will suffer an irreparable loss.
5. That it is apprehended that if the stay against the impugned recovery is not granted well in time, department will coercively recover the same by any precipitate action including attachment of applicant's business bank accounts.
6. That the contents of the main appeal may kindly be read as an integral part of this application.
7. That the applicant has a very good prima facie arguable case in his favour.
8. That the balance of convenience also lies in favour of the applicant.
PRAYER: ' Under the circumstances as mentioned supra, it is respectfully prayed that to meet the ends of justice, operation of impugned recovery notice along with order of the learned CIR(A) denying interim injunction may graciously be suspended particularly when final relief is pending at bar.
' Any other relief which this Hon'ble Court may deem fit and proper in the nature and circumstances of the cases may also be granted."
3. Mr. Khubaib Ahmad, appeared on behalf of the Applicant/ Appellant and vehemently argued that the learned CIR(A) was not justified to reject the stay application. The action of the learned.
CIR(A) is unjustified and arbitrary without applying judicious and judicial mind and ignoring the fact that despite Rs,6,167,979/- has already been recovered coercively through Refund Payment Order No, 01 dated 20.11.2014 hence, deposit of any additional amount on this account would cause undue hardship to the applicant and the same may, therefore, be dispensed with. The learned counsel for the applicant further submitted that the approach of the First Appellate Authority grossly illegal and improper and that CIR Enforcement and his staff pressing hard and have started coercive measures by issuing notice for recovery of balance demand dues under section 48 of the Sales Tax Act.
4. The learned counsel for the applicant further contended that the provision of section 131(5) and the proviso thereunder is not applicable to Sales Tax Act. The relevant proviso of section 131 of the Income Tax Ordinance, 2001 relied upon by him is reproduced hereunder: Proviso to subsection (5) of section 131(5).
"Provided that if on filing of application in a particular case, the Appellate Tribunal is of the opinion that the recovery of tax levied under this Ordinance and upheld by the Commissioner (Appeals), shall cause undue hardship to the taxpayer, the Tribunal, after affording opportunity of being heard to the Commissioner, may stay the recovery of such tax for a period not exceeding one hundred and eighty days in aggregate:"
5. The learned counsel vehemently argued that the case of the applicant relates to Sales Tax Act, hence provisions of Income Tax Ordinance, 2001 are not applicable as is evident from the perusal of the proviso reproduced supra wherein the legislature has specially used the words "recovery of tax levied under this Ordinance and upheld by the Commissioner (Appeals)", therefore, he contended that it is crystal clear that its application is restricted to Income Tax Ordinance, 2001.
6. The learned counsel for the Applicant/ Appellant vehemently contended that subsection (6) of section 132 of the Income Tax Ordinance, 2001 very much applies in this case. The subsection (6) of section 132 ibid is reproduced hereunder:-- "(6) where appeal relates to a decision other that in respect of an assessment, the Appellate Tribunal may make an order to affirm, vary, or annul the decision, and issue such consequential direction as the case may require."
7. The learned counsel for the Applicant/ Appellant laid emphasis on the words "appeal relates to a decision other than in respect of an assessment", he, therefore, prays that as the appeal pertains to other than assessm ent i,e, refusal to grant the stay, therefore, the Tribunal is empowered either to confirm the order, vary or annul the decision and issue such consequential directions as the case may require. He further asserted that it is fit case to annul the order passed by the CIR(A) rejecting the stay. In support of his arguments the learned counsel relied upon the reported judgment of Messrs Chenab Board, Faisalabad v. CIR [reported as 2012 PTD (Trib.) 941] wherein the Tribunal while granting the stay observed as under:- "If recovery of the tax demand created as a consequence of impugned order-in-original is not stayed during the pendency of the main appeal of the present appellant before the CIR(A), it will obviously cause irreparable loss to it. In this state of affairs, it will be quite expedient that the same may be stayed. Accordingly, the same is stayed till the disposal of the 'appeal by the learned CIR(A),"
8. In view of the judgment cited supra, the learned counsel therefore, prayed that the Honourable Tribunal may be pleased to, grant stay from recovery of entire demand till the decision of the main appeal by the Commissioner (Appeals) and issue directions to the concerned tax authorities for early disposal of main appeal.
9. The learned DR on the other hand, strongly objected to the stay application. He while rebutting the contention of the learned counsel for the Applicant/Appellant regarding application of proviso of section 131 he drew our attention towards subsection (2) of section 46 of the Sales Tax Act, 1990 which is reproduced as under:-- "(2) The Appellate Tribunal may admit, hear and dispose of the appeal as per procedure laid down in sections 131 and 132 of the Income Tax Ordinance, 2001 (XLIX) of 2001, and rules made there under."
10. The learned D.R. Argued that from perusal of above quoted section 46 the legislature has empowered the Tribunal to admit, hear and dispose of the appeal as per procedure laid down in sections 131 and 132 of the Income Tax Ordinance, 2001, meaning thereby, provision of section 131 would apply while dealing with stay. He further contended that balance of convenience is not in favour of the taxpayer and even otherwise the learned CIR (A) had justifiably rejected the stay application as the taxpayer has failed to produce valid documentary evidence in support of his Appeal/Application. He, therefore, prayed that the Miscellaneous Application for stay of demand be rejected.
11. We have heard both the learned counsel, carefully perused the relevant provisions of laws and record.
12. In order to arrive at the conclusion as to whether the Tribunal can grant stay when the tax levied has not been confirmed/upheld by the CIR(A) we framed the following concomitant questions so that we may arrive at proper conclusion based on the provisions of both Sales Tax Act, 1990 and the Income Tax Ordinance, 2001:- Q1: Whether, in the light of provision of Section 131(5) read with the proviso, this Tribunal is empowered to grant stay to the taxpayer when the tax levied is not yet upheld by the CIR(A) and main appeal on impugned levy/demand is still pending adjudication before the CIR(A)?
Q2: Whether, a taxpayer can avail aggregate stay for 390 days firstly, 210 days [i,e, 30 days by the CIR(A) and 180 days by the Tribunal] in the event that the tax levied has not been confirmed/upheld by the learned CIR(A) and the appeal before the Tribunal, and secondly, in case the tax levied has been confirmed by the CIR(A) and against his order, main appeal is filed along with stay application and the Tribunal as per section 131(5) of the Ordinance, 2001 grants the stay in aggregate of 180 days, then in this way the taxpayer could avail 390 days stay (i,e,, 210 days already availed before tax upheld by CIR(A) + 180 days after tax upheld by CIR(A)
(30+180+180= 390 days)?
Q.3 Whether, on the facts and circumstances of the case, this Tribunal can grant stay against recovery beyond 180 days, as per provisions of section 131(5) of the Income Tax Ordinance, 2001 during pendency of appeal before CIR (Appeals) or subsequently before the Tribunal?
13. First we would like to state the relevant extract from the order of the learned CIR(A) refusing to grant the stay which is reproduced extensor hereunder:- "GOVERNMENT OF PAKISTAN OFFICE OF THE COMMISSIONER INLAND REVENUE (APPEALS) Regional Tax Office Buildings, Jail Road, Faisalabad.
' Dated 16.01.2015 ' Subject. Application for grant of stay order against sales Tax Order-in-Original No, 05/2014 dated 26.11.2014 passed by the Assistant Commissioner Inland Revenue (Audit Unit-01), Zone-I, Regional Tax Office, Faisalabad.
The appellant, Messrs K.B. Enterprises, P-237, Tikka Gali No, 01, Montgomery Bazar, Faisalabad (STRN: 0890999939691) filed the appeal on 10.12.2014 against Sales Tax Order-inOriginal No, 05/2014 dated 16.11.2014 and submitted Misc. Application for grant of stay of sales tax dues raised in the impugned order. The call notice for hearing of stay application was issued accordingly.
2. The authorized representative of the appellant, Syed Noor-ulHassan, A.R. Appeared on 12.01.2015 and contended that the appellant has a very good prima facie case in his favour, however, he failed to submit valid documentary evidences instantly in support of his appeal. The D.R. Ifran Haider, ACIR also appeared and opposed the arguments of the A.R. Of the appellant.
3. In view of above, I find that the appellant could not make out the case to grant stay of recovery; hence the application is rejected accordingly. However, regular hearing in the appeal case has been fixed on 20.01.2015
4. This order will have no bearing on the final order in the case by the undersigned.
(Dr. Khalid Malik) Commissioner IR (Appeals)"
14. To find out the answers of the supra quoted questions relating to grant of stay by this Tribunal, we are of the considered opinion that section 131(5) read with proviso of the Income Tax Ordinance, 2001 equivocally provides that the Tribunal may stay the recovery proceedings for 180 days, if tax levied under the Ordinance and upheld by the CIR(A) the recovery proceedings cause undue hardships to the taxpayer. The said subsection along with proviso is reproduced as under:- - "131(5) Notwithstanding that an appeal has been filed under this section tax shall, unless recovery thereof has been stayed by the Appellate Tribunal, be payable in accordance with the assessment made in the case: ' Provided that if on filing of application in a particular case, the Appellate Tribunal is of the opinion that the recovery of tax levied under this Ordinance and upheld by the Commissioner (Appeals), shall cause undue hardship to the taxpayer, the Tribunal, after affording opportunity of being heard to the Commissioner, may stay the recovery of such tax for a period not exceeding one hundred and eighty days in aggregate: ' Provided further that in computing the aforesaid period of one hundred and eighty days, the period, if any, for which the recovery of tax was stayed by a High Court, shall be excluded."
(Underling for emphasizing)
15. From perusal of the provision of subsection (5) of Section 131 of the Income Tax Ordinance, 2001, read with proviso which expressly put embargo and by statute restricts the empowerment of this Tribunal to grant stay of recovery unless tax levied under this Ordinance [Income Tax Ordinance, 2001 or Sales Tax Act, 1990 as the case may be] and upheld by the Commissioner (A). In the instant case tax has been levied but not yet upheld by the CIR(A) , so the empowerment, of Bench of the ATIR while hearing stay application does not emerge in the absence of CIR(A)'s order of upholding of the levy or appeal before the Tribunal against supra order of CIR(A). We may further observe that mere refusal of the CIR(A) to grant stay does not mean that he has upheld the levy of tax under this Ordinance [Income Tax Ordinance, 2001 or Sales Tax Act, 1990] against the appeal which is pending adjudication before CIR(A). Further we are of the view that for the grant of stay under the aforesaid provision is that tax must be levied and upheld by the Commissioner (Appeals) . Both the conditions "Tax levied" and "upheld by the CIR(A) " must co-exist simultaneously. Both the limbs must co-exist together at one and the same time.
16. Further, cumulative and conjunctive reading of the above cited provisions of law, the contentions of the learned counsel for the Applicant/Appellant that as per section 131 of the Income Tax Ordinance, 2001 [specifically proviso to section 131(5)] are not applicable. According to him, under this section the Tribunal can apply the provision to section 131(5) and decide the stay application/appeal relating to income tax and not sales tax. Interestingly enough the learned counsel for the applicant has also filed stay application under section 131(5) of the Income Tax Ordinance, 2001 and not under any provision of Sales Tax Act. Hence, the assertions made by the learned counsel for the applicant are not tenable for the reasons discussed hereinafter:--
17. The relevant provision of law i,e, section 46 of the Sales Tax Act, 1990 which having immense importance to resolve the controversy is reproduced as under:-- "46. Appeals to Appellate Tribunal.---(l) Any person including an officer of Inland Revenue not below the rank of an Additional Commissioner, aggrieved by any order passed by--
(a) the Commissioner Inland Revenue (Appeals) under section 45B,
(b) the Commissioner Inland Revenue through adjudication or under any of the provisions of this Act or rules made thereunder.
(c) the Board under section 45A, may, within sixty days of the receipt of such decision or order, prefer appeal to the Appellate Tribunal.
(2) The Appellate Tribunal may admit, hear and dispose of the appeal as per procedure laid down in sections 131 and 132 of the Income Tax Ordinance, 2001 (XLIX of 2001), and rules made thereunder."
From perusal of the above quoted section, there is no doubt in our mind that the Tribunal has powers to dispose of the matter [application/ appeal] of stay which relates to Sales Tax while exercising powers under sections 131 and 132 of the Income Tax Ordinance, 2001. The law in this regard is very much clear. Subsection (2) of Section 46 of the Sales Tax Act, 1990 duly empowers the Tribunal to take up the matter of stay under section 131(5) read with proviso of the Income Tax Ordinance, 2001.
18. As far as reliance placed by the learned counsel for the applicant on the judgment reported as 2012 PTD (Trib.) 941, the same is distinguishable as proviso (1) to section 131(5) of the Income Tax Ordinance, 2001 was added on 26th June, 2012 while in the judgment relied by the learned counsel for the applicant this proviso was not existed as the judgment was delivered much earlier on 15.3.2012 before the insertion of proviso (1) to subsection (5) of section 131 of the Income Tax Ordinance, 2001, hence, the Tribunal has not considered this aspect due to non-existence of this proviso. Hence, reliance placed by the learned counsel on the above judgment is misconceived, distinguishable and not relevant.
19. The other aspect of the case is that the CIR(A) has the power to grant stay only for 30 days in aggregate under section 128(1A) of the Income Tax Ordinance, 2001 and section 45B(1A) of Sales Tax Act, 1990 which are reproduced hereunder:- "Section 128.- Procedure in appeal- Income Tax Ordinance, 2001 (1A). Where in a particular case, the Commissioner (Appeals) is of the opinion that the recovery of tax levied under this ' Ordinance, shall cause undue hardship to the taxpayer he, after affording opportunity of being heard to the Commissioner against whose order appeal has been made, may stay the recovery of such tax for a period not exceeding thirty days in aggregate .
Section 45B(1A) of the Sales Tax Act, 1990 - "Where in a particular case, the Commissioner (Appeals) is of the opinion that the recovery of tax levied under this Act, shall cause undue hardship to the taxpayer, he, after affording opportunity of being heard to the Commissioner against whose order appeal has been made, may stay the recovery of such tax for a period not exceeding thirty days in aggregate."
20. The above provisions of law clearly show/describe that the stay by CIR(A) would be only for 30 days so far as period/length of stay is concerned, however, the Tribunal has wider power to grant the stay for 180 days. By virtue of section 131(5) read with proviso the Tribunal has subject to express embargo/ restrictions/limitations and some manacles on powers to grant the stay if the stay is refused by the CIR(A) as tax levied is neither upheld by the CIR(A) nor any order was passed by the CIR(A) against the assessment/ Order-in-original, therefore, during the pendency of appeal, if the CIR(A) refused to grant the stay, the Tribunal cannot exercise the powers under section 131(5) read with proviso that would result influx of stay Applications before this Tribunal as each taxpayer may, after its stay application is rejected by the CIR(A) may file appeal and Stay application against the said refusal order before this Tribunal and enjoy 180 days stay what to speak of 30 days being in built limitatioh on CIT(A). If the learned CIR(A) grants the stay for statutory period of 30 days and after expiry thereof, the taxpayer files another application for stay before this Tribunal, in this way he would get. The stay for 210 days i,e, 30 days by the CIR(A) plus 180 days by the Tribunal. Let's suppose the scenario is changed, the CIR(A) grants the stay for 30 days during the pendency of appeal before the CIR(A) and after expiry of 30 days the taxpayer approaches the Tribunal for grant of stay and the Tribunal grants aggregate stay for 180 days then the taxpayer would have availed 210 days stay, subsequently, the taxpayer after upholding the assessment order by the CIT(A) files appeal before the Tribunal along with stay application, the Tribunal exercising powers under section 131(5) read with proviso attached with it grants the aggregate' stay for 180 days in this way the taxpayer would enjoy total stay of 390 days stay (i,e, 30+ 180=210 days already availed before tax upheld by CIR(A) and 180 days after tax upheld by CIR(A) [30+180+180=390].
Therefore, we are of the opinion that when the stay is refused by CIR(A) and tax levied is still sub- judice and not yet upheld, thus, the main appeal is lying before the CIR(A) and consequently tax levied not yet been upheld by CIR(A), the Tribunal's inherent powers have expressly been put to some fetters/embargo/restriction/limitation/barriers upon the Tribunal to grant stay to the taxpayer within the purview of section 131(5) read with proviso of the Income Tax Ordinance, 2001.
21. However, we may observe that an Appeal before the Tribunal may be filed against refusal of stay order by the learned CIR(A) as according to section 46 of the Sales Tax Act, 1990, read with section 131 of the Income Tax Ordinance, 2001, the Tribunal has statutory powers to admit, hear and dispose of the appeal. The procedure for disposal and filing of appeal by the Appellate Tribunal has been prescribed under sections 131 and 132 of the Income Tax Ordinance, read with subsection (2) of Section 46 of the Sales Tax Act, 1990 which are reproduced as under for ready reference:--
131. Appeal to the Appellate Tribunal.---(I) Where the taxpayer or Commissioner objects to an order passed by the Commissioner (Appeals), the taxpayer or Commissioner may appeal to the Appellate Tribunal against such order.
(2) An appeal under subsection (1) shall be-
(a) in the prescribed form;
(b) verified in the prescribed manner;
(c) accompanied except, in case of an appeal preferred by the Commissioner, by the prescribed fee specified in subsection (3); and
(d) preferred to the Appellate Tribunal within sixty days of the date of service of order of the Commissioner (Appeals) on the taxpayer or the Commissioner, as the case may be.
(3) The prescribed fee shall be two thousand rupees.
(4) The Appellate Tribunal may, upon application in writing, admit' an appeal after the expiration of the period specified in clause (d) of subsection (2) if it is satisfied that the person appealing was prevented by sufficient cause from filing the appeal within that period.
(5) Notwithstanding that an appeal has been filed under this section, tax shall, unless recovery thereof has been stayed by the Appellate Tribunal, be payable in accordance with the assessment made in the case: ' Provided that if on filing of application in a particular case, the Appellate Tribunal is of the opinion that the recovery of tax levied under this Ordinance and upheld by the Commissioner (Appeals), shall cause undue hardship to the Taxpayer, the Tribunal, after affording opportunity of being heard to the Commissioner, may stay recovery of such tax for a period not exceeding 180 days in aggregate.
' Provided further that in computing the aforesaid period of one hundred eighty days, the period, if any, for which recovery of tax was stayed by the High Court, shall be excluded.
132. Disposal of appeals by the Appellate Tribunal.-- ) The Appellate Tribunal may, before disposing of an appeal, call for such particulars as it may require in 'respect of the matters arising on the appeal or cause further enquiry to be made by the Commissioner.
(2) The Appellate Tribunal shall afford an opportunity of being heard to the parties to the appeal and, in case of default by any of the party on the date, of hearing, the Tribunal, or may proceed ex parte to decide the appeal on the basis of the available record.
(2A) The Appellate Tribunal shall decide the appeal within six months of its filing;
(3) Where the appeal relates to an assessment order, the Appellate Tribunal may, without prejudice to the powers specified in subsection (2); make an order to--
(a) affirm, modify or annul the assessment order; or
(b) omitted by Finance Act, 2007
(c) Remand the case to the Commissioner or the Commissioner (Appeals) for making such enquiry or taking such action as the Tribunal may direct.]
(4) The Appellate Tribunal shall not increase the amount of any assessment or penalty or decrease the amount of any refund unless the taxpayer has been given a reasonable opportunity of showing cause against such increase or decrease, as the case may be.
(5) Where as the result of an appeal, any change is made in the assessment of an association of persons or a new assessment of an association of persons is ordered to be made, the Appellate Tribunal may authorize the Commissioner to amend accordingly any assessment order made on a member of the association and the time limit in subsection (2) of section 122 shall not apply to the making of such amended assessment.
(6) Where the appeal relates to a decision other than in respect of an assessment, the Appellate Tribunal may make an order to affirm, vary or annul the decision, and issue such consequential directions as the case may require.
(7) The Appellate Tribunal shall communicate its order to the taxpayer and the Commissioner.
(10) Save as provided in section 133, the decision of the Appellate Tribunal on an appeal shall be final.
22. From perusal of the above referred sections, it is unambiguously clear that the Tribunal may dispose of the said appeal filed against refusal of stay by the CIR(A) by exercising powers under sections 132(6) read with 131(5) 1st proviso, of the Income Tax Ordinance, 2001. However, refusal of Stay order is not an assessment order, therefore, subsection (6) of section 132 would apply in this case which is reproduced as under:-- "(6) where appeal relates to a decision other than in respect of an assessment, the Appellate Tribunal may make an order to affirm, vary, or annul the decision, and issue such consequential direction as the case may require."
23. Thus, we not conceding but for the argument sake partially agree with the contentions of the learned counsel for the applicant that there are vested powers upon the Tribunal either to affirm, vary or annul the decision or issue consequential directions, then subsection (5) of section 131 would become redundant, therefore, we are of the considered opinion that subsection (5) of section 131 was logically legislated by the legislature and that's why it was separately inserted under section 131 and not in section 132 of the Income Tax Ordinance, 2001 putting embargo upon the Appellate Tribunal that the Tribunal could take the stay application for the recovery of tax levied has been upheld by the CIR(A) which was elaborately discussed in the preceding paragraphs. However, while dealing with subsection (6) the Tribunal has vast discretionary powers to issue directions to the learned CIR(A) considering the facts and circumstances of the case meaning thereby the Tribnal may direct the CIR(A) and remand back to him for further examination/reconsideration of the matter of stay or issue consequential direction as the case may be. Such discretionary, inherent, implied, implicit incidental, ancillary and necessary powers to grant stay having been restricted vide proviso to subsection (5) of section 131 of the Income Tax Ordinance, 2001 which is equally applicable to Sales Tax Act, 1990. The cumulative and conjunctive reading of section 131(5), read with its proviso of the Income Tax Ordinance, 2001 and section 46 of the Sales Tax Act, 1990 unambiguously shows that the Tribunal has been given in built statutory powers to grant stay for 180 days in total. These inherent powers are qualified, limited and some embargo/ impediment/fetters have been put upon the Tribunal through piece of legislation that stay may only be granted where sales tax or Income Tax demand---levied has been confirmed/ upheld by the CIR(A). The words "Tax levied and upheld by the CIR(A)" are not redundant as no such redundancy can be attributed to the legislature.
24. Moreover, there is no automatic stay. Mere filing and pendency of appeal shall not operate as suspension of tax demand. There is no provision in the Income Tax Ordinance or in the Sales Tax Act to support that tax levied becomes provisional or .Non-existent with the filing of an appeal or application against it or during the pendency of such appeal. It is a recognized principle of law that the mere fact of pendency of an appeal does not operate as stay of execution, nor does it affect the excitability of the decision appealed against. An order by this Tribunal staying recovery of tax levied and upheld by the CIR (Appeals) and not otherwise is a restriction on imposed by inbuilt provision expressly and clearly.
25. We may further emphasis even at the cost of repetition that it is also recognized cannon of law that mere fact of pendency of an appeal does not operate as stay of execution, nor does it affect the excitability of the decision appealed against. An order by this Tribunal staying recovery of tax created by the Assessing Officer/OIR/TO/CIR and upheld by the CIR (Appeals). This matter is one of discretion of the Appellate Tribunal, no doubt, which is to be exercised judicially. The Primary consideration should be "After upholding by CIR(A) the undue hardship shall cause to the taxpayer" and for that reason it has been made obligatory that the Appellate Tribunal is of the opinion that the recovery of tax levied under Income Tax Ordinance, 2001/ Sales Tax Act, 1990 as the case may be and upheld by the Commissioner (Appeals), shall cause undue hardship to the taxpayer:--
26. The other main consideration ought to be whilst considering stay application that, the balance of convenience in relation to the interest of the both (Tax Payer v. Tax/Revenue Department) and to save injury accruing to any one of them. The applicant seeking a stay should show that there is likelihood of substantial loss to it, if the stay is not granted. For that matter/ reason the applicant shall satisfy the Tribunal by reasonable grounds and it will be for the applicant/ appellant to satisfy the Tribunal for forming an honest opinion that the substantial loss/ undue hardship that would be caused if stay is not granted. Mere mention of the phrase "Substantial loss will accrue if stay is not granted" is not sufficient compliance of the duty cast on the applicant seeking stay of recovery of tax, levied without elaborating ground or grounds for "shall cause undue hardship". It, however, does not mean that Tribunal would withhold stay of tax demand without keeping in view or without applying mind to or without examining or prima facie attending to facts and circumstances of each case. However, the Tribunal seized with applications for stay should have regard to facts and circumstances of the case in order to determine whether or not there is sufficient cause of undue hardship for stay of tax recovery.
27. If we look at the general practice of the higher appellate fore, the following points/principles are considered before grant of stay/ Injunction:-- a. Discretionary relief. The granting of any injunction is purely within the discretion of the Court subject to fitters/ restriction/ limitation expressly and clearly imposed by the statute. This discretion should be exercised in favour of only that party who comes to Court with clean hands.
Even if the conditions as laid down for the grant of temporary injunction are fulfilled it may be refused as it is a matter of discretion of the Court. b. General principles for grant of injunction. An injunction is a form of equitable relief and it is to be issued in aid of equity and justice. But not to aid injustice to any party. In order to obtain an interim relief, the applicant has not only to establish that he has a strong prima facie case, but he has also to show that the balance of convenience is on his side and that he would suffer irreparable injury unless he was protected during the pendency of his appeal. Last but not the least, the applicant has to prove categorically that the applicant shall cause undue hardship if recovery proceedings are not stayed. c. Where no serious controversy is raised in the application, mere allegation without producing any prima facie material to substantiate it or pointing out circumstances to justify it can hardly lead to the conclusion that there is a prima facie case justifying grant of injunction.
28. We are of the considered view that powers to grant interim relief is judicial or at least quasi- judicial in nature and the matter of stay is purely of discretion in nature of the authority which ought to be judiciously exercised. At this juncture we may observe that the powers of the CIR(A) are of widest amplitude while dealing with appeals before him. It is trite law that the CIR(A) has the powers of granting stay during the pendency of the appeal before him. As per provisions of law, the stay may be granted for a limited and specified period as in-built in the provisions of law.
We have also noted from perusal of the show cause notice issued to the taxpayer/ applicant that an amount of Rs,6,167,979/- had already been deducted vide refund payment order No, 01/2014 dated 01.01.2014 on account of recovery of government .Dues adjudged vide Order-in-original. The learned CIR(A) has totally ignored this fact and has blatantly refused the grant of stay which caused hardship to the applicant/ taxpayer. Therefore, it is obligatory upon the learned CIR(A) either to grant the stay or should decide the appeal out of turn to avoid causing any injury, misery, injustice, unfairness and harassment to the taxpayer. The learned CIR(A) ought not to forget, no doubt, that taxes are the life blood of any government, but it cannot be over emphasized that the blood is taken from the arteries of the taxpayers, and therefore, the transfusion has to be accomplished in accordance with the principles of justice and fair play.
29. From a bare reading of proviso of subsection (5) of section 131 of the Income Tax Ordinance, 2001 quoted supra, it is crystal clear that after the amendment made by the Finance Act, 2012 that the Appellate Tribunal against demand /tax levied was divested of his powers to grant stay, which is not yet upheld by the CIR(A). The language of the amendment brought about by the Finance Act, 2012, i,e, proviso to subsection (5) of section 131 of the Income Tax Ordinance, 2001, is unambiguous. The Appellate Tribunal has inherent jurisdiction to grant the stay that inherent, implied, ancillary, explicit, incidental and necessary power which were rendered in oblivion of the language of the amendment and the unambiguous law regarding the concept of stay proceedings in relevant fiscal law under the Income Tax Ordinance, 2001/Sales Tax Act, 1990 and follow the legal provisions as amended vide Finance Act, 2012 and hold that the ATIR lacked jurisdiction to grant the stay when the appeal is pending before the CIR(A) and tax levied/demand has not yet been upheld by him [CIR (Appeals)]. The said amendment in Section 131 is beneficial, benevolent and curing in nature. It is in the nature of relief to both the parties i,e, taxpayer as well as to the Department and it is for speedy and meaningful dispensation of justice enabling the learned CIR(A) to decide the appeal quickly and without delay.
30. However, this amendment does not curtail the powers of Tribunal. In fact this has enhanced the power of Tribunal and is also beneficial for both the parties. The concept of early disposal is obviously for the benefit of taxpayer and the department. This has also geared up the appellate machinery at rate of knots and speedy trial of the case and to avoid protracted litigation between the parties and to rescue the taxpayers as well as department from vexing twice for the same cause and quick dispensation of justice on blocked revenue. The CIR(A) is included in the definition of an Income tax Authority under section 207 of the Income Tax Ordinance, 2001. CIR(A) is working specially under FBR Member (Legal) and fully falls under the dominance of FBR.
AO/OIR/DCIR/ACIR/CIR and so also CIR(A) working under one umbrella of FBR and CIR(A) working under the Member Legal. Just for quick disposal of the case and to save the taxpayer from unnecessary litigations the legislature has withdrawn the powers of remand back of assessment order knowingly, deliberately and willingly as CIR(A) is special valuer to value the assessment by further enhancing or confirm or modifying or annulling the income of the taxpayer by conducing inquiry, hence he has been given wider powers then the Appellate Court, under the code of Civil Procedure. His competence is not to be restricted to dealing with subject matter of appeal. CIR(A) may examine all matters covered by the assessment order. As discussed above, he may enhance assessment subject to fulfillment of requirements of law. Therefore, in our opinion, the CIR(A) is not enjoying powers of the appellate court as he is not an independent, impartial though he ought to be. Further, by virtue of section 127 of the Income Tax Ordinance, 2001/Section 45 of the Sales Tax Act, 1990, there is right of appeal only to the taxpayer (person) and not to the revenue department. Hence, the department cannot appeal against any order of the income tax authorities. Though the department has other remedies against such orders of the DCIR/OIR/CIRs by initialing proceedings under sections 122, 177, 221 etc. Of the Income Tax Ordinance, 2001 or under relevant provision of Sales Tax Act, 1990 by taking action.
31. In the light of the above discourse, obviously the answer to the above questions framed by us would be in "negative" as no powers lies with this Tribunal to grant the stay when the appeal is pending before the CIR(A) and such demand/ tax levied has not yet been confirmed/ upheld by him. The assertions of the learned counsel for the appellant that Income Tax Ordinance, 2001 is not applicable in the case of sales tax matter are also not tenable because of proviso to subsection
(2) of section 46 of the Sales Tax Act wherein it has been clearly provided that sections 131 and 132 of the Income Tax Ordinance, 2001 and rules made there under are applicable. This is general practice followed since decades and General Clauses Act, which provides that uniformity of expression in cases where is identity of subject-matter because the General Clauses Act is consolidating in nature. Therefore, both the sections 131 and 132 of the Income Tax Ordinance, 2001 and Section 46 should be read on cumulative and conjunctive basis being consolidating in nature.
It is settled that if the language of the statute is clear and intelligible and does not admit of two meanings, effect must be given to the words used and thus the intention of the Legislature must be carried out.
32. With great concern we would like to further observe that the stay was refused by the learned CIR(A) on 16-1-2015 while the appeal was filed by the Taxpayer on 10-12-2014, therefore, the learned CIR(A) while rejecting the stay could have taken the main appeal and get it decided on the same date i,e, on 16-1-2015. The main appeal is still pending before him despite lapse of more than 52 days. Therefore, in our considered opinion, the Government functionary including Tax Officer/CIR/CIR(A) henceforth is to work hand in hand with the judiciary to usher in an age of speedy and meaningful justice delivery system in our beloved and beautiful country to remove the adage "JUSTICE DELAYED IS JUSTICE DENIED" from Islamic Republic of Pakistan's judicial system. Early and meaningful speedy, disposal of pending appeals by CIR(A) will not only bring relief to the taxpayers, it may also stop unnecessary deferment of revenue. In this way CIR(A) may protect and safeguard the interest of both taxpayer as well as of revenue. Delay in dispensation of complete and meaningful justice dispensed with and at times makes it worthless. Facts and conduct of refusing to grant stay order by CIR(A) shows deliberately contribute to the delay after the amendment in Finance Act, 2005 and Finance Act, 2012. Either he should allow stay or pass order on main appeal expeditiously.
33. Therefore, we hold that the order of the CIR(A) rejecting the stay application is not sustainable in the eyes of law and refusal of stay order by the CIR(A) is vacated and stay application re- instated/ restored at its original number being pending adjudication before CIR(A). The matter is remanded back to the CIR(A) for de-novo proceeding/ hearing to pass speaking judicious order after application of judicial, judicious and conscious mind and after hearing the taxpayer and after obtaining rebuttal of the taxpayer within 07 (Seven) days of the receipt of this order.
Meanwhile directions are being given to the department not to initiate any coercive measure till disposal of stay application. Main appeal ought to be expeditiously decided at the soonest preferably within 30 days from receipt of this order.
34. The settled principle regarding administration of justice are that CIR(A) dispensing justice and exercising judicial powers are supported to apply his mind to the cases and to determine respective stances taken by the taxpayer and after giving also opportunity to the department and further evaluating those to give his own verdict justified by reason, we are sorry that we are remarking with a great dismay that the impugned order refusing the stay can in no manner be placed in the arena of judicial order or even quasi-judicial order.
35. For the reasons discussed above. We with heavy heart remand back for de-novo decision because it cannot be given premium to lethargic first appellate authority who totally failed to fulfill in discharging of his bounden judicial duty. The Taxpayer is being vexed on the simple issue which the CIR (A) could decide it. Therefore, to avoid further such practice by the CIR(A) and for want of correct application of law, we remand back the Order dated 16.1.2015 to the CIR(A) to apply his own judicious and judicial mind and decide the application and also main appeal after providing reasonable opportunity to the Taxpayer within 30 days from the receipt of this Order. The stay application as already held deems to be pending for fresh adjudication before the CIR(A). The Appellant/taxpayer is at liberty and may take up all factual and legal grounds and all aspects of the issues of the case afresh/de novo.
36. In finale we may-add that the Taxpayer's chief aim is to decide and disposal of the main appeal and real disputed issues are still in doldrums and pending adjudication before CIR(A). The speedly dispensation of justice is for the purpose of development of public law. We may at this moment, borrow the golden words of Schwartz and H.W.R. Wade in their book on Legal Control of Government pointing out as under:-- "Restrictive rules about standing are in general inimical to a healthy system of administrative law.
If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest." (Underlying by us for emphasis), ' The CIR(A) being sub-ordinate authority he is bound to follow and obey the Judgment/Order of Tribunal (ATIR). It is not open to the CIR(A) to ignore decision of jurisdictional Tribunal or refuse to follow. It must scrupulously follow the said decision in letter and spirit. The language of the Statute clearly indicates that the power of the Tribunal is very wide amplitude. The ratio, deducible form the foregoing discussion is that these powers of Tribunal are of a wide sweep and the judgment of Tribunal is binding on sub-ordinate authority including CIR(A). In this respect we quote the text of CBR's letter C. No, 1(7) DT-14/92 dated February 10, 1991 whereby it has been directed as under:- "It has been brought to the notice of Board by the Learned ITAT through their order in I.T.A. No, 684/HQ of 1990-91 (Assessment Year 1989-90) that the directions contained in their appellate orders are not being followed by the authorities below.
' The following observations were also made previously by the learned Tribunal in I.T.A. No, 951/HQ of 1990-91 vide order dated August, 1991:-- "The order of this Tribunal is binding on the subordinate Income Tax authorities and, therefore, we deprecate the manner in which the Commissioner of Income Tax (Appeals) has sidetracked the order of this Tribunal, we disapprove such practice on the part of sub-ordinate income tax authorities and except that in further the orders passed by this Tribunal shall be properly respected and followed."
2. I am, therefore, directed to request to show proper respect to the orders of the Income Tax Appellate Tribunal as they are of binding nature on all subordinate Income Tax authorities and required under the law to be followed.
3. The above instructions may kindly be brought to the notice of all concerned."
' The learned Tribunal vide its judgment reported as 2010 PTD (Trib) 557 strongly deprecated the tendency of Ignoring or by-passing the direction of the superior authorities on the part of revenue:-- "We have in so many cases deprecated the tendency of ignoring or bypassing the directions of the superior authorities on the part of the Revenue Officers. This tendency needs to be cured for better administration of justice, observance of discipline and maintaining rule of consistency and law. The Taxation Officer in this case having scanty knowledge of the dispensation of justice and interpretation of statue has tried to demonstrate that he knows the law and the legal proceedings better than his superior officer and he may be right in thinking so but while acting as a judicial/Quasi-Judicial which have always been viewed very seriously and may entail into an appropriate action which however, we do not propose to take in this case."
' Further the ATIR (Tribunal) has ruled in 1996 PTD (Trib.) 1128 that its judgments are binding on the appellate authorities subordinate to the Tribunal under hierarchy of judiciary.
37. Corollary, it is opined that it is not the taxpayer's fault or default. The taxpayer is being penalized and punished for its obedience to law of the land. If for any reason or for any embargo or inbuilt limitation the CIR(A) refuses to grant further stay. While allowing or refusing stay CIR (A) should cite example of fault or default of taxpayer and be considered that it is common knowledge that a statue normally does not provide for each and every conceivable eventuality and in respect of some unforeseen events arising in a case for which it has made no provision and where there is no express embargo/restriction by the statute the courts would be deemed to have inherent jurisdiction in the interest of orderly dispensation of justice unless and until prohibited by the statutory provision of statute.
38. The learned CIR(A) blatantly refused the stay without assigning any cogent, valid and concrete reasons. Powers of the CIR (A) [first appellate authority] is larger than those under the Civil Procedure Code. The powers conferred upon the first appellate authority by the Income-Tax Ordinance/Sales Tax Act, are much wider than the powers of an ordinary court of appeal. It would be wholly erroneous to compare the powers of the first appellate authority with the powers possessed by a court of appeal under the Code of Civil Procedure. The first appellate authority is not an ordinary court of appeal. It is impossible to talk of a court of appeal when only one party to the original decision is entitled to appeal and not the other party, and in view of this peculiar position the statute has conferred very wide powers upon the first appellate authority once an appeal is preferred to CIR(A) by the taxpayer. The first appellate authority has plenary powers in disposing of an appeal. The scope of his powers is conterminous with that of the TO/OIR/CIR. He can do what the OIR/TO could do and can also direct the latter to do what the latter failed to do.
In fact, an appeal is merely the continuation of the original proceedings and unless some fetters are placed upon the powers of the appellate authority by express words, CIR(A) exercises the same powers as does the original. First appellate authority is vested with all the plenary powers which the OIR has in the matter. The entire assessment is thrown open. The first appellate authority need not confine itself only to the materials on record at the time of assessment. It may make such enquiries as it thinks fit. The first appellate authority has all the powers which the original authority may have. In the absence of any statutory provision to the contrary, the appellate authority is vested with all the plenary powers which the subordinate authority has in the matter. Non-exercise of a power by the Taxation Officer/Officer Inland Revenue may be corrected by the first appellate authority. It is well known that an appellate authority has the jurisdiction as well as the duty to correct all errors in the proceedings under appeal and to issue, if necessary, appropriate directions to the authority against whose decision the appeal is preferred to dispose of the whole or any part of the matter afresh p unless forbidden from doing so by the statue.. Unless there is an exclusionary provision, [like section 131(5) 1st proviso discussed supra] power to grant stay has been expressly conferred and provided to first appellate authority will deemed to have been conferred on the appellate authorities. Where a stay application has been filed along with the appeal or separately before the first appellate authority, the High Court has directed that the enforcement of the assessment order to be kept in abeyance till such time orders are passed on the stay petition Mohammed Abdul Kader v. ITO, (2004) 187 CTR (Ker) 324,
325. The appellate authority is equally and as much obliged to judicially and judiciously exercise its discretion having regard to be prima facie case made out where the appellate authority would also be satisfied that the very object of the appeal would be rendered nugatory or frustrated, if interim orders of stay as prayed for were not granted. By now the principles which should govern the grant of interim orders in the matter of stay of collection of taxes or revenue due to the State have become well-settled by many pronouncements of the Superior Courts. There is no justification or basis to assume that the appellate authorities would throw to winds those well- settled principles in disposing of the application for stay. Where an application for stay of disputed demand is made before the appellate authority, it is the duty of the appellate authority to record elaborate reasons for refusing stay by speaking order. Such reasons must show application of mind to questions of prima facie case, balance of convenience or irreparable loss and undue hardship. Merits of the appeal need not be gone into at that stage.
39. In the event of refusal by the CIR (A), the taxpayer will be at liberty to avail the constitutional remedy by filing Constitutional Petition before the Hon'ble High Court of Lahore or may knock the door of any appropriate court/forum. It is therefore, directed to the CIR(A) either to grant the stay or decide the main appeal at the soonest possible time and pass judicious speaking order after application of conscious mind, dispose off the appeal and issue the appellate order within (30) thirty days from the receipt of this order or stay the recovery coercive measures. The taxpayer's pending stay Application for grant of stay before CIR(A) the same to be disposed of within seven days from the receipt of this order. However, the applicant/appellant would not seek any adjournment against stay Application/appeal hearing and the appeal may be decided strictly on merits in accordance with the provisions of law after providing reasonable opportunity of being heard to the applicant/ appellant.
40. In view of the above discussion we hereby vacate the order of the learned CIR(A) and stay application filed before him by the Taxpayer would be deemed to have been pending before him.
' Last but not the least, with profound respect we would quote: Sir Sidney Smith, English Esayist [Peter Ply Mley's letter] who observed in the year 1807: "WHEN I HEAR ANY MAN TALK OF AN UN-ALTERABLE LAW, THE ONLY EFFECT IT UPON ME PRODUCES IS TO CONVINCE ME THAT HE IS. AN UNALTERABLE FOOL:"
41. Both the Miscellaneous Application as well as Main Appeal stand disposed of accordingly.
' Sd/- ' MUHAMMAD ASIF ' ACCOUNTANT MEMBER (MUHAMMAD JAWED ZAKARIA)
' JUDICIAL MEMBER AS PER LEARNED ACCOUNTANT MEMBER, MR. MUHAMMAD ASIF: I have gone through the order drafted by my learned brother, Judicial Member, and I am in agreement with most of his observations. However, there is another aspect. What is the legal status of the impugned order? I mean, has this order any sanction in law? Why do I raise this question would be clear from the reading of provision contained in section 45B(1A) that is as under:-- "45B(1A). Where in a particular case, the Commissioner (A) is of the opinion that the recovery of tax levied under this Act, shall cause undue hardship to the taxpayer, he, after affording opportunity of being heard to the Commissioner or Officer of Inland Revenue against whose order appeal has been made, may, stay the recovery of such tax for a period not exceeding thirty days in aggregate."
' Perusal of this provision shows:--
(i) That the Commissioner (A) has to form an opinion on the basis of application made to him that the recovery will cause undue hardship to the taxpayer, he may stay the recovery of tax.
(ii) But before that he will have to hear the Commissioner/Officer of Inland Revenue (OIR).
(iii) If he is convinced by the Commissioner/OIR that no undue hardship would be caused to the taxpayer he may change his opinion and decline to stay the recovery. (emphasis supplied)
' Interestingly this provision does not envisage that the taxpayer should be given hearing opportunity if the Commissioner(A) is not inclined to stay the recovery. However, since the principle of hearing opportunity is embedded in every statute, in my opinion, he will hear the taxpayer and if he is satisfied that no undue hardship would.Be caused to the taxpayer he may simply file the application under intimation to the taxpayer. Owing to this observation, therefore, if the Commissioner (A) passes an order of refusal it would have no sanction in law. Nonetheless, if he does so and if the taxpayer files an appeal against the order of refusal then he is not entitled to any relief for the reasons mentioned supra. To wit; the law does not require that in such like cases the Commissioner (A) has to pass an order. Therefore, I am of the firm opinion that the impugned order has no sanction in the law and is nonexistent and therefore has to be vacated. Since, it is held that it in a non-existent order, the question of issuing any direction to the Commissioner (A) is irrelevant.
' To repeal, I agree with the finding of the learned Judicial Member as recorded in para 33 that the order of CIR(A) rejecting the stay application is not sustainable in the eyes of law but for the reasons recorded by me above. As regards second part of his observation that stay application is reinstated / restored been pending adjudication before CIR(A), I, with due deference, tend to disagree for the same reasons because the Tribunal can declare the impugned order as non- existent in the eyes of law and can do no more. It would be, therefore, appropriate to frame the question as under for decision by a referee member as under:--
(i) Whether the order of refusal of stay passed by the CIR(A) is a valid order under the law?
(ii) If it is not a valid order, can this Tribunal issue the direction to him to re-decide the stay matter?
Sd/- (MUHAMMAD JAWED ZAKARIA) Judicial Member Sd/- (MUHAMMAD ASIF) Accountant Member ' Khubaib Ahmad for Appellant.
' Attiq ur Rehman Mughal, D.R. For Respondent.
' Date of hearing: 10th April, 2015.
' Date of Order: 5th May, 2015.
' MUHAMMAD WASEEM CHAUDHARY, JUDICIAL MEMBER.---
45. The matter has been entrusted to me by the Honourable Chairman for resolving the difference of opinion by my two learned brothers which has arisen while deciding the above titled application and, appeal. I have read carefully the observations of my learned. Brother J.M which he has made about the assessment process and the nature of proceedings before the first appellate authority and role of this Tribunal with reference to the orders passed by that authority specially with reference to the powers of grant of stay against recovery of tax demand. While the learned A.M agreed to the findings of the learned J.M to a large extent but he raised issues relating to the manner CIR(Appeals) shall dispose of an application for stay of tax demand filed by a taxpayer. Consequently the following two questions have been referred to me for my opinion:-- i) Whether the order of refusal of stay passed by the CIR (Appeals) is a valid order under the law? ii) If it is not a valid order, can this Tribunal issue the direction to him to re-decide the stay matter?
46. To answer the first question at the cost of repetition, the provision empowering the CIR (Appeals) to decide the application for stay is reproduced below:-- ' Section 45 (1A)
"Where in a particular case, the Commissioner (Appeals) is of the opinion that recovery of tax levied under this act, shall cause undue hardship to the taxpayer, he, after affording opportunity of being heard to the commissioner or officer of Inland revenue against whose orders appeal has been made, may stay the recovery of such tax for a period not exceeding thirty days in aggregate. "
' With respect I do not subscribe to the viewpoint of the learned brother A.M in para 42 supra that in case "he [CIR (A)] is satisfied that no undue hardship would be caused to the taxpayer he may simply file the application under intimation to the taxpayer. Owing to this observation, therefore, if the Commissioner (A) passes an Order of refusal it would have no sanction in law." My reason of differing is based upon section 24A of the General Clauses Act reproduced below:-- "24A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
47. To issue directions for stay of the recovery of tax or to allow the recovery by rejecting application for stay are to reasoned, and should be fair and just for the advancement of the purposes of the enactment. Such directions/orders are to be reasoned and copy of the order is to be provided to the concerned parties. So in my humble view, the CIR(A) has to pass a speaking order in the both situations, whether application for stay is to be accepted or rejected. Therefore, with reference to question (i) , I am of the opinion as a matter of principle , CIR(A) has to pass an order even if an application is to be rejected. The. Rejection of course has to be based on reasons tenable under the law and on the facts of the case. If the order of rejection of stay application is devoid of reasons or has been passed in disregard of the circumstances from which hardship to the taxpayer is evident, such order would be liable to further challenge before this Tribunal under section 46(1)(A) discussed in the preceding paragraphs.
48. To give opinion on question (ii), one has to keep in mind section 46(2) of the Sales Tax Act, 1990 which stipulates that in deciding appeals by this Tribunal, procedure laid down in section 132 of the Income Tax Ordinance, 2001 is to be followed, subsection (3) of which reads as under:-- "(3) Where the appeal relates to an assessment order, the Appellate Tribunal may, without prejudice to the powers specified in subsection (2) make an order to--
(a) affirm, modify or annul the assessment order; or
(c) remand the case to the Commissioner or the Commissioner (Appeals) for making such enquiry or taking such action as the Tribunal may direct."
49. As evident from above provision, the Appellate Tribunal has the power, inter alia, to remand the case to the Commissioner or the Commissioner (Appeals) for taking such action as the Tribunal may direct. Hence, in the context of rejection order passed on the application for stay of tax demand, this Tribunal can remand the case to the Commissioner (Appeals) with the specific directions like passing an order within a specified limit of time and direct the Commissioner or the Commissioner (Appeals) to the effect that no recovery may be taken against the taxpayer appellant till the disposal of the appeal. Recently, case of Honda Point (Pvt.) Ltd. M.A. (Stay)
No,708/LB of 2015 came before this Tribunal. In the case, the learned CIR (A) had rejected the application for stay of the tax demand. The appellant filed appeal before the order of the learned CIR(A) which was disposed of by my same learned brother A.M. And me on 22-4-2014 as follows:-- "Keeping in view the above, the Department is advised not to pursue the recovery, in any manner, in this case till decision of the main appeal by the Commissioner (Appeals) in view of the directions issued by the superior courts, as referred above, that recovery should not be made till disposal of appeal by an independent forum. The Departmental Authorities are also directed to de-attach the bank accounts till the decision by the learned CIR (Appeals). The learned CIR (A) is also directed to decide the appeal of the taxpayer within a period of three weeks. Order accordingly."
50. Since the facts of the instant case are similar, it also deserves the same relief in view of the law dismissed above and the much valued Article 25 of the Constitution of the Islamic Republic of Pakistan which strictly prohibits discrimination. Therefore, I agree with the learned brother J.M. To the effect that appropriate directions can be given to the learned CIR (A) against the impugned order of rejection of application for stay of tax demand. This opinion is limited to the extent of question framed. In the circumstances of the case, I would have preferred the same directions which have been given in the case of Honda Point referred to supra.
51. The application is allowed as well as the appeal filed by the registered person is disposed of as above.