1. ' MUHAMMAD JAWED ZAKARIA, JUDICIAL MEMBER.---In the instant case the appeal against refusal of stay by the learned CIR(A-III), Karachi vide his order No,CIR (A-III)2013-14/590 dated 27.2.2013 on the ground that the taxpayer has already availed 30 days, therefore, as per section 128 (1A) of the Income Tax Ordinance, 2001 further stay cannot be granted.
2. 2.Further the applicant has also filed miscellaneous application for stay of demand before this Tribunal praying for grant of stay.
3. 3.The learned counsel argued that on the facts and circumstances of the case, the Hon'ble Tribunal would appreciate that the impugned order of the learned CIR (A) needs to be recalled as the payment of demand would cause undue and severe hardship to the appellant. The appellant submits that the Hon'ble Tribunal may graciously grant the stay of demand and issue directions to the concerned tax authorities to dispose of the appeal. It was further submitted that it is good prima facie case for grant of stay till the main issues is decided by the learned CIR(A). The counsel further argued that as per authorative pronouncement till the matter is decided by the Hon'ble Tribunal, being the first extra departmental forum, an assessee is entitled to interim relief and till such decision no coercive means of recovery can be enforced.
4. 4.The learned DR on the other hand strongly objected to the stay application. He further submitted that balance of convenience is not in favour of the taxpayer and even otherwise the learned CIR(A) had duly granted stay for 30 days and statutory time period of 30 days as provided under section 128(1A) of the Income Tax Ordinance, 2001 has been elapsed and the taxpayer is not entitled for any further extension till the time appeal pending before the CIR (A).
5. 5.We have heard the learned representatives from both the sides and carefully perused the relevant record.
6. 6.That since the institution of the main Appeal before the CIR (A), the Appellant has made strenuous efforts to ensure the speedy and efficacious disposal of the same. In this regard, the taxpayer has attended the office of CIR (A) and conducted several hearings and on 20.1.2014 however, no order was passed as the CIR (A) was transferred. The successor CIR (A) re-fixed the appeal on 19.2.2014 and the appellant's counsel once again submitted written arguments and finally once again argued .before the incumbent CIR(A) but the hearing was treated partly heard and adjourned for departmental comments. Again on adjourned date i,e, 26.2.2014 the taxpayer attended but the same was adjourned for want of comments, and on each such hearing the Appellant has presented detailed arguments in support of the main Appeal. The Appellant has been regularly enquiring from the office of the CIR(A) as to the outcome of the Appeal due to non- cooperative and lethargic attitude of the IR Officers DCIR/Concerned Assessing Officer and due to slackness of Department the taxpayer is facing hardship and the appeal could not be concluded on the pretext that the department has not yet filed the comments. This practice should be curbed with iron hands and if IR Officers are not taking interest in discharging their duties they must be called by high ups of the FBR including FBR Member (Legal). The taxpayer cannot be penalised or punished due to negligent act of the department. There should be no hurdle in fostering the justice. 7.In the circumstances, the appellant is severely aggrieved by the incessant delays on the part of Revenue authorities as well as the likelihood of coercive action upon the imminent expiry of the stay order granted by the CIR(A) vide orders mentioned supra which has already been explained. It is observed by us that where the appeal is lying pending adjudication or reserved for orders 'and not disposed off for any reason amounts to a denial of justice and is violative of the Appellant's substantive, legal /vested and constitutional rights.
7. 8.Law is legislated by the legislature with valid authority Law is not always framed by the court but courts interpret for advancement of justice, therefore, it should not be allowed to operate so as to defeat the ends of justice, since it is in the interest of justice to avoid miscarriage of justice. The courts and quasi-judicial officers including CIR(A) are required not only to do meaningful speedy justice but also must perform their duties in such a manner that justice is seen to have been done.
8. CIR(A) while discharging their judicial duties no steps should be taken which may create apprehension in the mind of a appellant /taxpayer that justice may not be done. 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 section clearly indicates that the powers of the Tribunal under this section have very wide amplitude and are almost to the power of Civil Court under Order XLI, Rule 33, C.P.C. C The ratio, deducible form the foregoing discretion is that the power of Appellate Income Tax Tribunal under section 135 of the Ordinance are almost analogous to the powers of Civil Courts under Order XLI, Rule 33, C.P.C. These powers are of a wide sweep.
9. 9.We have further found that our directions contained in the Order M.A. (Stay) No, 285/KB/2013 dated 6.1.2014 have not been followed and disgracefully ignored by the 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 ITA 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 ITA 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 side-tracked 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. "
10. 2.1 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."
11. 3.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 <i>"We have in so many cases deprecated the tendency of ignoring or by-passing 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." </i> 10.Further the ATIR (Tribunal) has ruled in 1996 PTD (Trib.) 388 that its judgments are binding on the appellate authorities subordinate to the Tribunal under hierarchy of judiciary.
12. 11.Despite of consistent directions issued by the Superior authorities time and again in respect of implementation of judgment of the Tribunal no concrete steps have been initiated by the high ups of the revenue authorities more particularly in this case wherein vide order bearing M.A. (Stay)
13. No,285/KB-2013 dated 6.1.2014 has given the following specific directions: Considering the fact that the department is initiating proceedings against the taxpayer, therefore, we direct the taxpayer to file fresh application of stay before the CIR(A) and <u>the CIR(A) is also directed to consider the application judiciously in accordance with the provision of law. It is also directed to the CIR(A) to take up the main appeal within a week and to decide and dispose of the appeal and issue the appellate order within (30) thirty days </u>from the receipt of this order."
12. The directions contained in the above mentioned order of the Tribunal were, however, completely ignored and by-passed. The main appeal has not yet been disposed of by the CIR(A) even after passing of 60 days of the Order by this Tribunal. This has aggravated the miseries of the genuine taxpayer and the taxpayer will depose mistrust on the revenue. The CIR(A) while rejecting the application has observed that statutory time period of 30 (thirty) days has elapsed. However, we may observe that it is not fault of the taxpayer, the taxpayer as enumerated above attended the CIR(A) on various occasions and argued the case at length for quick disposal of the case but was adjourned by him on the pretext that comments from the department are awaited. Therefore, it is not the taxpayer's fault, for getting the time of stay exhausted. The taxpayer company has not committed any sin or crime. There is no fault or default on the part of the taxpayer. The taxpayer is being penalized and punished for its obedience to law of the land. The taxpayer ought to file M.A.
14. Stay Application once again before the CIR(A) just immediately on receipt of this order if for any reason or for any embargo or inbuilt limitation the CIR(A) refuse 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, the courts would be deemed to have inherent jurisdiction in the interest of orderly dispensation of justice.
15. 13.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 Sindh or may knock the door of any appropriate court/forum.
14. Lastly, we direct the CIR (A) to pass speaking, judicial and judicious decision on main appeal within 6 (six) working days from receipt of this order and the same to be disposed of and served on Assessing Officer and taxpayer within same period.
16. 15.
15. The order on urgent application to be passed on the same day from the receipt of Miscellaneous Application for stay. The Copying Section of this Tribunal is directed to send the copy of this order to the Member (legal Division) FBR, Islamabad, Member (Admin) Islamabad and the concerned Chief Commissioner Inland Revenue, LTU, Karachi.
16. Both the appeal as well as Miscellaneous Application for stay stand disposed of as above.