Through these miscellaneous applications the taxpayer sought recall of our earlier order dated 04.01.2018 bearing I.T.As. Nos.1304 and 1226/LB/2012 (Tax years 2005 and 2009) wherein the departmental appeals were accepted and the order of the learned CIR(A) was reversed except on the issue of WWF . The grievance of the taxpayer is reflected in following grounds:-
1. That the aforementioned departmental appeal was disposed of vide order dated 04.01.2018 while appellate order has been issued on 09.01.2018 but served on 24.01.2018, wherein departmental appeal has been accepted.
On inspection of record it transpires that disposal of order is based on some vital omitted arguments on the part of Respondent's taxpayer , which goes to the roots of the case. The same is contrary to the directions of the superior appellate authorities which are binding on this Hon'ble Appellate Tribunal (IR).
2. That without prejudice to legal and factual infirmities in the appellate order , hearing in this case was concluded on 29.09.2017, the said order passed by this Tribunal dated 04.01.2018 issued on 09.01.2018 is contrary to the norms of justice being issued/served after more than 1 17 days from the date of hearing.
3. That judgment delivered after many months of hearing/ arguments, tantamount to delivering judgment without hearing parties. It is settled law that no valid judgment can be given without hearing the parties. A judgment delivered after many months from the date of hearing is no judgment in the eyes of law. Reliance is placed on the following judgments of binding nature by the Apex Court of Pakistan.
PLD 2012 Supreme Court 923 Present: lftikhar Muhammad Chaudhry , CJ, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Jawwad S. Khawaja and Khilji Arif Hussain, JJ ----Arts. 9 & 25----Right of access of justice---Scope--Right of access to justice included the right to be treated according to law , the right to have a fair and proper trial and a right to have an impartial court or Tribunal.
2015 SCMR 1550 Supreme Court of Pakistan Present: Mian Saqib Nisar , Gulzar Ahmad and Maqbool Baqar , JJ In my view, the expression "not exceeding thirty days" makes it mandatory for the trial Court to render its judgment within the prescribed time period: If the same is not done, without a sufficient cause i.e. a cause beyond the control of the Judge, the judgment is impaired in value if not invalid and disciplinary action can be taken against a judge who is found habitual in delaying his judgments beyond this period, obviously following proper legal steps for such action and in any case at least this vice of the judge must adversely reflect in his ACRs.
As the first appeals against decrees and mostly the constitutional cases and ICAs are heard by a Division Bench(s) of the High Courts, so as to enable the two judges to deliberate, confabulate and compose the judgment(s), of record dissent and/or exchange draft judgments, the reasonable time for the pronouncement of judgments should be 90 days.
Thus for proper enunciation of law, considerable research, brooding and pondering may be required. 90 days time in view of said Article should, therefore, also be good and adequate for the composition of the judgments by the High Court(s) in the above matters and also in first appeal against order or second appeals, and in the cases before it in its revisional or review jurisdiction, or any of the special jurisdictions of the High Court(s).
If the judges cannot compose and deliver the judgments within the above (reasonable) time, then they for sufficient reasons, to be recorded (by them) should set out the case for re-hearing. Howeve r, because of the high status of the judges of the High Courts, if is not expected that Vie learned Judges shall fix the matters for rehearing in routine just to cover up the lapse in composing the judgment within 90 days...
4. That even otherwise the decision of this Tribunal to confirm the arbitrary treatme nt of the department merely on the basis of assumed facts is apparently a mistake of fact and law, being based on overlooked facts and skipped judgments of binding nature, hence, rectifiable as per verdicts of Hon'ble Higher/ Supreme Judiciary .
2. Brief facts, relevant to the disposal of present applications, are that the departmental appeals were-accepted by the Tribunal vide order dated 04.01.2018 The grievance of the taxpayer is that while disposing of the appeal the Tribunal ignored the arguments of the learned counsel of the taxpayer . He has further argued that the departmental appeals were heard on 29.09.2017 and the order of the Tribunal was passed on 04.01.2018 and served on 24.01.2018 after 117 days from the date of hearing. In this context he has relied upon the judgments of the apex court of the country wherein their lordships has been held that the reasonable time for the pronouncement of judgments should be 90 days. To conclude his arguments he has prayed that the order of the Tribunal should be recalled for the norms of justice. On the other hand, the learned DR has contended that the Tribunal has no power , to review his order until and unless a mistake is floating on the surface of record and has prayed for dismissal of the taxpayer's miscellaneous applications.
3. We have heard the rival arguments of both the parties and perused the relevan t record available before us. We have observed that the contentions of the A.R. are correct as it is evident from record that the appeals of the department was heard on 29.09 2017 and the order was passed on 04.01.2018 issued on 09.01.2018 and served on 24.01.2018 after more than 117 days from the date of hearing which is against the norms of justice. The apex court of the land i.e. Supreme Court of Pakistan in a judgment reported as 2015 SCMR 1550 in the Messrs MFMY Industries Ltd and others has held as under:- "I shall now turn to the hearing of the first and/or second appeals by the High Court(s), and the hearing of the cases before it in its revisional and constitutional jurisdiction. As the first appeals against decrees and mostly the constitutional cases and ICAs are heard by a Division Bench(s) of the High Courts , so as to enable the two judges to deliberate, confabulate and compose the judgment(s), or record dissent and/or exchange draft judgments, the reasonable time for the pronouncement of judgments should be 90 days. This time period (90 days) shall also be reasonable time for the High Courts, for the reason that Article 201 of the Consti tution of the Islamic Republic of Pakistan, 1973 mandates "Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it". Thus for proper enunciation of law, considerable research brooding and pondering may be required. 90 days time in view of said Article should, therefore, also be good and adequate for the composition of the judgments by the High Court(s) in the above matters and also in first appeal against order or second appe als, and in the cases before it in its revisional or review jurisdiction, or any of the special jurisdictions of High Court(s) (note:- subject to the principle if the law has fixed a time for the conclusi on of the proceedings and pronouncemen t of judgment under and special law, this has to take precedence over the 90 days).
If the Judges cannot compose and deliver the judgments within the above (reasonable) time. then they for sufficient reasons, to be recorded (by them) should set out the case for re-hearing. Howeve r, because of the high status of the Judges of the High Courts, it is not expected that the learned Judges shall fix the matters for rehearing in routine just to cover up the laps on composing the judgment within 90 days, rathe r I am sure that it shall definitely be for genuine reasons, reflected in the order of rehearing as to why the judgment could not be written and pronounced..............
10. Be that as it may, in quite a number of cases where judgments have been withheld by the Courts (by any Court) for a considerable period of time, it has been frowned and disapproved, for example in the case reported as Muhammad Ovals and another v. Federation of Pakistan through Ministry of Works and Housing Pakistan, Islamabad and others (2007 SCMR 1587 ).
4. Following the direction of the Hon'ble Supreme Court of Pakistan we accept the miscellaneous applications and recall our earlier order dated 04.01.2018 and direct the office to fix the appeals of the department in its original Number as per roster arrangement.
6(sic). The Applications are allowed.