JAHANZAIB WAHLAH, MEMBER JUDICIAL-III .---- Through this order , I intend to dispose off Appeal No.K- 96/2019 directed against Order-in-Appeal No.1708/2018 dated 19.12.2018 passed by Collector of Customs (Appeals), by maintaining the assessment order dated 27.06.2018 passed by Depu ty Collector , Group-VII, MCC of Appraisement-East, Karachi.
2. Briefly facts of the lis are appellant during the course of his business activities imported a consignment of 4500 pcs weighing to 17822 kgs of Crank Shaft from China. Upon receipt of shipping documents he delivered those to his clearing agent Messrs Khurram Brothers, Karachi for transmitting Goods Declaration (GD) under the provision of Section 79(1) of the Customs Act, 1969 (Act) and Rule 433 of Sub-Chapter III of Chapter XXI of Customs Rules, 2001 (Rules) with the MCC of Appraisement-East, which he did and as per pre-requisite deposited upfront duty and taxes of Rs.2,578,910/-, consequent to which GD was numbered as KAPE-HC -52283 dated 18.09.2017. The consignment was selected for examination under the provision of Section 198 and Rule 435 of the Act/Rules, wherein, declaration was confirmed to the extent of all aspects and report so prepared was uploaded in the reservoir of GD, upon receipt of the same on his workstation the Assessing Officer opted to pass assessment order under the provision of section 80 and Rule 438 for levy of duty and taxes with the application of Valuation Ruling No.967/2016, dated 16-11-2016 (VR), against which appellant filed revision application under section 25D of the Act before Director General, Directorate General of Valuation (DGV) for declaration of the same as ab-initio void as the same was issued in derogation of the provision of Section 25 ibid. Resultant, his goods were to be assessed provisionally as contemplated in Section 81 of the Act, in compliance of the orders of the High Court of Sindh reported judgments as 2018 PTD 1746 and 2016 PTD 702 and of the Supreme Court of Pakistan dated 04.08.2016 upon payment of additional amount of duty and taxes of Rs.2153/- and imposed penalty of Rs.5000/- for non- availability of invoice as per the contemplation of Rule 389 of the Rules and submission of security for the differential amount of duty and taxes of Rs.16,45,500/- with the Collector of Customs, MCC of Appraisement-East.
Hence, his GD was assessed provisionally on 25.09.2017 by respondent No.1, while adducing remarks in the assessment note reading as "assessed provisionally party have a review application against Valuation Ruling No. 967/2016". Irrespective of the fact that the revision application is pending the DGV to date, without any action, the respondent No.1 finalized the value and passed assessment order dated 27.06.20 18 under Sections 80, 81(5) and Rules 438 and 440(b) of the Act/Rules while adducing remarks in assessment note reading as "Valuation Remarks: The Directorate General Valuation, has issued the valuation Ruling No.1286/2018 dated 17.04.2018 for Replacement Auto Parts. This case of provisional assessment is, therefore, forwarded to the Clearance Collectorate for finalization in the light of above mentioned VR, in accordance with the Law" The appellant challenged the vires of the order before respondent No.2, who remanded the case to respondent No.1 through order adduced in para 7 reading as "In view of the above, the instant assessment order is set aside and case is remanded back to the respondent to assessed the goods either under Valuation Ruling No.967/2016 or any order- in-review , if issued thereon", on the strength of observation made in paras 3 to 6 that: "3. I have examined the case record. The appellant imported a consignment of auto parts from China which were assessed under Valuation Ruling No. 957/2016 dated 16.11.2016. On request of the appellant's that they have filed the review before DG Valuation, Karachi against the applicable Valuation Ruling the goods were provisionally assessed under section 81 of the Customs Act, 1969. The said provisional determination was then finalized with the following remarks: "Valuation Remarks: The Directorate General Valuation, has issued the valuation Ruling No.1286/2018 dated 17.04.2018 for Replacement Auto Parts. This case of provisional assessment is, therefore, forwarded to the Clearance Collectorate for finalization in the light of above mentioned VR, in accordance with the Law"
The learned consultant of the appellant has raised following two main grounds of appeal: Valuation Ruling No.1286/2018 dated 17.04.2018 cannot be applied retrospectively to the goods imported in September 2017; The period assessment has been finaliz ed beyond the statutory period a stipulated in section 81(2) of the Act, hence, barred by limitation."
Perusal of record and assessment note to the impugned Goods Declaration shows that the goods were initially assessed under Valuation Ruling 967/2016 then assessed provisionally due to pendency of review petition of the said Valuation Ruling, and finally asses sed by application of Valuation Ruling 1286/2018. Further perusal of Valuation Ruling No. 1286/2018 shows that the same was a new Valuation Ruling which superceded Valuation Ruling No.1193/2017 and the later had never been applied on the impugned goods. Thus it is held that Valuation Ruling 286/2018 is not applicable in any way, prospectively or retrospectively , to the impugned consignment. The departmental representative placed on record that an order-in-review was issued for Valuation Ruling No.967/2016 but that was restricted to only few items and the application of the appellant for his goods, was not considered in the order-in-review . It was also placed on record that order-in-review so issued was set aside by the Appellate Tribunal Customs, Karachi. For the above, it is concluded that the impugned goods should either have been assessed under Valuation Ruling 967/2016 or any order-in-review issued against the said valuation ruling. No Order-in-Review has been placed on record against Valuation Ruling 967/2016 which means that the same is still valid for the impugned goods as per subs ection (4) of section 25-A of the Customs Act, 1969, which is reproduced below: "The custom value determined under subsection (1) or, as the case may be, under subsection (3) shall be applicable until and unless revised or rescinded by the competent authority"
4. The second ground of appeal pertains to limitation under section 81 of the Act ibid. The purpose of a provisional determination under section 81 of the Act, as provided in section itself is as under: "Section 81(1) Where it is not possible for an officer of Customs, during the checking of the Goods Declaration to satisfy himself of the correctness of the assessment of the goods made under section 79, for reason that the goods require chemical or other tax or a further inquiry , an officer , not below the rank of Assistant Collector of Customs, may order that the duty , taxes and another charges payable on such goods be determined provisionally ."
The provisional determination as per abov e legal position is made where it is not possible for an officer of customs to satisfy himself as to the correctness of any assessment for reason mentioned therein. It means that an assessment officer, in the presence of Valuation Ruling under Section 25-A does not requires any further inquiry with regards to value of the goods. As per subsection (2) of Section 25-A of the Act, "The customs value determined under subsection (1) shall be the applicable customs value for assessment of the relevant imported or exported goods." In the instant case, the assessment was originally made under the said VR, but it was only on the strength of certain orders of Superior Court that provisional assessment was allowed- and that too, on the request of the appellant's in the absence of any other appellant in the Customs Act, section 81 is resorted for all type of provisional assessment, specifically those made on. Court orders etc.
5. From the above, it is clear that provisional assessment under section 81 of the Act was not made for any of the reason mentioned therein. Instead it was made to facilitate the appellant, who then failed to persue his case or revision petition under section 25-D of the Act ibid. had the respondent department not acceded to his request for provisional assessment, the goods have been subjected to Valuation Ruling even at the time of assessment.
Therefore, his stance that the declared value stands final after expiry of time stipulated under section 80(1) (2) is not tainable.
6. Notwithstanding, as per second proviso of subsection (2) of Section 81, which read as "Provided father that any period during which the proceeding are adjourned on account of a stay order or for want of clarification from the Board or the time taken through adjournment by the importer , shall be excluded for the computation of aforesaid period". As discussed earlier the importer had himself requested to assess the goods provisionally pending final decision of DG (Valuation). Since importer's request was acceded to, therefore it should be deems to be adjournment by importer and time taken on these proceeding should be excluded from the computation of the period required in finalization under section 81(2) of the Act.
3. The appellant filed the appeal on the basis of grounds enumerated therein, the consultant/advocates on the date of hearing argued the case strictly in accordance with those. No cross objection under subsection (4) of Section 194A of the Act has been filed within the stipulated period of 30 days or not even to date by the respondent No. 1.
However , the representative of the respo ndent No.1 vehemently defended the passed reassessment order and appeal by respondents and prayed for maintenance of those, irrespective of apparent deficiencies/illegality .
4. Heard and case record perused, this case can be decided on the point of power/jurisdiction i.e. as to whether respondent No.2 was empowered to pass a remand order in derogation of the contemplation of section 193A(3) of the Act, which read as " the Collector (Appeals) may for reason to be recorded in writing extend, confirm, modify or annul the decision or order appeal against." The expression conform without any ambiguity that respondent No.2 is not empowered to pass a remand order against which an. appeal before him has been filed. Hence, under no circumstances he is empowered to pass an order of remand. By passing a reman d order he acted without lawful authority/jurisdiction and in- derogation of the dictum laid down by the Superior Judicial Fora that a thing has to be done as it has been asked to be done or not to be done at all as held in reported judgment. It is well settled law that when a law required and act to be done in a particular manner it had to be done in that manner alone, not otherwise. Reference in this regard can be made to Muhammad Hussain and another v. Muhammad Shaft and another (2004 SCMR 1947 ), Munawar Hussain and 2 others v. Sultan Ahmed (2005 SCMR 1388 ), and in 2006 SCMR 137 titled as DG1&I and others v. Al-Faiz Industries (Pvt.) Ltd. and others that "If the law have prescribed method for doing a thing in a particular manner such provision of law is to be followed in letter and spirit and achieving or retaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted--- each and every words appearing in a Section is to be given effect and no other word is to be rendered as redundant or surplus - when the legislature required the doing of a thing in a particular manner then it is to be done in that manner and all other manner or modes of doing or performin g that things are barred -- if the doing of a thing is made lawful in a particular manner the doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expression facit cessare taciturn". Hence, respondent No.2 acted withou t power/jurisdiction and renders the order so passed as ab-initio, null and void and as such coram non judice.
5. As regards to observation by respondent No.2, in para 4 of the order that assessment of the appellant goods anyway for levy of duty and taxes ought to be made with the application of VR in the light of expression of Section 81(4) of the Act is also based on misconception being in derogation of law laid down by the Hon'ble High Court of Sindh in reported judgment 2018 PTD 1746 Sadia Jabbar v. FOP and others and 2016 PTD 702 Danish Jehangir v. Federation of Pakistan through Secretary/Chairman and 2 othe rs, wherein, consignment of an importer , who has challenged the vires of VR before the DGV under the provision of Section 25D of the Act is ordered to be assessed provisionally under section 81 ibid. In the present case appellant challenged the vires of VR No..967/2016 dated 16.11.2016 before the DGV, as soon as the revision application is filed, the VR became wide open and least remain in field for any purpose, application of that is no exception, as per theory of merger and cannot be applied under any pretext, unless it attains finality after crossing all the forums, where it can be challenged for decision as held by Hon'ble Supreme Court of Pakistan in reported judgments 1993 SCMR 39 CBR v. Chanda Motors and 2013 PTD 581 Ghulam Nabi v. FOP of the Honorable Supreme Court of Pakistan. Paras 17 to 22 are relevant and which are: "17. Word "finalized" is derived from the word "final" which is define in Chambers 20th Century Dictionary to mean "last decisive, conclusive: respecting the end or motive of a judgment ready for execution- last of series". "Finality" is defined as state of being final completeness or conclusiveness. In Black's Law Dictionary Fifth Edition, word "final" is defined as, "last; conclusive, decisive, definitive; terminated; and completed." In it's used in reference to legal actions this word is generally contrasted with "inter-locatory". Viewed in the light of meanings of the word "assessments" and "finalized", it appears that assessment order as such do not have touch of finality unless all the forum are exhausted in which such orders can be challenged so that the order take the final decision."
18. Legally speaking order of assessmen t passed by Income Tax Officer is an order of original authority but is not final for the reason that it can be challenged in appeal or revision as the case may be and would be final only when it goes through all the forums and the finding of the last forum shall be binding as conclusive.
19. The question whether appeals and other remedies provided under the law formed part of proceedings or not came up for consideration before the Supreme Court of India in the case of Garikapati Veeraya v. N. Subbiah Choudhry and others reported in PLD 1957 Supreme Court (India) 448 it is held as per majority opinion that legal pursuit of a remedy suit, appeal and 2nd appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. Reference can be made to the case of Commissioner of Wealth Tax v. Vimlab an Vadilal Mehta reported in (1984) 145 ITR 11, in which it is held that it is well settled that when an appeal is filed against assessment order before AAC the assessment is thrown open and Appellate proceeding constitute a continuation of a assessment proceeding."
20. In the case of F.A Than v. The Government of Pakistan (PLD 1964 Supreme Count 520), question came up for consideration that in the case of dismissal of a Government servant for filing a declaratory suit whether limitation would start from the date of order of dismissal to be reckoned under Article 120 of the Limitation Act or from the date of order of Appellate Authority confirming the first order to be reckoned under Article 58 of the Limitation Act. It is held that such right accrued on the date of dismissal but, where there is an appeal on the date of Appellate order upholding dismissal. It is further held that the legislature when its provided a hierarchy of the Tribunal for the determination of a dispute it is really providing one complete procedure for such determination, proceeding before different Tribunal being only step in this procedure.
21. On the question construction, in the light of what is stated above, it can be said without fear of contradiction that order passed in original proceedings is not final unless it crosses all the forums set up under that law in which it can be challenged and the order of the last forum would become final. Mr. Rehan Hassan Naqvi, learned counsel for the respondent has submitted before us that there is plethora of case law on the point that even within the frame work of Income Tax Law, appeals and other remedies provided therein formed part of the same proceedings regarding assessment. In this context our attention is drawn to the case of Chattur am and others v. Commissioner of Income Tax, Bihar reported in (1947) 15 ITR 302. In the reported case assesses of partially excluded areas were served with the notices under section 22(2) of the Income Tax Act for furnishing returns. Subsequently Governor of Bihar by notification directed that India Income Tax (Amendment) Act, 1939, the Income Tax Law Amendment Act, 1940 should be deemed to have been applied to the Chotanagpur Division containing partially excluded areas with retrospective effect. Subsequently Regula tion 1 of 1941 was also issued by the Governor to remove doubts as to the retrospective applicability of the Act mentioned in the Notification. Assesses were assessed and their appeals were pending when Regulation 1 of 1941 was issued. It was contended that assessment proceedings initiated and completed against them were invalid and neither the notification nor the Regulation were competent in law to validate those proceedings, it was held by the Federal Court of India, inter alia, that appeals to the Appellate Assistant Commissioner were an integral part of the machinery of assessment and therefore it could not be contended that assessment proceedings were over when Regulation 1 of 1941 was made and the Regulation could not apply to the proceedings covered by those appeals.
6. Since the value determined through VR of motorcycle parts was not applicable on the forthcoming including the present consignments of the appellant, it was mandated upon respondent No.1 to allow clearance of those under the provision of Section 81 ibid. simply upon submission of copy of revision application. To the contrary , respondent No.1 invariably refuses to allow clearance provisionally despite being competen t authority on the plea that the appellant has to seek permission either from Additional Collector or Collector , who are non existent authority in the provision of Section 81 of the Act. Astonishingly , a communication to the said effect has also been circulated by one of the Clearance Collectorate, despite having no warrant of law. Keeping in view the said unlawful exercise this Tribunal in reported judgment 2016 PTD (Trib.) 1305 Messrs AFU International v. The Director General Valuation and another ordered in unequivocal terms that "respondent No.2 to issue direction to the Collectors of the Clearance Collectorate to withdraw the issued verbal/written orders in derogation of the Provision of Section 81 of the Customs Act, 1969 and let the authority enunciated in subsection (1) to exercise his powers independently , fairly, justly and in accordance with its expression and the law laid down by the Superior Judicial Fora." Similarly , the Hon'ble High Court of Sindh in 2018 PTD 1746 Sadia Jabbar v. FOP and others ordered /held that "in our view, a valuation ruling must therefore ordina rily be regarded as valid for a period of ninety days from the date of issuance. Subsection (4) of section 25A, added, by the Finance Act, 2010, of course now provides that a valuation ruling "shall be applicable until and unless revised or rescinded by the competent authority". In our view the proper interpretation and application of this subs ection in the light of the principle stated in para 10 supra is that while the valuation ruling will continue to hold the field unless revised or rescinded, any aggrieved importer has the right to approach the concerned officers after ninety days period mentioned above and he would than have to given reason why the ruling has not been revised or rescinded" (emphasis supplied). In derogation of the order of the Tribunal /High Court of Sindh the officials of the Clearance Collectorate ought to seek refuge on one pretext or another for not complying the order in its letter and spirit. Resultant, importer use to approach High Court for clearance of their consignment provisionally , in order to resolve the issue and thwarting filing of petition in the High Court of Sindh for release of their consignment provisionally , power of which has been expressly delegated to the Assistant/Deputy Collector in the provision of Section 81 of the Act, the Hon'ble High Court of Sindh passed order in C.P. No. D-6918 of 2015 reported at 2016 PTD 702 Danish Jehangir v. Federation of Pakistan through Secretary/Chairman and 2 others ordering that "In cases where proper revision application has been filed by an importer in terms of section 25D of the Customs Act, 1969, before the Director General Valuation, and pending such review/revision, a fresh consignment is imported than at the request of the importer who has filed such revision/review the consignment in question shall be released in terms of section 81 of the Customs Act, 1969 after securing the differential amount of duty and taxes in the shape of pay order /Bank Guarantee, without fail." Upon filing CPLA by the Director , Directorate General of Valuation before the Hon'ble Supreme Court of Pakistan, the order of High Court was amended vide dated 11.01.2 017 as "by Collector of Custom of Clearance Collectorate as against existing, Director , Directorate General of V aluation"
7. The Collector of Clearance Collectorate in the light of the aforesaid orders should have issued direction to the competent authority defined in Section 81 of the Act to allow clearance of the consignment of the importers, who have filed revision applications. To the contrary devised a cumbersome procedure of obtaining verification from the Directorate General of Valuation in regards to filing of revision application. Provisional assessment/release of consignment was allowed only upon confirmation to the said effect. In the instant case provisional release of the consignment of the appellant was allowed upon receipt of confirmation, despite of the fact that submission of revision application was sufficient. Assessment order for finalization of value in the instant case could only be passed by the respondent No.1 either upon receipt of revision order passed by DGV/order of the Tribunal against the revision order or valuation advise of the imported goods against the subject GD issued by Assistant/Deputy Director , Directorate General of Valuation in exercise of the clause (b) of Serial No.3 of SRO 494(1)/2007 dated 9- 6-2007 reading as "to issue advises and VRs on the cases referred by the field formations including the determination of values involving provisional assessment under Section 81 of the Act", as evident from the supplied emphasis to the part of clause (b), Assistant/Deputy Director Valuation are empowered to exercise powers for determination of value of any consignment for issuance of advise, corresponding to the goods or class of the goods imported, only when respondent No. 1 allow release of the consignment under the provision of Section 81 of the Act and refer the GD online to Directorate General of Valuation as expressed in Rule 439(a) of the Rules. The Assistant/Deputy Director Valuation are however , barred to determine value of any goods or class of goods and to issue advises, if VR corresponding to the goods in questions is in field. In the case under consideration VR No. 967/2016 dated 16.11.2016 was applicable for levy of duty and taxes, against which appellant filed revision application, which, is pending todate. No decision whatsoever has been taken in that, resultant no occasion was available with the respondent No.1 to pass final assessment order under the provision of sections 80 and 81(5) and Rule 440 of the Ad/Rules. To the contrar y, he passed assessment order dated 27.06.2018 with the application of VR No.1286/2018 dated 17.04.2018 issued in supersession of VR No.1193/2017 dated 07.07.2017 meant for "Auto Parts" not "Motor Cycle Parts" and as such has no nexus with the imported goods of the appellant and cannot be applied being irrelevant. Hence, the obse rvation made by respondent No.2 in para 3 for putting some sense in the order but failed to succeed that the VR No.1286/2018 has not been applied on any imported consignment and as such not applicable on the consignment of the appellant is also without any substance, rather absurd and out of place and least lend any credibility to the passed order .
8. The formed opinion by the respondent No.2 in the order , that the appellant should had chased the revision application filed with the DGV under the provision of Section 25D of the Act against VR No.967/2016 dated 16.11.2016 is without any substance and of no legal effect as it is for the DGV to fix the hearing in the revision application for issuance of decision. No enabling provision exist in the Act laying responsibility on the appellant to do so. The fact of matter is not only appe llant challenged the vires of the VR, rather many other importers, whom hearing notices were issued as to the appellant and on each date advocate of the appellant appeared before her without any exception. Surprisingly , to this date despite conclusion of hearing DGV has not issued any order in revision applications the lapse is entirely on the part of DGV and cannot either be attributed or shifted upon/to the appellant. Resultant, respondent No.2 was not within his tight to construe contrary to the factual position of the case. This misstatement speaks volume about the working of respondent No.2, who leave no stone unturned in the course of recording decision in appeals for putting some sense in it, but failed miserably and passed an absurd order having no nexus with the provision of the Act and even with the law laid down by the Superior Judicial Fora, only for awarding premium to the department despite apparent illegalities and committed lapses.
9. Under the provision of Sections 80 and 81(5) of the Act an assessment order under section 81(2) ibid has to be passed prior to expiry of stipulated period of 6 months given therein i.e. on or before 23.03.2018 from the date of provisional assessment i.e. 25.09.2017. Whereas, the assessment order in the case of the appellant has been passed by respondent No.1 on 27.06.20 18. Hence, it is barred by limitation by 96 ,days and as such without power/jurisdiction and not enforceable under law and the declared value of the appellant stand final under Section 81(4) of the Act as held by the Superior Judicial Fora in 2005 PTD 1968 Trade International v. Deputy Collector of Customs, 2007 PTD 2119, S. Fazal Ellahi & Sons v. Deputy Collector of Customs and others, 2008 PTD 1587 , Clover Pakistan Ltd. v. FOP and other s, 2010 PTD 900 Collector of Customs, MCC of Appraisement v.
Pak Arab Refinery 2011 PTD 235 Sus Motors (Pvt.) Ltd. v. FOP, 2011 PTD 2851 M/s. Crescent Art Fabric v.
Assistant Collector and Customs and 4 others (sic) 2856 Trend International v. Deputy Collector , Dry Port, Multan and 4 others, 2006 PTD 1276 Dewaan Farooq Motors Ltd., Karachi v. Customs Excise and Sales Tax Appellate Tribunal, 2005 PTD 2116 Collector of Customs (Appraisement) v. Auto Mobile Corporation of Pakistan and 2004 PTD 795 Messrs Farooq Woolen Mills, Gujranwala v. Collector of Customs, Dry Port, Sambrial and others, 2012 PTD 980 Dawlance Electronic (Pvt.) Ltd. v. Collector of Customs, Karachi and 2014 PTD 438 Salman T in Merchant v . Collector of Customs, Karachi.
10. For validating the delay on the part of respondent No.1 in passing assessment order within the stipulated period of 06 months, the respondent No.2 in para 6 of the order that the time consumed either by DGV in not deciding the revision application of the appellant even todate and delay on the part of respondent No.1 in passing assessment order deems to be construed as adjournment sought by the appellant. Hence, period of that has to be excluded for the computation of period required for finalization of assessment under Section 81(2) of the Act is based on misconception and inapt interpretation of the clear expression of 2nd proviso of Section (2) of Section 81, which speaks about stay order , clarification from the Board and adjournment sough by the importer , nut as construed/interpreted by respondent No.2. Not a single adjournment was ever sought by the appellant, come what may the respondent No.1 has to pass final assessment order within 06 months without any exception, which he failed and for the lapse on the part of respondent No.1, respondent No.2 made a novel interpretation of the word adjournment only for benefitting the respo ndent No.1, for his carelessness, neglige nce and inefficiency . This is not permitted under any circumstances /statute of Pakistan. Rendering his opinion to the said extent also without lawful authority and as such void and ab-initio.
11. The order passed by respondent No.2 shows that it is based on irrelevant/alien grounds having no nexus whatsoever with the grounds adopted/available in the memo. of appeal filed before him validated from the fact that in para 3 he opined that since Tribunal has set-aside the revision Order No.313/2017 dated 28.02.2017, wherein value determined for motorcycle parts imported by the appellant were not considered, consequent result of which is that the VR No.967/2016 dated 16.11.2016 is still in field /operational and assessment of the appellant goods to be made under the said VR. The respondent No.2, while forming opinion lost sight of the fact that ruling in question is not applicable by virtue of the fact that upon filing revision application, it became wide open and cannot be applied unless, attain finality after crossing all the forum set up under the law In which it can be challenged and the order of the last forum would be construed as final as held in 1993 SCMR 39 CBR v. Chanda Motors and 'O13 PTD 581] Ghulam Nabi v. Federation of Pakistan . It was mandated upon respondent No.2 to pass order in accordance with the facts and grounds of the case/appeal and adduce his opinion after rebutting on those. The assessment order assailed before him correspond to the provision of section 81 of the Act, whereas observation adduced by him in paras. 3 to 6 are completely nullity to those, he went astray , not permitted under law. He has to remain within the ambit of facts of the case and the adopted grounds and decision should had been based on those after aptly rebutting the grounds of appeal as held in 2002 CLC 825 . By the Division Bench of the High Court held that: "Failure to give decision on each issue --- Trial Court while deciding the suit had framed six issues but did not extend reasons separately on all issues and decreed the suit. --- while deciding appeal the Appellate Court had also not decided the suit --- while deciding appeal the Appellate Court had also not deciding the appeal issue-wise.
Both the Courts below had disregarded mandatory provision of O.XX, R.5, C.P.0 and O.XLI, R. 31, C.P.C. respectively . Where in the judgment the Appellate Court had not stated points for determination, decision thereon and the reasons for its findings, the same was not a "judgment" according to law-- -Trial Court and Appellate Court having acted in exercise of its jurisdiction with material irregularity". The Division Bench also held that "Good judgment must be self evident and self explanatory---In other words it must contain reasons which should justify conclusion arrived at and the reasons should be such that a disinterested readers can find same convincing or at least reasonable".
The formed opinion by respondent No.2 is therefore, nothing than absurdity having no warrant of law. Rendering, the order so passed by him as mala fide and as such cannot be termed as a judicial order by any stretch of imagination. Hence, does not conform to the requirement of section 24-A of the General Clauses Act, 1897 as it has been passed on the strength of his personal pre-determined opinion contrary to law and that too is also not containing substantial reasons and did not show it was passed on objective consideration. Such type of orders are deemed to be always treated as illegal, void arbitrary and a result of misuse of authority vested in public functionary . No room was available for such illegal, void and arbitrarily order in any system of law. If any authority Court or Tribunal gave a finding of fact which was not based on material available on record was illegal arbitrarily without discussing and considering the material available on record it became perverse and a perverse finding of fact which is violative of the established principle of appreciation of evidence on record was not sustainable in law.
The principle that every judicial or quasi-judicial finding should be based on reasons containing the justification for the finding in the order itself is an established principle of dispensation of justice. The Order-in-Appeal is in violation of basic principle of the goods governance and mandatory requirement of Section 24A of the General Clauses Act, is not only illegal and void but also not sustainable under law. The said position is also fortified by the judgments of Superior Courts reported as 2005 YLR 1019 , 2007 PTD 2500 , 2004 PTD 1973 , 2005 YLR 1719 , 2003 PTD 777, 2003 PTD (Trib.) 2369 , 2002 MLD 357, 1983 CLC 2882 , 2005. PTD 2519, 2005 PTD 1189, 2003 PTD 2369, PLD 1995 SC (Pak) 272, PLD 1970 SC 158, PLD 1970 SC 173, 1984 SCMR 1014 , 2012 PTD (Trib.) 619 and 2016 PTD 589 .
12. What has been discussed hereinabove, particularly the interpretation of law, legal propositions and observations made thereon and to follow the ratio decidendi observed by the Superior Courts, I set aside the orders passed by respondents in totality being illegal, void and ab initio, appeal is allowed accordingly with no order as to cost.