ORDER AHMAD SAEED AWAN, J.- The petitioner through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks that the notice dated 10.9.1995 be declared 'as null and void, of no legal effect and further that respondent No.3 be directed to give appeal effect under the deeming provisions of sub-section 5 of section 132 of the Income Tax Ordinance, 1979 to the assessm ent years 1994-95.
2. Briefly facts of the case are that the petitioners assessment for the years 1994/95 was made under detailed scrutiny at Rs.85,920/- against the declared income of Rs.55,920/-, the petitioner filed an appeal against the said impugned assessment order before respondent No.1 Commissioner of Income Tax(Appeals) on 12.2.1995; the appeal was fixed and heard on 18.6.1995 and since then no decision on appeal has been made by the respondent No.1 Commissioner of Income Tax(Appeals) within the prescribed period; hence this petition.
3. The learned counsel who is an advocate in this case/petitioner contends that in view of sub- section 5 of section 132 of the Income Tax Ordinance, 1979, the order by respondent No.1 has not been passed within the prescribed period, hence the appeal has been accepted, and the addition made to the declared version by the respondent No.3 stands deleted, the notices issued to the petitioner for recovery by the respondent are illegal, unjust and not sustainable under the law.
4. The learned counsel for the respondents conversely controverted the arguments of learned counsel referring to subsection 6 of section 132 of the Income Tax Ordinance.
5. I have heard the arguments advanced by the learned counsel for both the sides at some length and perused the record with their able assistant.
6. Section 132 of the Income Tax Ordinance was amended by the Finance Act, 1991 and sub- sections 5 and 6 were inserted whereby a time limit of three months has been fixed for disposal of appeals; in case no order is made before the expiration of three months from the end of the month in which the appeal is presented; under sub-section 5 of section 132, the relief sought through the said appeal shall be deemed to have been given; sub-section 6 of section 132 of the Income Tax Ordinance laid down that sub-section 5 of Section 132 shall not apply unless a notice by the appellant or his representative is served on the person of the Appellate Assistant Commissioner/C.I.T./Appeals not less than thirty days before the expiration of period stating that the order on the appeal has not been made.
7. The contention of learned counsel that the condition laid down in sub-section 6 of section 132 of the ordinance is not attracted in a case wherein either the appeal has been fixed or heard as it tantamount to a notice under sub-section 6 of section 132 of the Income Tax Ordinance is misconceived and devoid of merits, sub-section 6 of section 132 of the ordinance provides mandatory pre conditions prior to the operation of proviso of subsection 5 to section 132 of the ordinance. Following three conditions have been imposed by sub-section 6 of section 132 of the ordinance, firstly, no order under sub-section 1 has been made before the expiration of period of three months; secondly, the notice shall be given by the appellant; "Notice" means notice in writing providing the date of filing of appeal and date of expire of period of three months prescribed in sub-section 5 of section 132 of the ordinance and thirdly; the said notice shall be served on the appellant Additional Commissioner/C.T.T. Personally not less than thirty days before the expiration of the period of three months; these conditions are mandatory in nature.
8. In case in hand even the appeal was neither fixed and heard within the prescribed period of three months and the order has yet not been passed by the respondent No. 1 Commissioner of Income Tax (Appeals); though the period prescribed under sub-section 5 of section 132 of the ordinance has been expired while the mandatory provisions of sub-section 6 of section 132 of the Income Tax Ordinance have not complied by the petitioner as he failed to serve a notice personally on the Commissioner of Income Tax (Appeals) as prescribed by sub-section 6 of section 132 of the ordinance. It is an obligatory duty of appellant to comply with the mandatory provisions of sub- section 6 of section 132 of the Income Tax Ordinance to serve a notice personally on the Commissioner of Income Tax (Appeals) irrespective of the fact whether the appeal has been fixed, heard or not.
9. The upshot of the above discussion is that the petition lacks merits and is dismissed accordingly.
There shall be no order as to costs.