Messrs NIDA-E-MILLAT, LAHORE vs COMMISSIONER OF INCOME TAX, ZONE-I, LAHORE

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This petition for leave to appeal is directed against the judgment of the Lahore High court dated 2-10-2000 whereby the learned High Court declined to interfere in the order of the Commissioner of Income Tax (Appeals) who had dismissed the same being barred by time concluding para. From the judgment is reproduced hereinbelow:--- "Heard the learned counsel for the parties. Learned counsel for the petitioner in terms of statement of the case claims that the Tribunal ought to have modified or vacated the order of the C.I.T.

(Appeals) on the ground that the assessee was not allowed reasonable opportunity of explaining the delay. The contention as couched in question No,2 is necessarily misplaced. According to the findings of fact as recorded by the Tribunal, the petitioner was properly served for the date of hearing obviously, no separate notice was required to confront the assessee that its appeal was barred by limitation. All the moreso when no application for condonation of delay was made before the Commissioner nor any excuse had been put up before him. In absence of an explanation coming forth on the record or rightly found by the Tribunal Commissioner Appeals was well within his domain to reject the appeal as barred by limitation. Learned counsel for the petitioner has not cited either any provision of law or a pronouncement of this Court that a forum exercising judicial or quasi-judicial functions is required to confront his petition of a natural consequence of the default made on the part of his petitioner or appellant."

2. Learned counsel for the petitioner contended that he had no notice of passing of the order by the Income Tax Officer nor it was pointed out to the appellant that the appeal is time-barred, therefore, under the circumstances there was no delay in filing of appeal and the learned Commissioner may not have non-suited the petitioner on this technical ground. According to the learned counsel the appeal was decided in his absence and if he had any knowledge he would have moved an application for condonation of the delay.

3. On the other hand learned counsel appearing for the Department contended that the appeal was time-barred and no application was submitted nor any explanation was offered to condone the delay, therefore, according to him the Commissioner of Income Tax with lawful authority declined to interfere in the order of the Income Tax Officer. Similarly the learned High Court in exercise of the jurisdiction under section 136 of the Income Tax Ordinance, 1979 rightly had not intervened in the order of the Commissioner because no law point was involved.

4. We have heard learned counsel for the parties and have perused the record so made available.

5. It is to be noted that admittedly no application was moved before the Commissioner of Income Tax for the purpose of condoning the delay. Surprisingly for the first time before this Court an application has been filed seeking condonation of delay, relevant para. Therefrom is reproduced hereinbelow:--- "That through the appeal before the Commissioner of Income Tax, was within time and cannot be declared time-barred. Still by way of abundant caution, the petitioner is submitting this application for condonation of delay of alleged one day before the Commissioner of Income Tax (Appeals).

Although an affidavit was filed for explaining all the circumstances and showing that the appeal is within time."

6. Filing of the above application at the stage itself goes to indicate that the appeal filed before the Commissioner of Income Tax was barred by time, therefore, the petitioner had an obligation to make an application before the said forum and at this stage this Court in exercise of jurisdiction under Article 185(3) of the Constitution cannot condone the delay which has occurred in filing of the appeal before the Commissioner. Besides as far as the limitation is concerned, it does create a right in favour of the other side and if the appeal or proceedings are time-barred it becomes the duty of the person who has approached the Court at least to submit an application or make an explanation but in the instant case admittedly no such effort was made knowing well by the petitioner that the appeal was barred by time. Therefore under these circumstances, we are of the opinion that the High Court has rightly declined relief to the petitioner.

7. For the foregoing reasons, the petition is accordingly dismissed and .