REFERENCE APPLICATION NO. 54/1-LB OF 1983-84, DECIDED ON 19TH DECEMBER, 1983. Versus REFERENCE APPLICATION NO. 54/1-LB OF 1983-84, DECIDED ON 19TH DECEMBER, 1983.
ORDER
MUHAMMAD MAZHAR Au (CHAIRMAN). ‑This reference application has been filed under section 136 (1) of the Income‑tax Ordinance, 1979 (hereinafter referred to as "the Ordinance") instead of under section 66 (1) of the Re pealed Income‑tax Act, 1922 (hereinafter called "the Act") by the Com rnissioner of Income‑tax C... Zone‑C, K... It arises out of the order of the Appellate Tribunal dated 28th February, 1983, passed its I. T. A. No. 480/KB of 1980‑81 relating to charge year 1977‑78. The order of the Appellate Tribunal was served upon .the applicant on 16th June, 1983: whereas the reference application has been presented on 18th August, 1983, i.e. on the 63rd day of the date upon which the applicant was served with a notice of the order under subsection (4) of section 33 of the Act. The Ordinance came into force with effect from lot dame of July, 1979. It repealed the Act. Section 166 of the Ordinance makes provision for repeal and savings.
2. The assessee's appeal relating to the year under reference was pending before the Appellate Commissioner, Range, K..., on the date of coming into force of the Ordinance. It was, therefore, in terms of clause (f) of subsection (2) of section 166 of the Ordinance, to be continued and disposal, of as if the Ordinance had not come into force. The learned Appellate Assistant Com missioner decided this appeal by his order dated 22nd June, 1980. The revenue filed further appeal asst the said order of the learned Appellate Assistant Commissioner before the Appellate Tribunal on 16th September, 1980. The Tribunal vide its order dated 28th February 1982, disposed it of and communicated its order to the applicant as stated above.
3. The office of the Tribunal reported as also notified to the applicant that this Reference Application was time‑barred by three days. The applicant has, however, not submitted an application for condonation of delay: In identical circumstances a Full Bench of the Appellate Tribunal vide its order dated 23rd October, 1983, passed in R. A. Nos. 226 and 227/KB of 1980‑81, dismissed the Reference Application, in limine, as barred by limitation. The relevant portion from the aforesaid order of the Tribunal is extracted below :‑
"(2) From the above‑noted facts it is evident that the assessee's appeal for these two years which were pending before the Appellate Assis tant Commissioner at the commencement of the Ordinance, were to be continued and decided by him under the provisions of the Ac as if the Ordinance had not come into force. The second appeal against the combined order of the Appellate Assistant Commissioner, dated 12‑12‑1979, therefore, obviously laid under section 33 of the Act. These were decided by the Tribunal under the provisions of the Act on 1‑11‑1980 and the consolidated order of the Tribunal was communicated to the applicant in terms of clause (g) of subsection (4) of that section. It is a well‑established proposition of law that the commencement of lis carries with it the implication that all rights of appeals then in force remain available to the parties thereto until the final disposal of the lis. It is also an undisputed proposition that an appeal and second appeal etc. are nothing but steps in furtherance of the lis and are, therefore, to be regarded as one legal proceeding. A right of appeal is vested by law as exists on the day of commencement of the lis and it is to be governed by the then. prevailing law and not by the law that prevails at the date of filing the appeal, unless it is so expressly provided six the sub sequent legislation or it is taken away by necessary implication of intendment. In the instant case, however, the Legislature has, on the contrary, specifically provided that any proceedings pending of the commencement of the Ordinance before any Income‑tax autho rity, the Appellate Tribunal or any Court or Tribunal by way of appeal, reference, revision of prosecution, shall be continued and disposed of as if this Ordinance had not come into force. We would, therefore, even at the cost of repetition mention that in view of the clear provisions of law as contained in clauses (a) and (1) of sub section (2) of section 165 of the Ordinance, we face no encounter to reach the conclusion that the orders passed by the Appellate Assis tant Commissioner on appeals pending before the commencement of the Ordinance were passed under section 31 of the Act as if the Ordinance had not come into force. Consequently, the Tribunal admitted and decided the second appeals under the provisions of the repealed Act. Upon being served with a notice of the order under subsection (4) of section 33 the assessee or the Commissioner could make an application in the prescribed farm requiring the Appellate Tribunal to refer to the High Court any question of law arising out of such order under the provision of section 66 (1) of the Act. The provisions of section 136 of the Ordinance were not attracted to the year under consideration. The period for filing the reference applications under the Act is 60 days from the date the order of the Tribunal is communicated to the applicant ; whereas these applications have been presented, as already stated, on the 89th day of the said date. They are thus time‑barred by 29 days. No application for condonation of delay either accompanied the reference applications or has been made at any subsequent stage up to the date hereof showing sufficient cause for not filing them in time. The mere fact that the applications have been shown to have been filed under section 136 (1) of the Ordinance would rot save the applicant of the legal consequences. At any rate, we are clearly of the opinion that the making of the application under section 136 is on account of lack of due care and caution inasmuch as the legal provisions, as already stated, are absolutely clear and free from ambiguity."
Earlier than this, a Division Bench of the Tribunal, Karachi in several similar matters bad taken the same view as enunciated by the Full Bench of the Tribunal in the above‑noted case.
4. Mr. A. A. Dareshani, the learned counsel for the applicant sub mitted that the several orders of the Tribunal on this issue notwithstand ing he may be permitted to make detailed arguments as soma legal aspects of the case, according to him, were perhaps not brought to the notice of the Tribunal during the hearing of earlier reference applications. We acceded to his request. Mr. Dareshani contended that the applicant has rightly presented the reference application under section 136 (1) of the Ordinance and that it is within time inasmuch as a period of 90 days for filing reference has been prescribed by section 136 (1) of the Ordinance as against 60 days allowed by section 65 (1) of the Act. The counsel submitted that on let July, 1979; the Act stood abrogated. It is dead except as to matters and transactions passed and closed. The repealing Act has no doubt inserted certain saving clauses but these are in respect of pending proceedings. In his submission each clause of section 166 (2) speaks of the matters which "had been filed before the commencement of the Ordinance but not in respect of matters which were to be done after the commencement of the Ordinance." Referring to clause (a) of subsection (2) of section 166 of the Ordinance, the counsel vehemently argued that it is self‑contained and concerns only with the proceeding for the assessment of a person who had filed return of income before commencement of the Ordinance. It deals with assessment proceedings and not appeals. Likewise, in terms of clause (h) the Ordinance will be applicable, where a return of income is filed after the commencement of the Ordinance otherwise than in pur suance of notice under section 34 of the repealed Act. In short, the counsel urged that each clause of subsection (2) of section 166 is independent of each other. The learned counsel then submitted that he will heavily rely on clauses (i) and (j) of subsection (2) of section 166 of the Ordi nance. Referring, firstly, to clause (j) the learned counsel submitted that it is applicable to cases where the period of limitation prescribed for any application etc., under the repealed Act had expired on or before the commencement of the Ordinance but it will not, according to him, be extended to a case where the period of limitation had not expired on or before the commencement of the Ordinance. In such cases, the counsel so contended, the provisions of the Ordinance were to govern the situation. Likewise, according to him clause (i) is concerned with the proceedings pending on the commencement or the Ordinance before any Income‑tax authorities etc., but it cannot be stretched to any proceeding filed before any Income‑tax authority, the Appellate Tribunal, or Court etc., after the commencement of the Ordinance. The learned counsel, therefore, pleaded that since this reference application was neither pending before the Appellate Tribunal on or before the commencement of the Ordinance nor the period prescribed for filing the Reference Application under the Act had expired on or before the commencement of the Ordinance, and hence neither clause (l) nor clause (j) could be extended to the instant case. The learned counsel, therefore, emphasised that since the law of limitation is a procedural law, hence it comes into play in respect of all matters where the period prescribed had not expired. He urged with vehemence that the Ordinance nowhere says that the Act will continue to exist in respect of proceedings to be filed or commence after the repeal of the Act. The learned counsel was unable to make a reply to our question as to under what provision of law the assessee or the Department could file an appeal to the Appellate Tribunal against the order of the Appellate Assistant Commissioner inasmuch as the learned Appellate Assistant Commissioner in terms of clause (i) of section 166 (2) of the Ordinance continued and disposed of the appeal under the provisions the Act as if the Ordinance bad not come into force. We could not find any provision existing in the Ordinance authorizing the assessee of the Commissioner to file appeal before toe Appellate Tribunal against the order of the first appellate authority passed on an appeal pending on the commencement of the Ordinance.
5. We have given our earnest consideration to the submissions mad by Mr. Dareshani and we have not the least hesitation that the question we have to consider in this application is wholly covered by the above referred decision of the Full Bench of the Tribunal. The strenuous argument of the learned counsel for the applicant have failed to convince us that clause (j) of section 166 (2) could be interpreted in the manner h sought to do. A bare reading of clauses (a), (c), (i), (d) and (i) of subsection (2) of section 166 of the Ordinance, in our opinion, makes it absolute clear that the repealed Act has been kept slime for all purposes in ryes of all the above‑mentioned matters for any year ending on or before the 30th June, 1979, save those matters which are specifically enumerated under certain clauses of subsection (2) of the said section. The insertion of clause (j), on which the learned counsel has placed heavy reliance; in our opinion, cuts his arguments rather than lending any support to it. In our opinion, as and by way of abundant caution, the Legislature has through this clause made it manifest that notwithstanding the question of limitation being of procedural law, it would not be deemed to have come into play in respect of any of the matters where the period prescribed under the repealed Act had expired on or before the commencement of the Ordinance. If the application, appeal, reference or revision is entertain able under the repealed Act, by virtue of the various specific provisions of law, then the question of the period of limitation, if any, prescribed therefore in the relevant section of the old Act could not be ignored simply for the reason that a larger period of limitation has been prescribed under the corresponding provisions of law made in the Ordinance. If the Legislature intended to do away with the period prescribed for any application, appeal, reference or revision etc., under the repealed Act then it could have either said so explicitly ors would have remained silent instead of specifically inserting clause (j) of subsection (2) of section 166. It is beyond one's apprehension that the Legislature could give different, treatment in relation to the tame limit to cases which 'had barred no time on or before the commencement of the Ordinance and cases which were to be filed after the commencement of the Ordinance but under the provisions of the repealed Act.
6. The upshot of the above discussion is that there is no force in the contention of the learned counsel. We according repel them following the above‑noted Full Bench's decision of this Tribunal and also for the same reasons as given therein we dismiss this application, in limine as barred by ‑limitation.
M. B. A. Application dismissed.