REFERENCE APPLICATIONS NOS. 159 TO 164 OF 1980-81 AND I.T.A. NOS.3942, 3943, 3946, 3969 TO 3971 Versus REFERENCE APPLICATIONS NOS. 159 TO 164 OF 1980-81 AND I.T.A. NOS.3942, 3943, 3946, 3969 TO 3971
ORDER
SIKANDAR HAYAT KHAN (MEMBER) ‑ ‑These six reference applications for the charge years 1973‑74 to 1978‑79 at the instance of the Commissioner of Income‑tax L...Z... (Hereinafter called the applicant) emerge out of the orders of my learned brother, the Judicial I.T.A. Nos.3942, 3943, 3946, 3969, 3970 within a period of 60 days as contemplated under subsection (1) of section 66 of the repealed Income‑tax Act, 1922 the applicant vide Tribunal's letter No. R.A.159 to 164/1980‑81, dated 25‑7‑1984 was required to explain the circumstances, which prevented him from not filing such applications within the period of limitation. In response to this letter the applicant vide his letter No. 136(1)/80‑81/3111‑J, dated 5‑8‑1984
"I am directed to state that the Tribunal's orders, dated 6‑10‑1980 were received in this office on 6‑11‑1980. Since the appeals were decided ' by the Tribunal after the promulgation of the Income‑tax Ordinance, 1979, all the provisions of the said Ordinance were applicable in this case. Taking into account the date of receipt as 6‑11‑1980, limitation of 90 days prescribed by the Ordinance was due to expire on 4‑2‑1981. As such application filed on 2‑2‑1981 is apparently within time."
2. From the reply of the applicant it is abundantly clear that he wants the present reference applications to be treated as having been filed under the Income‑tax Ordinance, 1979. It is precisely because of this reason that he has not sought permission of the Tribunal for condonation of delay in the filing of the reference applications.
3. As the question of limitation is critical for the disposal of the reference applications, this question is taken up for disposal in the first instance. In this connection we would like to put on record that the question of limitation under identical circumstances was earlier considered by a Full Bench of this Tribunal in 1984 P T D (Trib.)
124. In this case the learned Chairman of the Tribunal with whom the other Members agreed held as under:
"Notwithstanding the repeal of the Income‑tax Act, 1922 (XI of 1922) and without prejudice to the provisions of section 6 or section 24 of the General Clauses Act, 1897 (X of 1897) any proceedings pending on the commencement of this Ordinance before any Income‑tax authority, the Appellate Tribunal or any Court or Tribunal by way of appeal, reference, revision or prosecution, shall be continued and disposed of as if this Ordinance had not come into force. The learned Appellate Assistant Commissioner decided the appeals for the years in question by a combined order dated 12‑12‑1979. The applicant instituted second appeals before the Appellate Tribunal on 4th March 1980, which were as already stated, decided on 1st November, 1980. The order of the Tribunal was admittedly communicated to the applicant on 22nd March 1981. The last date for filing the Reference Applications under section 66(1) was, therefore, 21st May, 1981, whereas these have been presented on 6th June, 1981. The learned counsel for the applicant did not dispute that if the applications are found to have been entertainable under subsection (1) of section 66 of the Act, then they are time barred by 16 days.
Under the aforesaid facts and circumstances of the case and for the reasons recorded hereinabove, were have not the least hesitation in holding that all these applications have been rightly made under subsection (1) of section 66 of the Act, and hence they are barred by limitation. The above noted contention of the learned counsel for the applicant is patently devoid of merit and stands repelled accordingly."
4. In the case of Messrs M ..S ..N ..M .its appeals before the learned A. A. C. were pending on the date of coming into force of the Income‑tax Ordinance, 1979 and were disposed of by a combined order, dated 29‑3‑1980. Against this order appeals at the instance of the applicant were dismissed by the Tribunal by virtue of I.T.A. Nos. 3942, 3943, 3944, 3969, 3970 and 3971, dated 6‑10‑1980. This order of the Tribunal was received in the office of the applicant on 6‑11‑1980; whereas reference applications were received in the office of the Tribunal on 2‑2‑1981. The reference applications having been filed under sub-section (1)of section 66 of the repealed Income‑tax Act, are, therefore, late by 28 days. In arriving at this conclusion we are strengthened by section 166 of the Income‑tax Ordinance, 1979, which deals with repeals and savings. In this connection clause of subsection (2) of section 166 of the Ordinance is set out below:‑ "any proceeding pending on the commencement of this Ordinance before any income‑tax authority, the Appellate Tribunal or any Court or tribunal by way of appeal, reference, revision or prosecution, shall be continued and disposed of as if this Ordinance had not come into force".
5. From a plain reading of the above clause there is no manner of doubt ‑left with us that were any appeal, reference, revision or, prosecution was pending at the time of the commencement of this Ordinance before any Income‑tax authority it was to be continued under the repealed Income‑tax Act, 1922. In the present case appeal of Messrs N ....M....was pending before the learned A.A.C. when the Ordinance came into force with effect from 1st July, 1979. There is no dispute with regard to the fact that these appeals were disposed of by virtue of learned. A. A. C. combined order dated 29‑3‑1980 Subsequently at the behest of the applicant the departmental appeals were dismisses by the Tribunal vide its orders, dated 6‑10‑1980. These orders were admittedly received by the applicant on 6‑11‑1980 as is evident from his letter No.136(1)/80‑81/3111/J, dated 5‑8‑1984. The applicant wants that in view of Income‑tax Ordinance, 1979 these reference applications be treated as having been filed within the time according to the provisions of subsection (1) of section 136 of the said Ordinance. On account of the specific provisions of clause I of subsection (2) of section 166 of the Ordinance, it is not possible for us to accept the prayer of the applicant.
6. Our attention was also invited to the words 'on or before', as these words appear in clause (j) of subsection (2) of section 166 of Income‑tax Ordinance, 1979. This clause is incorporated below:‑‑
"Where the period prescribed for any application, appeal, reference or revision under the repealed Act had expired on or before the commencement of this Ordinance, nothing contained in this Ordinance shall be construed as enabling any such application, appeal, reference or revision to be made under this Ordinance by reason only of the fact that a longer period there for is prescribed or provision is made for extension of time in suitable cases by the appropriate authority."
7. It was argued on behalf of M/s. M....S....N....M....that the words on or before the commencement of this Ordinance may be read in the light of P L D 1959 (W.P.) Kar.
94. In this case section‑167(‑8) of the Sea Customs Act was amended by section 3 of the Sea Customs (Amendment) Ordinance, 1957 and by that amendment offences under section 167(8) of the Sea Customs Act became triable by the Customs Authority only and ceased to be triable and punishable by Court of law. Here A....H....J....while interpreting the effect of on or after observed as under:
"Since section 2 of that Ordinance and Act of 1957 abolished the mode of trial by a Court of Law as from 23rd day of March, 1956 it became necessary to say in section 3 that anything done under section 167(8) of the Sea Customs Act on and after 23rd March, 1957 should be deemed to have been done in accordance with the amended provision. On the language of sections 2 and 3 of the Amending Ordinance and the Act the amendment took effect both in respect of penalty and procedure retrospectively from 23rd March 1956. The effect of the repeal is to be assessed in the light of the intention expressed in those two sections of the Amending Ordinance and Act. According to those provisions, proceedings instituted on or after the 23rd day of March 1956 would no doubt be conducted in accordance with the new amendment. But offences committed before the 23rd March 1956 and proceedings instituted before that day would continue. to be conducted in accordance with the provisions of the Sea Customs Act as they stood before the 23rd of March, 1956. Section 3 of the Amending Ordinance and the Act brought under the purview of the amendment only those proceedings which were instituted after 23rd March, 1956 and left those instituted before that day to be dealt with in accordance with the provisions of section 6 of the General Clauses Act. What fell under the protection of section 3 of the Amending Ordinance and Act of 1957 were the remedies available after the 23rd of March, 1956 and proceedings instituted after that date."
8. From the above authoritative pronouncement of the words on or before it is abundantly clear that where the period prescribed for any application, appeal, reference or revision had expired on or before the commencement of this Ordinance, nothing contained in this Ordinance could be construed as enabling such application, appeal, reference or revision to be made under this Ordinance merely on account of the fact that a longer period is prescribed or provision is made for extension of time in respect of such appeals or reference applications, as the case may be. Secondly these proceedings being of a procedural character could only be finalized under 'the repealed Income‑tax Act, 1922 which prescribed a period of 60 days for filing of reference applications by the applicant before the Tribunal. This onus not having been discharged by the applicant the reference applications are in our opinion clearly hit by limitation.
9. The effect of repeal on the‑pending proceedings was considered in P L D 1961 S C 523: In this case, A.R. Cornelius, C.J. held as under:‑
"The answer to that argument is that by virtue of section 6 of the General Clauses Act, the proceedings in respect of Sugni Chand and his property 4hich have been continued in force, carry their own law with them, i.e., that. they should be decided under the law relating to intending evacuees as it was at the time when they were instituted, notwithstanding the repeal of these provisions. Therefore, in relation to these proceedings, the expression "Law" occurring in Article 4 of the Laws (Continuance in Force) Order must be understood in a special sense, namely,, as having reference to the special law which these proceedings carry with them for their proper determination."
10. In another case effect of repeal on the pending proceedings was considered in P L D 1963 (W.P.) Kar. 715. In this case Masud Ahmad, J. held as under:
"The right to file a suit under this provision .of law being a substantive right and being not a matter relating to procedure only, it could be taken away by the Legislature, but the intention had to be expressed in clear words, or . it could be gathered from the language used by necessary intendment. It was not intended that the Act repealing the Karachi Small Causes Court Act was to apply retrospectively and therefore, as the application under section 18 of the Karachi Small Causes Court Act had been filed before that Act was repealed and as even before the application under section 18 was granted, the petitioner had a right to file a suit to claim compensation for trespass, as defined under section 23 of that Act, that right continues to vest in him and can be enforced, although the Act under which the right had accrued is no longer in force. The view of the case taken by the trial Court, namely, that after the repeal of the Karachi Small Causes Court Act no proceedings under section 24 of the Act can be taken is, therefore, erroneous.
11. The interpretation of pending proceedings was examined in PLD 1970 SC 264. In this case Waheeduddin, J. observed as under:
"One of the effects of the repeal is that it shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. It is, therefore, quite clear that all the investigations, or proceedings which are contemplated are to continue as if the Repealing Act or Regulation had not been passed On this language it is quite clear that the trial of criminal cases has to be in accordance with rules of procedure in force at the commencement of the trial and the same procedure has to be followed."
12. On account of the above authoritative pronouncements of the High Court and the Supreme Court there is no manner of doubt left with us that these were pending proceedings when the Act was repealed. These proceedings could thus only be finalized under the provisions of the old Act. Apart from it we would like to put on record that the Income‑tax Ordinance, 1979 specifically provides for the period of limitation to be computed in accordance with the provisions of clauses I and J of subsection (2) of section 166 of the income‑tax Ordinance, 1979. Thus, in respect of this case the period of limitation could only be 60 days according to the Repealed Income‑tax Act, 1922.
13. As the reference applications were admittedly received in the office of the Tribunal on 2‑2‑1981 these are hit by limitation by a period of 28 days. Since the applicant has not filed any application for the condonation of delay in the filing of reference applications it is not possible for us to entertain them. These reference applications are consequently held to be out of time.
14. The learned D.R. before us reiterated the same please which were earlier raised before the Tribunal in the reported cases. On account of the reasons stated in the earlier reported decisions of the Tribunal we do not find any hesitation in holding that the reference applications filed by the applicant are out of time. In the absence of any application having been filed on behalf of the applicant for condonation of delay, these reference applications are dismissed in limine.
M . B . A Applications dismissed.