M.As. (Cond.) Nos.162/KB, 163/KB, R.A. No.196/KB and R.A. No.197/KB of 2003 Versus M.As. (Cond.) Nos.162/KB, 163/KB, R.A. No.196/KB and R.A. No.197/KB of 2003

ORDER

SYED KABIRUL HASSAN (JUDICIAL MEMBER ).---The Department has moved these Miscellaneous Applications bearing No.162 and 163/KB of 2003 requesting for condonation of delay in filing of reference applications. The assessment years involved are 1995-96 and 1996-97.

2. Mr. Habibullah Khan, learned D.R. has submitted that due to frequent shuffle of record the orders of the Tribunal could not be located before 7-1-2003, therefore, these reference applications were filed on 2-4-2003, therefore, he has prayed that delay in filing of reference applications by 69 days may be condoned as inadvertent and beyond control of the applicant. In this respect he has provided various case-laws including case reported as 2002 PTD 549 (H.C.).

Mr. Asif S. Kasbati, learned A.R. for the assessee has submitted that condonation of delay is not a routine matter but it absolutely requires proper adjudication and it relates to the right "obligation". In this respect he has relied on a case-law reported as (1980) 42 Tax 140 (SC 87 PTD 319 (Trib). Secondly he has submitted that these applications have been filed without support of any affidavit as the Department is disputing various facts, therefore, the Department has not proved its case. In this respect he has relied on a case-law 1991 PTD 1056 and 1979 PTD 429.

3. We have heard Mr. Habibullah Khan, learned D. R. and Mr. Asif S. Kasbati, learned A.R. for the assessee. We have also perused the relevant record and case-laws.

4. Various case-laws presented before us by the learned D.R. as well as the learned A.R. for the assessee have been examined by us and we are of the view that to condone the delay is discretion of the learned Judges who are deciding the applications. However, it is a settled' principle of law of limitation that each and every day's delay in filing a reference application has to be explained. In this respect we would like to refer the case decided by the Supreme Court in case-law (1980) 42 Tax 140 (S.C. Pak).

"We have repeatedly held that where a matter is barred by limitation each and every day's delay must be explained before it can be condoned. This, however, has not been done in these cases."

5. In this case there was inordinate delay of 69 days which was not properly explained, But according to own admission of learned D.R. we accept that upto 7-1-2003 there was plausible explanation for circumstances which were beyond the control of the Department. Then still time applicable from 8-1-2003 to 2-4-2003 was within the control of the Department therefore, why they could not have filed the reference applications just after 7-1-2003 but these applications were filed on 2-4-2003 after availing 85 days time whereas they were aware of the fact that these reference applications would become time-barred, because from the facts it appears, that they had utilized the whole three months in filing the reference applications which had already become time-barred, and, this could not be explained by them. In our view this was the case of sheer negligence and this cannot be condoned. In view of this these condonation applications are dismissed. In consequence thereof the reference applications for the assessment years 1995-96 and 1996-97 are also dismissed.

C.M.A./773/Tax (Trib.) Reference applications dismissed.