M.A. No. 10/LB of 2004, decided on 11th August, 2004. Versus M.A. No. 10/LB of 2004, decided on 11th August, 2004.

ORDER

Through this miscellaneous application; a request has been made at the instance of the assessee/applicant on the ground that the order rendered by the learned Tribunal in this case by virtue of its order, dated 4-11-2003 bearing I.T.A. No. 4054/LB of 2002 (Assessment year, 2001-2002) may be rectified in terms of section 156 of the Repealed Income Tax Ordinance, 1979 read with section 221 of the Newly born Income Tax Ordinance, 2001.

2. The crux of the contentions raised in. the miscellaneous application is that the order passed by the Tribunal, dated 4-11-2003 suffers from factual as well as legal mistakes falling within the ambit and scope of rectification and calls for indulgence of the Bench. Firstly, that the impugned order has been passed after a lapse of almost six-months from the date of hearing of the case which in view of the; dictates, of superior Courts calls for fresh hearing to the parties. Secondly, all the grounds raised and squarely argued before Bench remained unanswered and un adjudicated by the learned Tribunal. According to the learned counsel for the assessee, the cash in hand and the bank shown by the applicant is not related to business; rather that was separately declared in the wealth statement, inclusion of the same in the capital for the purpose of determining the sales was clear-cut deviation from the applicant's history. Thirdly, that even otherwise, the order under application is not in consonance with the provisions of section 24A(2) of the General Clauses Act, 1997. It was accordingly prayed that the necessary pointed rectification may graciously be made by the learned Tribunal in its order and un-adjudicated left-over issues may kindly be ruled upon.

3. Facts forming background of the present miscellaneous application are that the assessee/applicant, an individual, derives income from selling paints on whole-sale basis. During the course of assessment proceedings, it was disclosed to the Assessing Officer that the applicant besides declaring capital employed in business at Rs.19,00,000 had also shown in the wealth statement, notes and coins at Rs.10,54,979, cash with Standard Chartered Bank and Emirates Bank at Rs.317,751 and Rs.52,226 respectively totaling Rs.14,26,955. From this factum, it was inferred by the Assessing Officer that use of such amount, which was almost near to the capital employed m business cannot be ruled out. Accordingly, the intention was shown by the Assessing Officer to treat the entire amount i.e. Rs.33,26,955 as business capital and to rotate the same to 12 times being the business is in the nature of whole-sale and the total sales to be evolved at Rs.3,99,23,460. The explanation offered by the assessee could not convince the Assessing Officer and he, however, for the reasons recorded in the assessment order, adopted sales at Rs.1,50,00,000 against the proposed estimation of sales at Rs.3,99,23,460. Ultimately, net income was computed at Rs.13,01,857 against returned at Rs.342,316. When this assessment order was assailed before the first appellate authority, he after having taken cognizance to the pros and cons of the facts available on record and the contentions raised before him maintained the impugned order by observing that the applicant was maintaining current bank account which is just like keeping the cash in hand. Also observed that no business man keeps cash in idol condition when he is running flourishing business. The assessee assailed this order in further appeal and the contentions raised before the two authorities below were reiterated and the Tribunal after having considered the facts of the case in its entirety and also after perusing the orders passed by the authorities below observed that the sales were estimated by the Assessing Officer on good grounds especially when the learned AR was not able to make out a case for intervention of the Bench.

4. Both the learned representatives appearing at the bar have been heard in this regard at a great length.

5. To our mind, the present application is not maintainable on legal as well as on factual grounds. Reasons advanced for seeking rectification of the aforesaid Tribunal's order are that inordinate delay in recording the order and receiving the same has caused prejudice to the assessee/ applicant not only in terms of delay in deciding the issues but also on merits, as the arguments made at the time of hearing, both on factual as well as legal issues, have not been addressed properly in the order, dated 4-11-2003 due to afflux of material time.

6. What happened in this case was that the appeal was heard on 27-5-2003 and the order was passed within 7 months from the date of hearing of the case i.e. on 4-11-2003. Although, the order was passed by the Tribunal after some delay but rectification of that order cannot be sought on this ground. There is no cavil to this proposition that when the statute confers a certain duty upon an officer, this is that officer who has to make up his mind and pass the order in accordance with law and to exercise his jurisdiction after having taken cognizance to the impugned orders as well as the arguments advanced by the parties in appeal and the documents, if any, furnished by them. It would, not be out of place to mention here that generally the argument advanced by the parties in appeal are noted down in the Court register besides nothing citations of the cases-law relied upon by either party in his support/defence. That register is always consulted at the time of delivering the judgments. This aspect of the case cannot be ignored as well that one may 'take more time in deciding the controversy involved in the cases related to Fiscal Statute and passing the order thereafter because tax liability of the subject is to be determined by the competent authority. That is why the Legislature has not prescribed any time limit in the statute book for rendering judgment by the Appellate Authorities after concluding the arguments by the parties in appeal or the reference application etc.

7. We remember that once an attempt was made by the legislature to fix the period of time for disposal of the appeal which was six months as was stipulated in subsection (7A) of section 135 of the Income Tax Ordinance. 1979. This limit of time was linked with the date of filing of the appeal. It was stated therein that limitation would start running from the end of the month in which the appeal under subsection (1) of section 34 would be presented to the Tribunal and if no order was made before the expiration of six months, the relief sought by way of the said appeal was to be deemed to have been given. However, the period for which hearing of appeal was adjourned at the request of the applicant that period of time had to be excluded in order to calculate the limitation. This provision had to come into force on a date to be notified by the Tribunal which would not be later than July 1, 1992. But ultimately, the limitation for notifying the said date by the Tribunal was omitted by the Finance Act, 1992. The wisdom behind was that since the Income Tax is a fiscal statute, therefore, the subject may not be taxed heavily by rendering a judgment or passing the order hurriedly. This is also a famous maxim/saying that justice hurried is justice burried.

8. So far as the cases-law referred to by the learned counsel for the applicant in re: PLD 1966 SC 828, PLD 1960 (SC) (AJK) 11, 1996 SCMR 669 and 1940 MLD 1012 are concerned, the decisions in all those cases rest around altogether distinguishable facts and as such are not being taken into consideration for disposal of the present miscellaneous application filed at the instance of the applicant. In fact, the cases-law, relied upon, are not at all squarely applicable to the facts stated in the present miscellaneous application being the decisions rendered in those cases are in the nature of civil proceedings where the law for deciding the cases are quite different viz the fiscal statute. Thus, the procedure prescribed in Civil Procedure Code is not generally applicable to the matters relating to the fiscal law while delivering the judgment.

9. In view of foregoing discussion, we are inclined to hold that a judgment cannot become invalid merely for the reason that the same was given after the expiry of several months from the date of hearing of D the arguments. It is also imperative to mention here that not only the Order XX, Rule 1 C.P.C. nor Rule 5 of Chapter-IV of the rules and orders of the High Court of Judicature at Lahore, Volume-V but also the Fiscal Statutes have not prescribed time for pronouncement of judgment. Nevertheless, it is desirable to deliver the judgment without inordinate delay so that the justice must not only be done but manifestly appear to be done. Anyhow, the higher Appellate Courts are competent to declare any order passed by the subordinate Court/authority to be invalid provided it is noticed by them that certain grounds of appeal have left un-adjudicated or the documents so furnished remained un-noticed or the order so passed was without lawful jurisdiction and not otherwise.

10. Next contention of the learned counsel for the assessee pertains to passing sketchy order by the Tribunal which is violative of section 24A(2) of the General Clauses Act, 1897. This plea is misplaced. It would not be out of place to mention here that different modes/types of orders are rendered by the Appellate Courts. In some cases, considering the facts or the circumstances of the case, an "authoritative order" is passed on all the issues raised before them. In some cases, "Concurrent Judgments" are rendered by the Courts after considering the legal or the factual controversies involved therein. Some time, "Directive Orders" are passed by the Courts after having taken regards to the facts of the case in it totality. So, in a case, where "Concurring Judgment" is delivered by the Courts, it is not all, necessary to render a detailed judgment therein. It is so because the reasons or the contentions as are advanced by the lower authorities are generally adopted by the Courts until and unless additional or new grounds of appeals are put forth by the assessee. In such circumstances, it is always construed that a detailed order has been passed and in such-like situation, the appellate order is not read in isolation. Rather, that order is always read in accumulation with the orders passed by the lower authorities, Hence, this objection of the learned counsel for the assessee is overruled. Referring to the facts of the present case, this Tribunal has rendered the concurring judgment after having considered the orders passed by the authorities below ands the contentions raised by the parties in appeal before the Bench. Certainly; that order is a speaking order and can be held to be a quasi- judicial order within the parameter set up by the law. The tenor of the order amply manifests application of judicial mind to the issues and the points of controversies involved in the case. Actually, this is a case of one estimate against the other because the assessee is not, at all, maintaining any books of accounts and he had miserably failed to substantiate his returned version with any corroborative evidence. In fact, the whole details and data have been furnished by the assessee on estimate basis, thus to say that the Tribunal while passing the order has ignored the contentions raised by the learned counsel for the assessee is devoid of any force.

11. Moreover, the facts of the present case, it cannot be held that invalid order has been passed by the Tribunal on 4-11-2003 as the material evidence available on record has escaped consideration by, the Bench while rendering the judgment. Conversely, the order has been passed by the Tribunal after hearing the learned counsel for the applicant and after having taken cognizance to the facts of the case in its entirety as well as the material, if any, relied upon by the parties in appeal.

12. It is worth while to mention here that the applicant is not maintaining any books of accounts meaning thereby this is a "no account case" and in such circumstances how could the assessee's assertion can be clothed with certainty that the notes and coins amounting to Rs.10,54,979 were not utilized for the purposes of business. Had it been so, the amount in question could have been deposited in the saving or in the current bank accounts or Defence Saving Certificate may be purchased for such amount etc. in order to substantiate the contention. In fact; at the first place, the onus to prove that the case in hand and the amount lying in current bank accounts was not utilized in the business. Mere mentioning in the wealth statement does not absolve the applicant from his responsibility to substantiate the contention that the amount shown as notes and coins and cash in the current bank accounts' remained outside the business. It is also common knowledge that no prudent businessman can keep such a huge amount in the shape of notes and coins considering the law and order situation in the country. Even otherwise, perusal of the Tribunal's order clearly spells out that none of the assessee's contention has escaped consideration by the Bench while rendering the judgment. We, therefore, hold that a valid order has been passed by the Tribunal although that was passed after a period of six months from the date of concluding the arguments. In fact, the applicant under the garb of miscellaneous application wants to acquire another round of hearing of the appeal which is not permissible under the Income Tax Ordinance.

13. Actually, the scope of rectification/amendments in the Tribunal's order under section 156 of the Repealed Income Tax Ordinance, 1979 read with section 221 of the New Income Tax Ordinance, 2001 revolves around the mistake if brought to its notice either by any income-tax authority/the Commissioner (Appeals) or the Appellate Tribunal which should be apparent from the record. When viewed the contents of the miscellaneous application in this perspective, no mistake apparent from the record could be pointed out by the applicant considering which the Tribunal can amend or rectify its order. We further hold that the application for rectification of mistake is misplaced, as no mistake or error patent from the record has been pointed out. The purport and the tenor is, in fact, to review the order already made by the Division Bench of this Tribunal which is obviously not warranted by the judicial propriety. It is also trite law that the same judicial forum is not vested with the powers to review its own order specially when the issues involved have been discussed therein. Since, the Tribunal vide its order, dated 23-9-2002 has elaborately discussed the issues and has made a considered decision in this behalf, therefore, there is hardly a room or justification on the part of the applicant to seek review of the decision already made by this Tribunal. Resultantly, the present miscellaneous application is not at all maintainable.

14. In the given scenario, the application having been found to be totally bereft of any merits, stands rejected.

H.B.T./316/Tax (Trib.) Application regarded.