KHYBER TEA AND FOOD COMPANY, PESHAWAR Versus COMMISSIONER INLAND REVENUE, (PESHAWAR ZONE), RTO, PESHAWAR

ORDER

DR. SHAH KHAN, MEMBER.--- The above titled miscellaneous application for condonation of delay has been filed by the appellant registered person against the appellate order dated 24.07.2020 passed by Learned Commissioner Inland Revenue, RTO, Peshawar.

2. This Miscellaneous application for Condonation of delay was fixed for hearing on 14.03.2025. On due date, Mr. Muhammad Azam, Advocate/AR appeared on behalf of the appellant registered person and argued his case, while Ms. Saima Ijaz, DR appeared to represent the Tax Department and defended the order passed by learned CIR, RTO, Peshawar.

3. Reiterating the grounds of the Condonation Application, the learned AR of the appellant contended that the impugned order dated 24.07.2020 was against law, norms of justice and fairness due to the following;

(i) The application for refund was late by only 13 days due to circumstances beyond the control of the appellant and denial of justice on technical grounds was against the norms of justice and principle settled by the superior courts.

(ii) The honorable FTO had recommended that delay in decision on the condonation application in filing refund applications tantamounts to maladministration.

(iii) The Commissioner IR while rejecting the application for condonation did not consider the reasons mentioned by the appellant for such inordinate delay.

(iv) The appellant filed the appeal before the ATIR late by 99 days on 29.12.2020 against the order dated 24.07.2020 because the appellant had already filed complaint before the honorable FTO which was decided on 19.11.2020. The appellant was under the wrong impression that the there is no right of appeal against the rejection of the condonation application.

Based on the above, the learned AR pleaded for condoning the delay in filing the appeal late.

4. The learned DR opposed the contention of the learned AR of the appellant and contended that the appeal order dated 24.07.2020 was served upon the appellant on 28.07.2020 and the main appeal of the appellant against the same was filed on 19.11.2020 which was late by 99 days, hence the same is liable for rejection. He further contended that the refund applications were also filed late than the due date of filing the same, hence the main appeal is also liable for rejection. Based on the above, the learned DR pleaded for rejection of the condonation application.

5. We have given our anxious consideration to the arguments of the learned AR and the learned DR and have also gone through the relevant and available record before us besides consulting the related provisions of law. Record shows that the appeal has been filed late by 99 days. Record further shows that against the order dated 24.07.2020, the appellant had field compliant before the FTO which has been decided on 19.11.2020 by way of rejecting the compliant on the basis of lack of jurisdiction of FTO in terms of remedy of appeal to this forum and bar of jurisdiction in terms of section 9(2) of the FTO Ordinance, 2000. Since the appellant had already filed complaint before the honorable FTO which was decided on 19.11.2020, we therefore find force in the contention of the learned AR that the appellant was under the wrong impression that the there is no right of appeal against the rejection of the condonation application. In the circumstances, the delay in fling the appeal late was not without reason. We know plethora of other case laws wherein it has been held that delay in filing of appeal is a technical error, that the prayer for condonation of delay should be considered sympathetically and that the technical ground of delay in filing appeal should not be made to hinder the cause of justice. In a case reported as 2012 PTD 637 (Trib) it was held that:

"6. We are of the firm opinion that by delaying an appeal, the registered person does not stand to gain neither anything nor a delay on his part gives rise to or creates a valuable right in favour of the Revenue-department and the judiciary is respected not on account of its power to legalize injustice under the garb of technicalities, but because, it is capable of removing injustice and the taxpayer, being citizen of Pakistan, has a right under its Constitution to expect so..."

6. In the case of M/s. Ashraf Dawakhana v. Additional Collector Sales Tax reported as GST 2003 CL 601, it was held that:

"In Revenue matters, the prayer for condonation by an assessee/citizen should all the more be considered sympathetically. It is for the reason that the notion of accrual of valuable right to an adversary after the lapse of limitation in ordinary cases of civil nature is not generally applicable to the matters of Revenue. In such cases, since it is always the State against a citizen or assessee, the interest of immediate recovery cannot be described as accrual of a valuable right. In that order, we also expressed the view that the kind of right coming into being by reason of default of a party to approach to particular forum within a specified time is not an absolute right nor does it frustrate exercise of judicial discretion where ever a condonation is provided for in a statute. Further that a tax in any manner being an exaction of money from the subject and its recovery when becoming due un-fettered by any limitation in terms of time, no valuable right could be said to have accrued to the opposite party, the State. Therefore, for the various reasons stated in that order, we will allow this appeal."

7. The same proposition echoes in the judgment of the honorable Lahore High Court reported as 2002 PTD 1035. The honorable superior courts have also settled that when technical and procedural considerations are pitted against rights on substantial conversations, the substantial considerations have to be preferred over technical considerations in order to effectuate the cause of justice. In view of above, we are of the opinion that in the facts and circumstances discussed above, the case of the appellant deserved to be decided on their merits of facts and legal provisions than mere technicalities. We therefore condone the delay in filing the appeal and admit the main appeal for hearing and adjudication on merits.

8. Application for Condonation accepted as above.

9. This order consists of (04) pages and each page bears my signature.

MQ/21/Tax(Trib.) Application allowed.