A full bench of the Appellate Tribunal Inland Revenue (ATIR) Islamabad has highlighted that Appellate Tribunal Inland Revenue Rules, 2010 have vividly provided separate procedure for filing and hearing of main appeal as well as filing and disposal of stay application.
The full bench of the ATIR comprising Shahid Masood Manzar, Chairman, Muhammad Waseem Ch, Judicial Member, and Dr Muhammad Naeem, Accountant Member, has issued an order in this regard.
The Sub Rule (2) of Rule 32 of Appellate Tribunal Inland Revenue Rules,
2010 clearly spells out that on receipt of stay application for recovery of tax, the registrar of any other officer authorized to act on his behalf shall fix the application for hearing as early as possible. It means that once the stay application is entrusted by the chairperson to any bench, the registrar or any other authorized officer will fix the application for stay of recovery of tax immediately, the full bench of the ATIR concluded.
According to the order of the full bench dated January 15, 2020, by this consolidated order, the Bench has disposed of the questions raised by Division Bench of Tribunal IR vide orders dated 15.11.2019, 19.11.2019 and 20.11.2019 in different cases.
Through the order, the full bench of the ATIR is thankful for the valuable assistance by Former Chairmen Rasheed Ahmed Shaikh, Khalid Waheed Ahmed, Syed Nadeem Saqlain, Javed Iqbal and Nazir Ahmed, and the submissions of amici curiae (friends of the court) Dr Ikramul Haq (ASC), Syed Tauqeer Bukhari (AHC), Shahbaz Butt (ASC), Ayaz Shaukat (ABC), Tahir Razzaq Khan (FCA), Ejaz Rathore (FCA), Eiaz Rathor (FCA) and Riaz Hussain Azam (ASC), departmental representatives and representatives, who appeared in their stay matters.
Facts in brief, which are necessary for understating the controversy, are that stay applications were fixed before the Division Bench; however, the Division Bench instead of adjudicating the same was of the view that since stay applications had been fixed but appeals have not been fixed, therefore, the Bench is not in a position to hear and the applications unless and until the appeals are also fixed before the same bench, Bench explained.
All the discussion leads the full Bench to the conclusion that the legislature has intentionally and purposely used two different words that are appeals and application. Therefore, adjudication of stay application cannot be made conditional to giving jurisdiction of main appeal to the same bench invariably in all cases to expeditiously deciding of stay application usually on the very next day of filing the application(s). Therefore, the stay application for recovery of tax alone can be entrusted to any Bench prior to entrustment of the main appeal. This is also our considered view that-the appeal and the stay application can be entrusted separately before two different benches of the tribunal for hearing and disposal thereof independently, the full bench added.
Background of the issue revealed that the practice as per the ATIR Rules is that whenever miscellaneous applications seeking stay are filed they are fixed as early as possible by the office of the Registrar to the Bench and miscellaneous application along with record of appeals are placed before the Bench for disposal of stay applications. Since due to pendency of a number of cases, appeals are heard or their turn whenever the Tribunal is in position to hear those appeals keeping in view seniority of appeals or urgency or importance of the matter involved therein.
Due to this controversy, the following four (04) questions required authoritative pronouncement:-
(i) Whether without entrustment allocation of main appeal and stay application to the Bench by the Chairperson or any Member authorized by the Chairperson in this behalf, the Bench can hear and decide the appeal or application, as the case may be.
(ii) Whether stay application alone can be entrusted to any Bench prior to entrustment of the main appeal.
(iii) Whether the appeal and stay application can be entrusted separately before two different benches of the tribunal for hearing and disposal thereof independently.
(iv) Whether the Registrar or any other person of the Tribunal has the power to entrust the appeal or application to the Bench.
In order to answer the above questions, a full bench was constituted and keeping in view the importance of the matter amicus curiae were also requested to assist the Full Bench. Moreover expert opinion from legal experts including Ex-Chairmen ATIR was also sought.
After hearing learned counsel for the parties of the above going through the record, the relevant provisions of law as well as the opinions rendered by the Ex-Chairmen/legal experts, full bench is of the view that Section 130 of the Income Tax Ordinance, 2001 deals with appointment of the Appellate Tribunal and as per Sub- section (12) of Section 130 the Appellate Tribunal have the power to regulate its own procedure and procedure of the benches of the Tribunal in all matters arising out the discharge of its functions including the places at which the Benches shall hold their sittings.
It is needless to mention that this power is subject to the Income Tax Ordinance, 2001. The matters pertaining to Sales Tax Section 46 of the Sales Tax Act, 1990 speak of the Appellate Tribunal constituted under Section 130 of the Income Tax Ordinance, 2001 and sub-section (2) of Section 46 of the Sales Tax Act describes that the appellate tribunal may admit, hear and dispose of the appeal as per procedure laid down in sections 131 and 132 of the Income Tax Ordinance, 2001 and rules made thereunder.
There is no dispute regarding the fact that it is the sole prerogative of the Chairperson to entrust, allocate and assign the appeal and applications amongst the benches of the Tribunal and the Chairperson has the power to delegate this power to any Member or authorize any member in this behalf. In case of absence of the Chairperson and Member designated for the purpose, the senior member can transfer an appeal or application from one bench to another bench exercising his power under sub-Rule (2) of Rule 4 of the ATIR Rules, 2010 and the relevant Bench entrusted with the case is supposed to hear and dispose of the appeal or application as the case may be.
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