Income Tax Ordinance, 1984
Section 158 (2)
Payment of 10% of the amount of the difference of tax as determined by the Appellate Joint Commissioner or the Commissioner (Appeals) and the tax payable under section 74, is the mandatory requirement of filing an appeal before the Taxes Appellate Tribunal .
It will be just fair if an order is passed for hearing and disposal of the appeals by the Appellate Tribunal on merit subject to deposit of the prescribed amount in respective appeals, after setting aside the orders passed both by the High Court Division in the Reference Applications and the Taxes Appellate Tribunal in the appeals, on remanding back the appeals to the Taxes Appellate Tribunal for hearing of the appeals afresh and thus ends of justice will be met.… (10)
 
Lawyers involved:
Rafique-Ul Huq, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record- For the Petitioner (In both the cases).  
Mahbubey Alam, Attorney General, (with Mrs. Mahfuza Begum, Assistant Attorney General) instructed by B. Hossain, Advocate-on-Record- For the Respondent (In both the cases)  
 
Civil Petition for Leave to Appeal Nos. 816-17 of 2008.
(From the judgment and order dated 23.01.2008 passed by the High Court Division in Reference Application Nos.120 and 121 of 2000.)
 

Shah Abu Nayeem Mominur Rahman J.
 
These two leave petitions arose out of the common judgment and order dated 23.01.2008 passed by the High Court Division in disposing of the Reference Application Nos. 120 and 121 of 2000. The parties and the issue involved in both the petitions being same those are taken up together for disposal.
 
2. The reference applications under Section 160(1) of the Income Tax Ordinance, 1984 relate to income tax assessments made for the assessment years 1993-94 and 1994-95 in respect of Mr. Matiur Rahman Chowdhury, Editor and Proprietor of Daily Bangla Bazar   Patrika. The Reference Application No.120 of 2000 relates to assessment year 1993-94 and the Reference Application No.121 of 2000 relates to assessment year 1994-95.
 
3. The assessee-petitioner submitted his income tax returns for the assessment years 1993-94 and 1994-95 in due course and being aggrieved by the assessments made by the Deputy Commissioner of Taxes, the assessee-petitioner filed Income Tax Appeals before the Appellate Joint Commissioner of Taxes for both the assessment years and that the assessee-petitioner not being satisfied with the order passed by the Appellate Joint Commissioner of Taxes preferred Income Tax Appeal No.1905 of 1998-99 for the assessment year 1993-94 and Income Tax Appeal No.1906 of 1998-99 for the assessment year 1994-95 both before the Taxes Appellate Tribunal Dhaka, Division Bench-1, under Section 158 of the Income Tax Ordinance 1984. Section 158 of the Income Tax Ordinance 1984 provides for filing appeal before the Appellate Tribunal and Section 158(2) of the Ordinance provides that no appeal shall lie against an order passed by the Appellate Joint Commissioner of Taxes unless the assessee pays the prescribed amount representing the difference between the tax as determined on the basis of the order of the Appellate Joint Commissioner and the tax payable under Section 74 i.e. as assessed by the assessee himself; provided that on an application made by the assessee, the Commissioner of Taxes, may reduce, the requirement of payment of the prescribed amount as required for filing an appeal. The assessee-petitioner in preferring the appeals instead of making the payment as prescribed filed an application for waiver of the payment of the prescribed amount as per proviso to Section 158(2) of the Ordinance.
 
4. In the instant case before disposal of the applications filed for waiver of payment of the prescribed amount as per proviso to section 158(2) of the Ordinance, the Tribunal dismissed both the appeals on the ground of non-payment of the prescribed amount required under Section 158(2) of the Ordinance, observing that no one was present when the matter was taken up and no proof was presented as to waiver of payment of the prescribed amount in terms of Section 158(2) of the Ordinance.
 
5. Being aggrieved the assessee-petitioner moved the High Court Division with the aforementioned reference applications. The High Court Division upon hearing the parties answered the questions raised in the applications, which are:-
 

(a) Whether in the facts and circumstances of the case, the learned Taxes Appellate Tribunal was justified in dismissing the appeal in limine on the ground of non-fulfillment of requirement under Section 158(2) (b) of the Income Tax Ordinance, 1984?
(b) Whether the Bangladesh Taxes Appellate Tribunal was justified in law in not considering the appeal on merit under Bangladesh Taxes Appellate Tribunal rule of 1985?
(c) Whether the Deputy Commissioner of Taxes was justified in adding Tk.5, 00,000-under Section 19(10) of the Income Tax Ordinance, 1984 and the reduction by the Appellate Additional Commissioner of Taxes only on conjecture and surmise without clear finding that the assessee applicant received any amount on account of goodwill?
(d) Whether the Deputy Commissioner of Taxes was justified in estimating sale of papers and the appellate Additional Commissioner of Taxes was justified in confirming the estimate without pinpointing for specific defect?

 
 
6. The High Court Division, as it appears, answered the questions in the affirmative in favour of the Department and against the assesee and hence the leave petitions.
We have perused the leave petitions and heard the learned Advocate appearing for the petitioner in both the leave petitions.
 
We have also heard the learned Attorney General who appeared in the matters on behalf of the respondent.
 
7. The learned Advocate appearing for the leave petitioner submitted that the High Court Division erred in law in not considering that the applications filed by the assessee-petitioner for waiver from payment of prescribed amount as required under Section 158 of the Ordinance were rejected on 04.05.2000 but prior to that date the Tribunal dismissed the appeals by order dated 09.04.2000, on wrong impression that no prayer for waiver has been made by the petitioner in the respective appeals, though in fact the petitioner filed the required applications as per Section 158 of the Ordinance. The learned Advocate submitted that the leave petitioner was and is ready to pay the prescribed amount as per Section 158 of the Ordinance to make the appeals regular and ready for hearing and that under the law the assessee-petitioner was required to make the payment of the prescribed amount as per Section 158(2) of the Ordinance to make the appeal regular and ready for hearing subject to the order to be passed on the application filed for waiver from payment of the prescribed amount i.e. the petitioner was entitled to get a proper opportunity to make the payment of the prescribed amount after his prayer for waiver has been rejected and thereafter if there be any default in payment of the prescribed amount, then only the appeals could be dismissed for default. But the order of dismissal of the appeals being passed prior to the disposal of the applications for waiver in reference, the assessee-petitioner was deprived from the opportunity to make the payment of prescribed amount and for which there was no fault on the part of the assessee-petitioner and that the assessee-petitioner acquired a right to have his appeals heard in accordance with law only after disposal of his applications for waiver in reference and thereby the principle of natural justice has been violated and therefore the impugned orders are bad in law.
 
8. Since it appears that the assessee-petitioner was/is agreeable to pay the prescribed amount as per Section 158 of the Ordinance, the learned Attorney General submitted that the assessee-petitioner was not present before the Tribunal on the date the appeal was dismissed and that the assessee-petitioner ought to have brought the fact of filing of applications for waiver from payment of the prescribed amount to the notice of the Tribunal at the time of filing of the appeals, and thus it appears that the intention of the assessee-petitioner was not bonafide and to delay the disposal of the proceeding and hence the impugned order of dismissal passed by the Tribunal cannot be said  to be  not proper and accordingly the High Court Division also answered the questions  raised in the Reference Applications in accordance with law and those are not liable to be interfered.
 
9. Considering the facts and circumstances of the case and particularly having regard to the fact that the assessee-petitioner filed   the required applications for waiver from payment of the prescribed amount as required under Section 158 at the time of filing of the appeals instead of depositing the prescribed amount as per Section 158(2) of the Ordinance and that the appeals were dismissed for default mainly on the ground of non-payment of prescribed amount vide judgment and order dated 09.04.2000 and as the orders of rejection of the prayer for waiver from payment of the prescribed amount was made on 04.05.2000 i.e. subsequent to the dismissal of the appeals, the assessee-petitioner, as submitted, had no opportunity to make the payment of the prescribed amount as per section 158 of the Ordinance, to regularize the appeals. Thus the order of dismissal of the appeals appears to be pre-mature in as much as the appeals could not be made ready for hearing without having an opportunity on the part of the assessee-petitioner to pay the prescribed amount in reference, in the facts and circumstances of the case, which depended on the result of the prayers made for waiver in reference.
 
10.  In the facts and circumstances of the case instead of granting leave, we are of the view that it will be just and fair if an order is passed for hearing and disposal of the appeals by the Appellate Tribunal on merit subject to deposit of the prescribed amount in the respective appeals, after setting aside the orders passed both by the High Court Division in the Reference Applications and the Taxes Appellate Tribunal in the appeals, on remanding back the appeals to the Taxes Appellate Tribunal for hearing of the appeals afresh and thus ends of justice will be met.
 
11. Accordingly the leave petitions are disposed of without any order as to cost. The orders passed by the High Court Division in Reference Application Nos. 120 and 121 of 2000 arising out of Income Tax Appeal Nos.1905 and 1906 of 1998-99 for the assessment years 1993-94 and 1994-95 respectively are set aside. The Income Tax Tribunal Dhaka, Division Bench-1, is directed to hear and dispose of the Income Tax Appeal Nos.1905 and 1906 of 1998-99 of the assessee-petitioner Motiur Rahman Chowdhury on merit in accordance with law, subject to payment of the prescribed amounts in the appeals in reference, within two months from date, in default the appeals shall stand dismissed and the impugned order of the High Court Division passed in the Reference Applications shall become operative; and accordingly the matters arc remanded back to the Taxes Appellate Tribunal, Division Bench-1, Dhaka, with further direction to dispose of the appeals, if made ready, preferably within six (6) months.

Ed.