Mian MUHAMMAD SHARIF VS INCOME TAX APPELLATE TRIBUNAL, LAHORE, 2016 PTD-LAHORE-HIGH-COURT-LAHORE 296 (2015)

2016 P T D 296

[Lahore High Court]

Before Abid Aziz Sheikh and Shahid Karim, JJ

Mian MUHAMMAD SHARIF

Versus

INCOME TAX APPELLATE TRIBUNAL, LAHORE

P.T.R. No.17 of 1996, heard on 06/07/2015.

(a) Limitation---

----Void order---Principle---Limitation runs against void order.

Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 rel.

(b) Words and phrases---

----"Void", "void ab initio", "voidable", "illegal" and "irregular orders"---Distinction---Term 'void order' means when it is made by Court, Tribunal or other authority which had no jurisdiction either as regards the subject matter, pecuniary value or territorial limits---Such an order has been described as amounting to 'usurpation of power unwarranted by law' and accordingly nullity in law---Order made by a court or authority having necessary jurisdiction is not an order void ab initio but an order which may be set aside on sufficient cause being shown in that behalf---Void act must also be distinguished from illegal or irregular act---Void act is an act without jurisdiction and nullity; an illegal or irregular act is an act within jurisdiction and is not void---Court or Tribunal acts illegally when it acts in breach of some law and with material irregularity when it commits some error of procedure in the course of trial.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Abdul Rehman and others v. Ghulam Muhammad through L.Rs. and others 2010 SCMR 978 and Muhammad Raz Khan v. Government of N.W.F.P. PLD 1997 SC 397 rel.

(c) Limitation---

----Question of limitation is a mixed question of law and facts.

Haji Muhammad Shah v. Sher Khan and others PLD 1994 SC 294 rel.

(d) Limitation Act (IX of 1908)---

----S. 5---Condonation of delay---Precondition---Limitation is a mixed question of law and fact and sufficient cause must be beyond the control of a party concerned and nothing has to be deemed to be in good faith which is not done with due care and attention---Such are the standards which have to be borne in mind while dilating upon and adjudicating such issues.

Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 rel.

(e) Limitation Act (IX of 1908)---

----S. 5---Condonation of delay---Principle---Delay of each day has to be explained.

(f) Income Tax Ordinance (XXXI of 1979)---

----S.136(2)---Limitation Act (IX of 1908), S. 5---Void order---Appeal---Condonation of delay---Grievance of assessee was that appeal filed before Income Tax Appellate Tribunal was barred by time and it could not condone delay of one year and two months on the ground of political pressure and influence when such pressure was not proved on file---Validity---Authorities were obliged to have brought necessary evidence on record which could show that one of the directors happened to be Prime Minister of Pakistan at the relevant time, did in fact exert political pressure and prevented filing of appeal timeously---No evidence was lead in such regard by the authorities and the Tribunal also did not refer to any evidence or material which could show and bring home the allegation---Bald assertion or allegation on the part of authorities was not sufficient to accept their plea regarding political pressure---Income Tax Appellate Tribunal should have framed issues to determine the grounds for sufficient cause urged by the department---Law of limitation ran against void order too which like an illegal order was liable to be set aside---Law of limitation had conferred a substantive right and was not a mere technicality to be treated casually---In matters of inordinate delay court should be slow to condone delay as rights had come to vest in the other party---Question of limitation was a mixed question of law and fact and reasons should have been clearly spelt out to seek an entitlement for condonation---If it was needed, evidence should have been led to establish the relevant facts necessary to bring home the plea of condonation---In matters of condonation, government or its departments were not entitled to a different treatment and no preference was due to them---High Court set aside the judgment passed by Income Tax Appellate Tribunal---Reference was allowed in circumstances.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Ghulam Hussain Ramzan Ali v. Collector of Customs (Prventive), Karachi 2015 PTD 107; Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587; Province of Sindh and others v. Ghulam Fareed and others 2014 SCMR 1189; The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others PLD 1975 SC 331; Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329; PLD 1975 BJ 29; Muhammad Ismail v. Abdul Rashid and 2 others 1983 SCMR 168; Bashir Ahmad v. Government of the Punjab 1985 SCMR 333; Col.(Retd.) Ayub Ali Rana v. Dr.Carlite S. Pune and another PLD 2002 SC 630; Income Tax Officer and another v. Messrs Chappal Builders 1993 PTD 1108; Messrs Central Insurance Co. and others v. The Central Board of Revenue, Islamabad and others 1993 PTD 766; (2002) 253 ITR 798 (SC); Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814; 1987 SCMR 1119; Chairman/Secretary, Pakistan Railways, Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javaid Warsi PLD 2003 SC 6 and Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot 2006 SCMR 1248 ref.

Syed Ibrar Hussain Naqvi, A.K. Dogar, Tariq Aziz and Shahid Parvaiz Jami for Petitioner.

Syed Sajjad Haider Rizvi for Respondent.

Date of hearing: 6th July, 2015.

JUDGMENT

SHAHID KARIM, J.---This is an application under section 136(2) of the Income Tax Ordinance, 1979 ('Ordinance') and relates to the assessment year 1988-89.

2.This judgment shall also decide connected reference applications a list of which has been attached with this judgment as Annex-A. Since these reference applications are being decided on a common question of law, it will suffice to refer to the facts in the PTR No.17/1996 and would not be necessary to advert to the facts of each reference application separately.

3.The petitioner is aggrieved of the rejection of the application under section 136(1) of the Ordinance (Assessment year 1988-89) by the respondent No.1 i.e. Income Tax Appellate Tribunal, Lahore ('Tribunal') passed in RA No.267/LB/95 by order dated 24.12.1995. The learned Tribunal declined to forward to this Court the questions of law which in the opinion of the petitioner arose out of the Tribunal's order passed in Appeal No.4535/LB/DB-94(88-89) dated 16.07.1995. The following questions of law were framed for being referred to this Court and on which the opinion of this Court is solicited.

(a)Whether the order of the Tribunal is not sustainable for reasons of being a mala fide order, being due to political pressure and being in disregard of the norms of the legal procedure for enabling the petitioner's lawyer before it to represent the petitioner on the merits of the case?

(b)Whether on the facts and in the circumstances of the case the Tribunal has acted in accordance with law and in the proper and legal exercise of its jurisdiction, in condoning the delay of about 3-1/2 years in the filing of the appeal in the total absence of any plausible material being brought on record and on mere unsustainable allegations?

(c)Whether the Tribunal was right in law in the holding that the order of the CIT(Appeals) was a void order against which no limitation ran and whether there was material for the Tribunal to hold so?

(d)Whether on the facts and in the circumstances of the case the restoration by the Tribunal was not right in law of the order of the Assessing Authority with regard to the following additions to the petitioner's income;

(i)	Income under section 30 read with Section 2(20)e	Rs.2116572/-
(ii)	Income under section 16 read with Rule 15(1) of the Income Tax Rules	Rs.113522/-
(iii)	Against Income under section 30 read with Sec.13 (1)e	Rs.50000/-
(iv)	Income under section 13(1)(c)	Rs.2116572/-

In so far as the said deposits were neither loans nor advances to the petitioner nor any amount with the terms of section 2(20)e of the Ordinance or the other provisions of law cited.

(e)Whether the addition of Rs.50,000/- under section 13(1)(e) of the Ordinance to the petitioner's income was against law in so far as the requirements of section 13(1)(e) had not been complied with?

(f)Whether in view of the fact of the deposits and the consequent accretion in wealth having been accepted and also its source as being from sale of land, the question of the passing of the title to the buyer was of any relevance for determining whether the deposit came within the purview of section 2(20)(e) of the Ordinance or not?

(g)Whether there was any material before the Assessing Authority and the Tribunal for holding that the deposits in question came under the purview of section 2(20)(e)?

(h)Whether the passing of consideration through entries in a running account in books of accounts was legally effectual in respect of the sales of shares in favour of the assessee and of the sale of land in favour of the Company? If so, whether the transaction resulted in a loan or advance to the assessee within the meaning of section 2(20)(e) of the Ordinance?

(i)Whether the Tribunal was right in law in upholding the addition of Rs.113822/- under section 16 read with rule 15(1) of the Income Tax Rules?

(j)Whether the addition of Rs.2500000/- under section 13(1)(c) was in accordance with law after due fulfillment of the requirements of section 13(1)(c) and whether the Tribunal was right in upholding the addition as such?

(k)Whether the ITO was empowered to write out a new account book for the assessee which he has done in this case and whether the assessment based on such modification by the ITO in the account books is bad in law and fit to be annulled?

4.This reference application was admitted to regular hearing on 09.06.1996. We have invited the learned counsel for the parties to address the arguments on the questions of law framed at (a), (b) and (c) which relate to the baseline question regarding the limitation viz. whether the Tribunal was justified in condoning the delay in filing of the appeals before it and as to whether sufficient cause on which the said order was based was within the term as defined and expounded by the superior courts.

HISTORICAL BACKGROUND

5.A synoptical resumption of the facts of PTR No.17/1996 is that the petitioner/assessee was a Director in several limited companies and in the year 1988-89 the assessee returned total income of Rs.936311/- (the original petitioner has since died and is being represented by his legal heirs). The returned income was made up of salary Rs.183600/-, share firm Rs.638/- dividends Rs.955000/-, Agricultural income Rs.40000/-. After deduction of zakat and taxes (Rs.242915/-) the net income was arrived at Rs.936311/-. The assessment was completed with regard to the assesssee under section 62 of the Ordinance on 26.09.1989 at a total income of Rs.5666705/- It is the case of the petitioner/assessee that the assessee's income was arrived at after making certain additions. It would not be necessary to refer to the intricacies of the income tax return filed by the petitioner/assessee. Suffice to say that a notice was issued to the petitioner/assessee in which the petitioner was called upon to explain certain items in the credit entry in the books of M/s Ittefaq Foundries Limited with regard to the purchase of share of assessee by M/s Ittefaq Sugar Mills ('the company') from the company. Also the Income Tax Officer ('ITO') did not accept the fact as shown in the account and these initial debits were balanced by subsequent credits on account of sale of land to the company by the assessee. In the opinion of the ITO there was in fact no sale of land. The reasons which weighed with the ITO was that the sale was effected by a simple agreement of sale and irrevocable power of attorney in favour of the assessee. In the opinion of the ITO since the provisions of section 54 of the Transfer of Property Act, 1882 ('TPA') had not been complied with and the sale was not evidenced by the execution of the sale deed duly stamped and registered, title of the immoveable property did not pass on to the purchaser. After prolonged and protracted inquiry the assessment was framed on 26.09.1999 and certain additions were made by the assessing officer.

6.The petitioner/assessee feeling aggrieved by the order of the ITO filed an appeal to the Commissioner of Income Tax (Appeals) ('CIT(A)') who decided the appeal on 13.06.1991 and deleted the additions made. (It is pertinent to mention here that in almost all of these references being decided by this judgment, the date of order is 13.06.1991 with slight variations of one or two days.

7.The order of the CIT(A) was served upon the department on 31.07.1991. This fact is not denied by the respondent department. The limitation for filing second appeal before Tribunal is 60-days which expired on 30.09.1991. Once again, this fact is not disputed by both the sides. The department filed an appeal before the Tribunal on 19.12.1994 i.e. almost 3-1/2 years after the service of the notices of the order of the CIT(A) on 31.07.1991. The Tribunal by the impugned judgment condoned the delay and proceeded to hear the matter on merits and vide impugned judgment dated 16.07.1995 accepted the appeals filed by the respondent department and set aside the judgment of the CIT(A).

8.As stated above, we have required the learned counsel for the parties to confine their arguments to the question whether the Tribunal was within its jurisdiction to condone the delay in filing of the appeal before it, on the grounds which have been mentioned in the impugned order. There are two grounds which formed the basis for condonation of delay by the Tribunal; firstly, it was held by the Tribunal that since the order of the CIT(A) was a void order, therefore, no limitation would run against such a void order and thus the question of limitation being a bar would not arise. Secondly, the Tribunal considered the reasons put-forth by the respondent department in support of the condonation of delay in filing of the appeals and returned the findings that those reasons constituted sufficient cause to condone the delay. We shall take up these two issues separately and are dealt with in seriatim as follows:

LIMITATION AGAINST VOID ORDER

9.The findings of the Tribunal on this aspect are reproduced as under:--

"On appreciation of the facts and the law referred by the parties, we find that order of CIT(Appeals) dated 13.6.1991 suffers from several infirmities on the legal plane. The learned CIT(Appeals) has failed to even consider the basic principle of the transfer of title of the property as envisaged in Section 54 of the Transfer of Property Act (IV of 1882). Then he has gone astray in seeking support from Section 53A of the ibid which is not at all applicable to the question involved in this case. The judgments referred by the learned counsel for the department makes us to lean towards the conclusion that the order being void and no period of limitation is to run in its way. Justice is not only to be done but appears to have been done and in this case the conduct of CIT (Appeals) reflects and makes us to disbelieve that he has applied his mind in passing the order. It is humanly impossible to pass orders in number of appeals in one day when peculiar facts/circumstances and question of law are involved. We have examined the order sheet which records the following:

9.6.1991----Hearing with AR. Case discussed. 13.6.1991---Discussed with ITO. For orders.

The order was also passed on 13.6.1991.

The above order sheet further reflects that hearing of both parties or their attendance on 9.6.1991 and 13.6.1991 was not made in the presence of each other. The CIT (Appeals) lastly proceeded to pass order and proper.

The conclusion inevitably is that CIT (appeals) not only proceeded against law but also appears to have passed a dictatorial judgment and we cannot resist to observe that neither proper hearing was provided to the appellant nor mind was applied. It is settled procedure to make hearing of the case in the presence of both the parties or their Counsel so as to avail the opportunity to rebut the arguments of each other to support their respective pleas.

In this count, we can safely infer that though the impugned orders were passed on different dates but Seventeen (17) orders were verbatim and ditto copies of each other and nothing but a fraud on the statue under which CIT (Appeals) purports to have acted.

In view of above we hold that the impugned order of the CIT (Appeals) is void and a nullity to have been passed mala fide and no limitation is to run against such an order.

10.It will be seen that the basis for holding that the order of the CIT(A) is void was that the order ran counter to the basic principle of transfer of title of property as envisaged in section 54 of the TPA. Also that CIT(A) had wrongly relied upon section 53-A of the TPA which was not applicable to the facts of the case but the primary consideration for the Tribunal was that there was no limitation against a void order and therefore, the question of limitation was not relevant. Whether the judgment of the CIT(A) was void on any account is for the present purposes a secondary question. The primary question is whether the Tribunal was correct in laying down as a proposition of law that no limitation would run against a void order. The answer to this question would render the question regarding the judgment of the CIT(A) being void or not, redundant. In this regard, the learned counsel for the parties have called to their aid recent judgments of the Supreme Court of Pakistan. These judgements express a divergence of opinion on the subject. However, before we proceed to consider those judgments, the general observations of the Supreme Court of Pakistan with regard to law of limitation and its true nature may usefully be referred to. In Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212) the Supreme Court of Pakistan had this to say regarding the law of limitation:--

" Any how before proceeding further qua this proposition, we find it expedient to briefly touch upon the nature, the object and the significance of the law of limitation. From the various dicta/pronouncements of the superior court, it can be deduced without any fear of contradiction that such law is founded upon public policy and State interest. This law is vital for any orderly and organized society and the people at large, who believe in being governed by systemized law. The obvious object of the law is that if no time constraints and limits are prescribed or pursuing a cause of action and for seeking reliefs/remedies relating to such cause of action, and a person is allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall adversely affect the disciplined and structured judicial process and mechanism of the State, which is sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law. The object of the law of limitation and the law itself, prescribing time constrains for each cause or case or for seeking any relief or remedy has been examined by the courts in many a cases, and it has been held to be a valid piece of legislation, and law of the land. It is "The Law" which should be strictly construed and applied in its letter and spirit; and by no stretch of legal interpretation it can be held that such law (i.e. limitation law) is merely a technicality and that too of procedural in nature. Rather from the mandate of section 3 of the Limitation Act, it is obligatory upon the court to dismiss a cause/lis which is barred by time even though limitation has not been set out as a defence. And this shows that imperative adherence to and the mandatory application of such law by the courts. The said law is considered prescriptive and preventive in nature and is held to mean and serve as a major deterrent against the factors and the elements which would affect peace, tranquility and due order of the State and society. The law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of brining forth a legal action at his own whim and desire. Because if that is so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the society as a whole. This is not permissible in a State which is governed by law and Constitution. And it may be relevant to mention here that the law providing for limitation for various causes/reliefs is not a matter of mere technicality but foundationally of the 'LAW' itself. In the above context a judgment of this Court reported as Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446) has thrown considerable light on the subject and has provided guidance, in the following words:--

"We may add that public interest require that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affair. Statues of limitation and prescription are, thus status of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence."

11.It is evident from reading of the paragraph reproduced above, that the Supreme Court of Pakistan has laid great emphasis on the importance and applicability of law of limitation as also that the said law confers a substantive right and is not merely a technicality to be brushed aside. Now we can advert to the question whether the limitation would run against a void order or not. This issue should not engage our attention for long and should receive a short shrift. But, firstly, a reference to the case law cited by the parties. The learned counsel for the petitioners relied upon Ghulam Hussain Ramzan Ali v. Collector of Customs (Prventive), Karachi (2015 PTD 107). It was held by the Supreme Court of Pakistan as under:--

" . It is now a well settled law that there is distinction between a void order and a voidable order and it has been held by this Court that party could not sleep over to challenge a void order and it was bound to challenge the same within the stipulated/prescribed time period of limitation from the date of knowledge before the proper forum in appropriate proceedings. In this connection reference may be made from the judgment of this Court reported as "Messrs Blue Star Spinning Mills Limited v. Collector of Sales Tax and others (2013 SCMR 587)" wherein this Court held as under:--

"The Court specifically adverted to the arguments raised by the petitioner's that no limitation runs against a void order and held that this is not an inflexible rule; that a party cannot sleep over to challenge such an order and that it is bound to do so within the stipulated/prescribed period of limitation from the date of knowledge before the proper forum in appropriate proceedings. This is in line with the law laid down by this Court in Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) wherein it is observed that "direct proceedings for having a decision invalidated or set aside may be either by way of appeal, revision or review, initiated by the affected party, in accordance with the relevant law; or they may take the form of suo motu recall of the order by the Court or authority which made it or, lastly action to be taken by way of a regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order. "Similarly in Muhammad Raz Khan v. Government of N.W.F.P. (PLD 1997 SC 397) at page 400 this view was reiterated in terms as follows:--

"We earnestly feel that unless certain constraints apply against right of challenging void order specially relatable period of knowledge, the same may create complication leading to dangerous results. Principle of justice and fair play does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber. Therefore, according to our considered opinion, facility regarding extension of time for challenging order cannot be legitimately stretched to any length of unreason period at the whims, choices or sweet will of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a period presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge alleged void order; which too must be independently established on sound basis. In this behalf we derive strength from the observations contained in PLD 1975 Baghdad-ul-Jadid 29 (Syed Sajid Ali v. Sayed Wajid Ali) and 1978 SCMR 367 (S.Sharif Ahmad Hashmi v. Chairman Screening Committee)."

12.In the cited judgment a reference has been made to the earlier judgment of the Supreme Court of Pakistan reported as Messrs Blue Star Spinning Mills Limited v. Collector of Sales Tax and others (2013 SCMR 587) and reliance was squarely placed upon the said judgment. It would be noticed that two other judgments of the Supreme Court of Pakistan have been referred to in the cited precedents. The observation of the Supreme Court of Pakistan made in Muhammad Raz Khan v. Government of NWFP (PLD 1997 SC 397) in fact encapsulated the true spirit of the law relating to the limitation viz-a-viz void order. The only facility and concession which has been extended to a person with regard to a void order is that at best it can be assailed by computing the period of limitation i.e. when a person factually came to know about the said order. Also that when a person presumes that an adverse order is a nullity or void, and ignores it beyond the period specified by law of limitation, then he does so at his own risk. It was held that terminus a quo will have to be fixed which would be the date of knowledge when the alleged void order came to the knowledge of the person. Finally, that the date and knowledge must be independently established on sufficient basis.

13.The learned counsel for the respondent has relied upon a cluster of case law and precedents from the Pakistani as well as Indian jurisdiction. We shall now proceed to deal with the judgments on which the learned counsel for the respondent relies upon. The learned counsel makes a reference to the separate note written by Ejaz Afzal Khan, J. in Dr. Muhammad Javaid Shafi (PLD 2015 SC 212) Supra. Suffice to say that the said judgment was a dissent and the majority judgment took a different view of the issue relating to the limitation. Therefore, it is not relevant to refer to the said judgment cited by the learned counsel for the respondent. However, while writing the dissent the Hon'ble Member of the Bench relied upon certain judgments of the Supreme Court of Pakistan which drew a distinction between the void and voidable order. We will refer some of those judgments in the proceeding paragraphs.

14.The learned counsel for the respondent next relied upon Province of Sindh and others v. Ghulam Fareed and others (2014 SCMR 1189) and the following observations of the Supreme Court of Pakistan in particular:--

"10. We have also examined the view taken by this Court in the case of Furqan Habib relied upon by the learned Law Officer, which judgment is distinguishable on facts. In the first place, section 6-A of the Sindh Service Tribunal Act, 1973 permits the application of the provisions of sections 5 and 14 of the Limitation Act to the appeals preferred before the Sindh Service Tribunal. Secondly in case of Furqan Habib the original order challenged before the Tribunal was neither a void order nor an order without jurisdiction, therefore, the bar of limitation was applicable in such cases where in the case in hand as noticed in the preceding para the termination orders having been issued by an officer nor competent in law, therefore, such orders being void, would not attract the bar of limitation."

15.In the cited judgment the Supreme Court of Pakistan proceeded to condone the delay on the basis of section 5 and section 14 of the Limitation Act. Moreover, the view taken in the judgment is in contra distinction to the view taken in the subsequent judgment of Ghulam Hussain Ramzan Ali's case (2015 PTD 107) Supra.

16.The dissension and divergence of opinion between different benches of the Supreme Court of Pakistan has been laid to rest by a fourteen member bench of the Supreme Court of Pakistan in a case reported as Gen.(R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585). It has emphatically been laid down by the Supreme Court of Pakistan that limitation runs against void orders, too, and did not endorse the view that void orders are free from the shackles of law of limitation. It was held that:--

"The contention that the delay be condoned since the petitioner was not heard or that the judgment on that count is void ab initio and that no limitation runs against a void order is not tenable because even against a void order, limitation would run and would be computed from the date of knowledge. In Muhammad Raz Khan v. Government of N.W.F.P. (PLD 1997 SC 397), this Court specifically adverted to the question whether a party can be extended indulgence which pleads that the order was not challenged in time as it was void.

In Messrs Blue Star Spinning Mills v. Collector of Sales Tax (2013 SCMR 587), this Court clearly held that the rule that no limitation runs against a void order is not an inflexible rule that a party cannot sleep over to challenge such an order; that it is bound to do so within the stipulated/prescribed period of limitation from the date of knowledge before the appropriate forum. It has never been petitioner's plea that he did not have the knowledge of the impugned judgment. Even otherwise it has been admitted by petitioner's learned counsel that one Maulvi Iqbal Haider had filed a constitution petition bearing No.454 of 2010 wherein he had sought trial of the petitioner in view of the judgment of this Court in Sindh High Court Bar Supra. But the said petition was disposed of with a direction that the petitioner should approach this Court. Maulvi Iqbal Haider thereafter filed Civil Petition No.2255 of 2010 before this Court. It remained pending for 2-1/2 years and no order was passed for trial of the petitioner and eventually on 03.07.2013 a Bench of three Judges disposed of the petition whereafter Special Tribunal was constituted to try the petitioner. For two to three years, the question of petitioner's trial in the light of the judgment of this Court in Sindh High Court Bar Supra remained pending either before the High Court of Sindh or before this Court but petitioner never filed any application for review of the judgment. This conduct is reflective of an element of contumacy which does not warrant indulgence in review jurisdiction.

The reliance of learned counsel for the petitioner on two judgments of this Court wherein limitation of many years was condoned would be of no avail as the facts and circumstances of those cases are distinct. In Federation of Pakistan, v. Mian Muhammad Nawaz Sharif (PLD 2009 SC 644), petitioner Muhammad Nawaz Sharif had sought review of a three member judgment of this Court whereby he was disqualified to contest the elections without hearing him. While condoning the delay in filing the review petitions, the Court had taken note of the circumstances under which initially the said review petitioner was restrained from returning to this country and thereafter on account of removal of Judges of the Supreme Court and High Courts pursuant to imposition of State of Emergency 2007, he and those of his party men who were contesting General Elections of 2008 had made a public Oath that they would not appear before the Supreme Court till the lawful judiciary was restored."

We are bound by the larger bench judgment of the Supreme Court of Pakistan as the laying down the law, on the issue in hand.

17.It is common ground and is admitted on all hands that the order passed by CIT(A)was conveyed to the department on 31.07.1991. Thus the limitation for filing of the appeal expired on 30.09.1991. The department cannot now turn around and be heard to say that the impugned order of the CIT(A) was void and nullity and therefore no limitation would run against such an order. On the basis of law which has been declared by the Supreme Court of Pakistan with regard to void orders we have no hesitation in coming to the conclusion that the limitation would run against void orders too and the Tribunal was not justified in condoning the delay on account of the fact that since the order of the CIT(A) was void, no Limitation would run against it. The department was under obligation to file an appeal within the period of limitation prescribed irrespective of allegation of voidness regarding the order of CIT(A). In view of our holding that the limitation runs against a void order it will not be necessary to go into the question whether the order of the CIT(A) in fact was void or not.

18.While, we are on the subject we may refer to the exposition of the concept of void and voidable order by the superior courts of Pakistan and on which concept the Tribunal had proceeded to hold that the order of the CIT(A) dated 12.07.1991 was void and thus no limitation would run against the said order. Suffice to refer to two judgments of the Supreme Court of Pakistan which have brought out the distinction between void and voidable orders. In The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others (PLD 1975 SC 331) the distinction was brought-forth in the following words:--

"The first question which arises in this connection is whether an order obtained by practicing fraud on the Court, tribunal or authority concerned is a void order or only voidable. We are in respectful agreement with the view expressed by Waheeduddin Ahmed, J., in the case of Ali Iqtidar Shah Dara, that an order obtained by fraud is not void, but only voidable. It remains operative as long as it is not set aside, rescinded, or recalled, by a competent authority in proper proceedings. An order is to be treated as void only when it is made by a Court, tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such an order would amount to "a usurpation of power unwarranted by law", and accordingly it would be a nullity.

If, on the other hand, an order is made by a Court or authority having the necessary jurisdiction, it is not an order void ab initio, but an order which may be set aside on sufficient cause being shown in this behalf. While it is true, as has been so often stated that fraud vitiates all proceedings, it must nevertheless, be borne in mind that allegations of fraud generally raise mixed questions of law and fact which can only be established in an elaborate inquiry. It is for this reason that an order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by it. As authority for this view, reference may be made to Dabendra Nath Dutt v. Administrator-General of Bengal (1), Hewson v. Shelley. (2). Fazluddin v. Khetra Ghoria (3), Ambikamoni Dasi v. Khettra Ghosia (4), Mst. Siraj Fatima v. Mahmood Ali (5), Bishunath Towari v. Mst. Mirchi (6), Ahmed Khan v. Custodian of Evacuee Property (7) and Pakistan v. R.S Roopchand (8).

If an order obtained by fraud is voidable, the question then is in what kind of proceedings can it be set aside or avoided. As stated by Robinstein in 'Jurisdiction and Illegality', the validity of a decision or order can be challenged either directly by way of proceedings specially designed by law for the purpose of having such a decision set aside, reversed or modified; or by way of collateral attack in which the court is not asked to invalidate the disputed decision but in which the existence of this decision is relevant to the issue facing the Court. In such collateral impeachment the contention generally is that the impugned decision is a nullity in the eye of law and can be disregarded by the Court before which it is sought to be relied upon by one party or the other.

Direct proceedings for having a decision invalidated or set aside may be either by way of appeal, revision or review, initiated by the affected party, in accordance with the relevant law; or they may take the form of suo motu recall of the order by the Court or authority which made it; or lastly, action may be taken by way of a regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order. There can be no difficulty in the way of the adoption of the first course when the same is permitted by the law applicable to the subject-matter of the dispute and the parties thereto; nor can there be any controversy regarding the maintainability of a civil suit, for the same is clearly permitted under section 9 of the Code of Civil Procedure, which confers a general jurisdiction on civil Courts created and recognized by the code. However, there appears to be a conflict of judicial opinion on the question whether an order obtained by fraud can be suo motu recalled or rescinded by the Court or authority which made it in the first instance."

19.This statement of law was based upon an earlier five Members Bench judgment of the Supreme Court of Pakistan reported as Muhammad Akbar Shah v. Muhammad Yusuf Shah and others (PLD 1964 SC 329) wherein the following observations are relevant for our purposes:--

"We turn now to the question of limitation. The suit before us is one for possession and prima facie should be governed by Article 142 or 144. It is a settled principle however, that when the relief which a plaintiff seeks cannot be granted unless he succeeds in securing as a foundation for his relief another relief the suit cannot be filed after the expiry of the limitation for a suit for such other relief. If this principle were not adopted the provisions of the Limitation Act would be defeated. If in order to obtain the relief of possession in this case it be essential for the plaintiff to secure a decree for setting aside the will before he is granted possession then the suit would be governed by the, Article which applies to a suit for setting aside the will. The suggestion therefore is, whether it is essential for the plaintiff to secure a decree for setting aside the will. The principle which is applicable cannot be disputed either on authority or in reason. The principle is that if the transaction which is sought to be set aside was a voidable one, it is essential that the transaction be set aside. If it be not voidable, but void, the question of setting it aside would not arise, As to whether a transaction is voidable or void there is a simple criterion; did the transaction create any legal effects, that is, did the transaction transfer, create or terminate or otherwise affect any rights? In a void transaction no legal effects are produced. In a voidable transaction legal effects are produced but some person has the right to avoid the transaction and if he exercises that option the process by which rights were affected is reversed and the original situation as it existed before the transaction is restored (subject to adjustment of equities). If the Court which is dealing with the question of limitation reaches the conclusion after considering the evidence before it that the transaction in dispute by its own force produced legal effects if would be necessary that the transaction be set aside and limitation will be governed by the Article applicable to the setting aside of the transaction. If it comes to the conclusion that by itself the transaction produced no effects no need for setting it aside will arise. It is necessary to state here that a voidable transaction should not be confused with a transaction which prima facie looks valid and in relation to which the burden of proof will be on the party alleging its invalidity. There may be a document in existence a registered deed of sale or mortgage or some other transaction, which is by presumption genuine and the person who purports to be its executant may have the burden on him to show that it is a forgery. Still it is not a voidable transaction because ultimately when the Court comes to the conclusion that it is a forgery it will be found that in fact the document never affected any right. That is the criterion for determining whether a document is void or voidable. Its apparent validity or the question of burden of proof is in this respect irrelevant. No person is bound to sue for setting aside a document just because it is raising a presumption against him. There is no need for the person who is shown to be the executant of the forged document to sue for its cancellation or for setting it aside though he may be taking a risk in allowing the document stand for proof of forgery may become difficult as time passes. A transaction which is not genuine may have been incorporated even in the revenue records which have a presumption of correctness. Still there is no need to have the transaction set aside for revenue records are only evidence of it and do not affect title. If the Court finds that there is no true basis for the entry in the record-of-rights its conclusion would be that there never did exist any transaction which affected any rights. "Setting aside" is wholly inappropriate for a document which has produced no legal effects though the expression is sometimes loosely used in respect of a declaration of invalidity of a document."

While illustrating the examples of voidable transactions, their lordships observed as under:--

"Examples of voidable transactions are a contract made under coercion or undue influence or even fraud, a compromise of a case by guardian of a minor without permission of the Court and an alienation of ancestral property by a holder of such property under custom. All these transactions are good and valid and they do affect rights, but a person has the option to have undone what the transaction has done."

20.The proposition of law laid down in the judgments referred to above has since been followed by the Supreme Court of Pakistan in later judgments reported as Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245), Abdul Rehman and others v. Ghulam Muhammad through L.Rs. and others (2010 SCMR 978) and Muhammad Raz Khan v. Government of N.W.F.P. (PLD 1997 SC 397). However, a common thread which runs through these judgments is the construction put on the term 'void order' only to mean when it is made by a Court, Tribunal or other authority which had no jurisdiction either as regards the subject matter, pecuniary value or territorial limits. Such an order has been described as amounting to "usurpation of power unwarranted by law" and accordingly, nullity in law. In the same vein, it has been laid down in the said judgments that an order made by a Court or authority having necessary jurisdiction is not an order void ab initio but an order which may be set aside on sufficient cause being shown in this behalf. A void act must also be distinguished from illegal or irregular act. As seen above, a void act is an act without jurisdiction and a nullity; an illegal or irregular act, on the other hand, is an act within jurisdiction and is not void. A Court or tribunal acts illegally when it acts in breach of some law and with material irregularity when it commits some error of procedure in the course of trial. On the touchstone of the criteria laid down by the superior courts and the distinction drawn with regard to the void and voidable orders, we may now proceed to determine whether the order of the CIT(A) was a void order as held by the Tribunal or not.

21.The CIT(A) in its judgment had held the transaction made with regard to the agreement to sell to be a valid transaction and thus the CIT(A) proceeded to delete the additions made by the ITO. The ITO on the other hand had rejected the transaction whereby the sale of 452-Kanals 13-Marlas had been made by 17-Directors of M/s Ittefaq Foundries Limited to the company vide a registered agreement to sell dated 25.06.1988 to be an incomplete transaction as it was in contravention of section 54 of the TPA and therefore did not confer any right. The CIT(A) held the transaction to be a valid transaction on the basis of section 53-A of the TPA which according to the CIT(A) was available to the assessee.

22.Syed Ibrar Hussain Naqvi, Advocate/learned counsel for the petitioner has made a frontal attack on this aspect of the matter. He argued that the agreement to sell was a registered document and was followed by a power of attorney, a registered document too and also that consideration had been paid to the company which was also not disputed and thus the sale had effectively taken place for all intents and purposes. It is evident, therefore, that the question was regarding the true construction of the document of title and as to whether the transaction evidenced by agreement to sell was a proper and valid document of transfer of title or not and whether it could validly be used by the assessee for the purpose of claiming the benefit under the Ordinance, 1979. The ITO and the CIT(A) had divergent views on the interpretation of sections 54 and 53-A of the TPA. It is evident therefore that by no stretch of imagination was the issue within the definition of a void order as settled by the superior courts and referred to above. It was nobody's case that the CIT(A) had no jurisdiction either as regard the subject matter, the pecuniary value or the territorial limit. If this argument were accepted, then it would follow indubitably that on the same analogy, the order passed by the ITO could also be termed as a void order for the ITO had simply interpreted the provision of law in a certain manner. Therefore, on the standard and the criteria which have been laid down by the superior courts for an order to be declared as void order, the Tribunal committed an error of law by holding that the order of the CIT(A) was a void order. It was, at worst, an illegal or irregular order but not a void order.

SUFFICIENT CAUSE

23.The second question which found favour with the Tribunal in condoning the delay in filing of the appeal was that there was 'sufficient cause' for the delay in filing of the appeal by the respondent department. In this regard, the findings were returned in the following terms by the Tribunal:--

"The learned counsel for the appellant though sticking to his contention as to the order being void and no limitation is to run against such an order, has also contended that there are sufficient grounds for condonation of the delay. It is submitted by him that the department was prevented to file the appeals within the time of limitation on account of political influence as one of the directors of the Ittefaq Group was Chief Executive of the Country at the relevant time.

To substantiate his point the following details were referred to:

(a)Date of decision of appeals 2.7.91

(b)Date of communication 31.7.91

(c)Due date for filing appeal 24.9.91

However, the appeals were filed on 18/19.12.1994.

It is further contended by the Counsel for the appellant that Mian Muhammad Nawaz Sharif was the Chief Minister of Punjab and then he assumed office of the Prime Minister. The assemblies were dissolved by the President of Pakistan on 18.04.93. Interim Government was constituted headed by Balkh Sher Mezari. The assemblies were restored by a judgment dated 26.05.93 passed by the Honourable Supreme Court of Pakistan. Later on Mian Nawaz Sharif resigned on 18.7.1993. Thereafter the care-taker Government headed by Mr. Moeen Qureshi was formed who remained in office and conducted the country wide elections held on 7.10.1993 then the present Government assumed the office on 20.10.1993.

It is further argued by the learned Counsel of the appellant that the department was made conscious of deliberate defalcation in filing the appeal on routine examination and detailed scrutiny of such like cases and obviously it was so done, without any loss of time. The culpable negligence exclusively of the functionaries of the department is not involved rather they were compelled to avoid norms of justice and law on account of political influence.

It has already been held by us that the impugned orders are void, nullity and mala fide and as such no limitation is to run but for condonation of the delay a vice must be clearly established which infest the whole proceedings. There must be an illegality as opposed to an irregularity. The very basis of the appellate order particularly holding the sale of the property in utter disregard to the statutory provisions is itself a fraud on the statue. The position being so is sufficient to condone the delay in filing the appeals. It is established principle of law that legitimate forum has a discretion to exercise in condoning the delay and as such we are not hesitant to say that functionaries of the department were paralysed on account of political influence to have their free exercise of powers or to give a judicious thought to the issues involved in the appeals. Therefore we hold that there are sufficient grounds for condonation of delay. As such we exercise our discretion to condone the delay."

24.It would be seen from reading of the portion of the impugned order reproduced above that the primary consideration for condoning the delay in filing of the appeal was political pressure to have been brought to bear on the department in not filing the appeal on time. Before dealing with this issue we shall refer to the grounds which were taken by the respondent department in its application under section 134(4) of the Ordinance seeking condonation of delay. The following grounds were urged in support of the application.

"(a)That the second appeal could not be filed by the department due to the influence exercised by the then Prime Minister Mian Nawaz Sharif and the machinations of his supporters in the department.

(b)That the appellate order passed by the Commissioner of Income Tax (Appeals) on 31.07.91 was a void order, having been passed under the political pressure and without appreciation of the facts and circumstances of the case.

(c)That after the change in the Government and the perusal of the record and scrutiny of the liability of all the business-men of Pakistan, it transpired that the respondents in the manner stated above fraudulently and in collusion with the departmental officials by exercising political and undue influence had successfully maneuvered to escape the liability. In the revelation of these facts the present appeal is being filed. Since it is continuing wrong and the order impugned is based upon fraud and mala fide, hence it stands vitiated in the eyes of law.

(d)That since the department was prevented from filing of second appeal before this Honourable Tribunal due to political pressure, the delay in filing of the subject appeal, if any, may kindly be condoned, though there is no limitation against a void order."

25.For facility section 134(4) of the Ordinance is also produced as under which empowers the Tribunal to condone the delay upon sufficient cause:--

"The Appellant Tribunal may, admit an appeal after the expiration of the period specified in subsection (3) if it is satisfied that the appellant was prevented by sufficient cause from presenting it within that period."

26.We have, as a prefatory, referred to the views of the Supreme Court of Pakistan regarding the law of limitation. It has been held that the law of limitation confers a substantive right and must be balanced with other rights which come to vest in a person. It is thus a valuable legal right in favour of a person who urges a cause to be barred by limitation. However, It is equally settled by a long line of judgments that the question of limitation is a mixed question of law and facts Haji Muhammad Shah v. Sher Khan and others (PLD 1994 SC 294). So far as interpretation of the term 'sufficient cause' which has been used in section 5 of the Limitation Act and is also the term used in section 134(4) of the Ordinance the true meaning of the term is encapsulated in the following observations of the Supreme Court of Pakistan made in Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 SC 355).

"20. The principles laid down in Abdul Ghani's case have been followed in other above-referred cases. It has been held that sufficient cause means "circumstances beyond control of party concerned" and that nothing shall be deemed to be done in good faith, which is not done with due care and attention. In case of Haji Abdul Wahid, it was held that what was sufficient cause it would differ from case to case and further it was held that any action taken on advice by the counsel against a clear provision of law would not entitle the party to seek condonation of delay on the ground that he acted bona fide on such advice."

27.In the peculiar context of the present case, we will deal with the question whether there was sufficient cause for condonation of delay. For the purpose the Tribunal had to consider the twin conditions which comprise the jurisdictional facts laid down by the superior courts with regard to the determination of similar issues. Firstly, that the question is a mixed question of law and fact and secondly, that sufficient cause must be beyond the control of a party concerned and that nothing shall be deemed to be done in good faith which is not done with due care and attention. These are the standards which have to be borne in mind while dilating upon and adjudicating such issues. Having gone through the impugned judgment of the Tribunal, we find that the Tribunal has been woefully lacking in the determination of this question upon the criteria laid down by the superior courts.

28.The single most important reason which prevailed with the Tribunal was that the appeal was not filed on time on account of political pressure which was influenced by one of the Directors of M/s Ittefaq Foundries Ltd. who happened to be the Prime Minister of Pakistan. In this regard, the following facts have been urged to substantiate the allegation.

"It is submitted by the respondent department that at the time of passing of the impugned judgment by the CIT(A), Nawaz Sharif, Director of M/s Ittefaq Foundries was Prime Minister of Pakistan. The assemblies were dissolved by the President of Pakistan on 18.04.1993 and interim government was established; The assemblies were restored by the judgment of the Supreme Court of Pakistan on 26.05.1993 but since thereafter on 18.07.1993 Nawaz Sharif, resigns as Prime Minister of Pakistan. The elections were held on 07.10.1993 and new government assumed office on 20.10.1993. The appeals before the Tribunal were filed on 19.12.1994."

29.The learned counsel for the petitioners have argued that the period for the purpose of condonation of delay may be bifurcated into two. According to them even if the plea of political pressure having been exerted to delay the filing of the appeal be accepted, the new government came into power on 07.10.1993. Whereas the appeals were filed after a delay of one year and two months which delay is un-explained and contumacious and according to settled principles, delay of each day has to be explained.

30.As narrated above, the primary consideration in the view of the tribunal which constituted sufficient cause was that the delay in filing of the appeal was caused on account of political pressure and influence. It was obligatory upon the department in this regard to have brought necessary evidence on the record which would show that one of the Directors of M/s Ittefaq Foundries, who happened to be the Prime Minister of Pakistan at the relevant time, did in fact exert political pressure and prevented filing of the appeal timously. No evidence has been led in this regard by the department and the Tribunal has also not referred to any evidence or material which would show and bring home the said allegation. The bald assertion or allegation on the part of the department will not be sufficient to accept the plea of the department as regards political pressure. The least that the Tribunal ought to have done was to frame issues to determine the grounds of sufficient cause urged by the department. Moreover, if such pleas were to be accepted it would be setting a dangerous trend as question of limitation and condonation of delay cannot be determined on the basis of allegations the proof of which is not forth-coming and in particular such allegations of serious and grave nature where the political influence is taken as a ground. Even if it be considered for a moment that political pressure was in fact applied for causing delay in filing of the appeal, the period from 07.10.1993 to 19.12.1994 is un-explained and in fact the Tribunal has not adverted its attention to this important aspect. It is trite principle that delay of each day has to be explained in the matters of seeking condonation of delay which in this case is conspicuously missing. Neither the department as an petitioner nor the Tribunal took pains to unravel the reasons for delay of each day. On the same analogy, and conversely, the petitioner herein may also plead similar grounds to attack the impugned judgment of the Tribunal as admittedly the same Director of the Company was out of power at the time of the filing of the appeal and passing of the impugned judgment whereby such a liberal and expansive view was taken in condoning the delay. In fact the petitioners did file constitutional petitions (bearing W.Ps.Nos.14491, 14490, 16549, 291 of 1995) challenging the act of the Tribunal and urging similar pleas grounded in extraneous considerations and political influence. It is precisely for this reason that courts have laid down general principles to be followed in each case without regard to the nature of parties and their standing. The Tribunal did not base its judgment on the rules set down by the Superior Courts for the condonation of delay. Those petitions have been disposed of by this Court upon the submission of the learned counsel for the respondent department that the ground challenging condonation of delay could validly be urged in these reference applications by the petitioners, Mr. A.K.Dogar, Advocate has alleged mala fide and victimization in the context of the passing of the impugned judgment by the Tribunal and in proceeding to condone delay. His contention was that extraneous considerations were taken into account while passing the impugned judgment. On a parity of reasoning, we will be loathe to interfere on the ground of political influence or extraneous considerations of like nature in setting aside the impugned judgment. We are clear in our mind that the Tribunal committed a fallacy and error of law in misreading and misconstruing the law as declared by the superior courts. This should be sufficient to set aside the judgment.

31.Mr. A.K.Dogar Advocate/learned counsel for the petitioners has relied upon a number of judgments which laid down as a rule that each day's delay has to be explained by a person seeking condonation of delay. In this regard, he has referred to (PLD 1975 BJ.29) and Muhammad Ismail v. Abdul Rashid and 2 others (1983 SCMR 168). He has also referred to Bashir Ahmad v. Government of the Punjab (1985 SCMR 333) and Col.(Retd.) Ayub Ali Rana v. Dr.Carlite S. Pune and another (PLD 2002 SC 630) in support of this preposition.

32.From a reading of the impugned judgment of the Tribunal, we have not been able to find any reasons or grounds in support of the conclusion that the delay in filing of the appeal was the outcome of political influence as also that when one of the Directors Mian Nawaz Sharif was no more the Prime Minister of Pakistan, what caused the delay in filing of the appeal for one year and two months. As stated by us hereinabove, this would be setting a dangerous trend as conversely it may be pleaded by the petitioners that the appeals were filed belatedly on account of political influence by the opposition party which was then in power. It is not proper and prudent to base decision in this regard upon such considerations by the Courts.

33.Here we may also refer to the submissions made by Mr. Shahid Parvaiz Jami Advocate/learned counsel for some of the petitioners in connected PTRs, as well as Mr. A.K. Dogar Advocate that refusal by the Commissioner not to file the appeal is a conscious decision and is made after due application of mind. This is encapsulated in section 134(2) of the Ordinance and upon consideration of the entire case, the Commissioner has to form an opinion either to disagree with the findings of the appellate forum and to require the filing of the appeal. According to the learned counsel the department did not file an appeal for 3 and 1/2 years and the order of the ITO was implemented. Having once formed an opinion, no change of opinion at a subsequent stage is permissible. Reliance was placed upon Income Tax Officer and another v. M/s Chappal Builders (1993 PTD 1108) and Messrs Central Insurance Co. and others v. The Central Board of Revenue, Islamabad and others (1993 PTD 766). Another fact which would assume importance and which has not been denied by the learned counsel for the respondent department is that the property in dispute which was sold by the Director to the Company has been further auctioned by the Company Bench of this Court on 29.12.2014 in CO No.63/1998. Thus for all intents and purposes the said sale stands sanctified and legitimised and is no more available for the purposes of assessment to be made with regard to the petitioners.

34.From the grounds taken by the respondent department in the application for condonation of delay it is evident that the allegations which were made were that the petitioners fraudulently and in collusion with the department illegally and by exercising political influence, successfully maneuvered to escape the liability. Upon a query, the learned counsel for the respondent department replied that no action had been taken against any of the functionaries of the department for recalcitrance and negligence shown by those officials. Moreover, the learned counsel for the respondent department was not in a position to rebut that no evidence with regard to the political influence was produced nor was any material placed before the Tribunal which would establish the plea of political influence.

35.The learned counsel for the respondent department has referred to a number of precedents to support the legal proposition involved in the instant references. The learned counsel relied upon (2002) 253 ITR 798 (SC) a judgment from the Indian jurisdiction for construction of the term sufficient cause. It was held in the said judgment that expression sufficient cause should receive a liberal construction. However, at the same time it was held that a distinction must be made between a case where delay is inordinate and a case where the delay is of few days. It was further held that in the former case, the consideration of prejudice to either party would be a relevant factor, so the case calls for a more cautious approach.

36.The learned counsel has also referred to extract from treaties Kanga and Palkiwala which reiterates the same principle. In the case of Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84) the delay of 8-days was condoned in the interest of justice by the Supreme Court of Pakistan. It is pertinent to mention that in this judgment the Supreme Court of Pakistan was pleased to condone the delay which was merely of 8-days and in the opinion of the Supreme Court of Pakistan sufficient cause was forth-coming to condone the delay. The learned counsel has relied on the case of Mian Muhammad Nawaz Sharif v. The State (PLD 2009 SC 814) in which according to the learned counsel a delay of 8-years was condoned. Suffice to say that this case was an authority for its own facts. However, the Supreme Court of Pakistan has extensively dilated upon the causes which prevented the petitioner in that case from filing the appeal on time. There was thus in the opinion of the Supreme Court of Pakistan sufficient cause to condone the delay. This case was also cited in the case of Pervaz Musharaf, Supra, and it was held that delay was condoned upon sufficient cause being demonstrated which was extensively dealt with by the court in that judgment. The case of (1987 SCMR 1119) was also cited for the proposition that special equity exists in favour of the government while considering matters of condonation of delay. However, the observations in the said judgment of the Supreme Court of Pakistan which are more pertinent to the decision of this case are as follows:--

"For example, well it is essential to explain and condone the delay of each day viz-a-viz statutory limitation, there is no such strict requirements in cases of laches."

37.It therefore, follows that the Supreme Court of Pakistan was categoric in stating the law that it was essential to explain and condone the delay of each day. This is an immutable principle in the matters of condonation of delay. However, as regards the observations of the Supreme Court of Pakistan in the said judgment with regard to the extra indulgence to be shown to the governmental instrumentalities in matters of institution and filing of appeals etc., that law has also undergone a sea-change. In this regard reference to Chairman/Secretary, Pakistan Railways, Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javaid Warsi (PLD 2003 SC 6) may usefully be made and the following observations are pertinent:--

"We called upon learned counsel for the petitioner to justify as to whether on the basis of the grounds taken in the application for condonation of delay, ever this Court has shown the indulgence because it is well settled principle that no preferential treatment will be offered, to government department qua the civil litigant, therefore, in view of the judgments passed by this Court in cases of Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Ltd., 1990 SCMR 1059, Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396, Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others 1996 SCMR 727; Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. Through General Manager and 3 others (1998 SCMR 307), Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatiana and others 1998 SCMR 2376 and Chairman, District Evacuee 'Trust, Jhelum v. Abdul Khaliq PLD 2002 SC 436 we are of the opinion that the ground cited for condonation of delay is not sufficient to condone the delay, as such petition is dismissed being barred by time.

It would not be out of context to note here that prior to this matter, we have already made identical directions in the case of Chairman, District Evacuee Trust, Jhelum (ibid) to the effect that the officers of Government Departments who are responsible for causing delay in instituting proceedings before different Court shall be penalized because on account of their such conduct. Government sustains considerable loss which ultimately have to be borne by the public and lethargic tactics of the delinquent officers cannot be tolerated merely either on account of their ignorance of law or for any extraneous consideration. We are hopeful that in presence of these two judgments, in future the members of the Government functionaries shall take interest to institute the proceedings before Courts of law within time as per law of limitation."

38.The Supreme Court of Pakistan opposes this view in a number of precedents which were referred to in the said judgment. A significant aspect of this case was not only that the Supreme Court of Pakistan rejected the placing of ordinary litigants and the government into different compartments, it also issued specific directions for taking action against officials who were responsible for the delay in filing cases and appeals.

39.The observations of the Supreme Court of Pakistan in Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot (2006 SCMR 1248) are also directly relevant to the controversy in hand. It was held that:--

"---Art.185---Supreme Court Rules, 1980, O.XIII, R.1---Appeal to Supreme Court by Federal Government---Barred by time---Condonation of delay----'Sufficient cause'----Connotation----Question of limitation being not a mere technicality cannot be taken lightly and the rights accrued to the other party due to limitation cannot be snatched away without 'Sufficient Cause' and lawful justification---'Sufficient Cause' is not capable of connotation with exactitude and would differ from case to case but laxity, carelessness and cursory approach of the functionaries of the Government do not constitute sufficient cause and question of any indulgence does not arise---Delinquent officers/officials who are responsible for such delay must be taken to task being responsible for the loss of public exchequer.---No illegality or infirmity having been noticed in the judgment of High Court declining condonation of delay, no preferential treatment could be shown to the Government."

40.The law, therefore, stands crystallized on the aspect of the reasons which should weigh with the Court while considering the application for condonation of delay. The rule is settled that the law of limitation runs against void order, too, which like an illegal order, is liable to be set aside. The law of limitation confers a substantive right and is not a mere technicality to be treated casually. In matters of inordinate delay, Courts should be slow to condone delay as rights have come to vest in the other party. Further, the question of limitation is a mixed question of law and fact and reasons must be clearly spelt out to seek an entitlement for condonation. If need be, evidence should be led to establish the relevant facts necessary to bring home the plea of condonation. It seems settled too that in matters of condonation, government or its departments are not entitled to a different treatment and no preference is due to them.

41.In view of the findings above, the questions of law at clauses (a), (b) and (c) of the reference applications are decided in favour of the petitioners. It is not necessary to decide the rest of the questions of law framed and referred for our opinion. As a result, the impugned judgments of the Tribunal dated 16.07.1995 and 24.12.1995 are hereby set aside.

ANNEXURE-A

Sr.#	Case #	Title
1	PTR No.05/1996	Muhammad Riaz Mehraj v. Income Tax Appellate Tribunal etc.
2	PTR No.06/1996	Muhammad Illyas Mehraj v. Income Tax Appellate Tribunal etc.
3	PTR No.07/1996	Mian Mehraj Din v. Income Tax Appellate Tribunal etc.
4	PTR No.08/1996	Mian Muhammad Yahya Siraj v. The Commissioner of Income Tax
5	PTR No.09/1996	Mian Muhammad Farrukh Siraj v. The Commissioner of Income Tax
6	PTR No.10/1996	Mian Muhammad Khalid Siraj v. The Commissioner of Income Tax
7	PTR No.11/1996	Mian Muhammad Nawaz Sharif v. Income Tax Appellate Tribunal etc.
8	PTR No.12/1996	Mian Muhammad Idrees Bashir v. Income Tax Appellate Tribunal etc.
9	PTR No.13/1996	M/s Ittefaq Brothers Steel Ltd. v. Income Tax Appellate Tribunal etc.
10	PTR No.14/1996	M/s Ittefaq Foundries (Pvt.) Ltd. v. Income Tax Appellate Tribunal etc.
11	PTR No.15/1996	M/s Ittefaq Brothers (Pvt.) Ltd. v. Income Tax Appellate Tribunal etc.
12	PTR No.16/1996	Mian Muhammad Aslam Bashir v. Income Tax Appellate Tribunal etc.
13	PTR No.18/1996	Mian Muhammad Bashir v. Income Tax Appellate Tribunal etc.
14	PTR No.19/1996	M/s Ittefaq Sugar Mills (Pvt.) Ltd. v. Income Tax Appellate Tribunal etc.
15	PTR No.20/1996	Mian Muhammad Hassan Barkat v. Income Tax Appellate Tribunal etc.
16	PTR No.21/1996	Mian Muhammad Abbas Sharif v. Income Tax Appellate Tribunal etc.
17	PTR No.22/1996	Mian Pervez Shafi v. Income Tax Appellate Tribunal etc.
18	PTR No.23/1996	Mian Muhammad Javed Shaif v. Income Tax Appellate Tribunal etc.
19	PTR No.24/1996	Mian Muhammad Shahbaz Sharif v. Income Tax Appellate Tribunal etc.
20	PTR No.25/1996	Mian Muhammad Tariq Shafi v. Income Tax Appellate Tribunal etc.
21	PTR No.26/1996	Mian Muhammad Shahid Shafi v. Income Tax Appellate Tribunal etc.
22	PTR No.27/1996	Mian Muhammad Iqbal Barkat v. Income Tax Appellate Tribunal etc.
23	PTR No.28/1996	Mian Muhammad Farooq Barkat v. Income Tax Appellate Tribunal etc.
23(sic)	PTR No.29/1996	Mian Muhammad Hussain Barkat v. Income Tax Appellate Tribunal etc.
24	PTR No.30/1996	Mian Muhammad Zahid Shafi v. Income Tax Appellate Tribunal etc.
25	PTR No.51/1996	Mohammad Yousaf Aziz v. Commissioner of Income Tax.
26	PTR No.52/1996	Ittefaq Textile Mills (Public) Ltd. v. Income Tax Appellate Tribunal etc.

MH/M-288/LReference allowed.