M/s UEP ALPHA LTD (Formerly) OMV Maurice Energy Limited.

APPELLATE TRIBUNAL INLAND REVENUE, DIVISION BENCH-I,

ISLAMABAD.

MA (Stay) No.514/IB/2020

In MA(R) No.18/IB/2019

In ITA No.757/IB/2018

 Tax Year 2014

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M/s UEP ALPHA LTD (Formerly) OMV Maurice Energy Limited.		Applicant
	Vs
CIR, LTU, Islamabad.		Respondent
Appellant By		Mr. Muhammad Kaleem, ITP.
Respondent By		None
Date of Hearing		09.06.2020
Date of Order		09.06.2020

ORDER

M M Akram (Judicial Member):  Through this miscellaneous application, the applicant is seeking further extension in stay already granted by this Tribunal vide order dated 24.03.2020.

2.       Before deciding the titled miscellaneous application, it would be expedient to first highlight the brief facts of the case which are necessary for the purposes of disposing of the instant application. The applicant/appellant preferred appeals under section 131 of the Income Tax Ordinance, 2001 (“the Ordinance”) against the orders bearing Nos.823/2016 dated 29.07.2016 and 421/2018 dated 30.03.2018 passed by the learned CIR(Appeals-I), Islamabad for the Tax Years 2009 and 2014 respectively. The said appeals were dismissed by this Tribunal vide consolidated order dated 24.04.2019. The applicant taxpayer felt aggrieved with the said order, filed the rectification applications before this Tribunal for both the tax years under section 221 of the Ordinance. These applications were also rejected by this Tribunal vide combined order dated 12.12.2019. Thereafter, the applicant went to choose the reference application against the rectification order dated 12.12.2019 under section 133 of the Ordinance which is still pending before the Hon’ble Islamabad High Court. It is pertinent to mention here that pending the reference application before High Court, the applicant again filed another rectification application along with a stay application against the orders 24.04.2019 and 12.12.2019 passed by this Tribunal for the Tax Year 2014. The stay was granted by this Tribunal twice vide orders dated 11.02.2020 and 24.03.2020. The applicant contends that the circumstance under which the earlier stay was granted still exists, therefore, requests for grant of extension in the stay. No one appeared on behalf of the department, therefore, the application is decided ex-parte on its own merits.

3.       We have heard the arguments of the learned AR of the applicant taxpayer and perused the available record with his assistance. Undisputedly, the matter is now sub-judice before the Hon’ble Islamabad High Court and an earlier application of rectification was also rejected by this Tribunal vide order dated 12.12.2019 wherein it has been observed inter alia that: -

“……….Further, the appeal relating to the Tax Y had been disposed of by a single order however separate findings are given for both the tax years under consideration, so there appears no infirmity in the said order and the objection/allegations of the counsel is out of context that the court while hearing of subject appeals had agreed to adjourn the appeal for the tax year 2014 and fix the same with another one.

In our view, these rectification applications are a sort of review not rectification, which is obvious from the contents of miscellaneous applications whereby the applicant clearly seeks review of the order. The review/revisit is beyond the scope of rectification/section 221 of the Income Tax Ordinance, 2001. It is obvious from the impugned order of this Tribunal/Bench that the learned Bench while passing main appeals order has applied conscious mind, have had considered the arguments of both the parties and facts of the case at length, dealt with elaborately and the propositions as raised were answered and decided by the tribunal with the reasons to that effect.

6.       Before parting with this judgment, we may observe that the failure by the appellate authority to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment. There is no scope for rectifying an error of judgment by such provisions like 221 of the Income Tax Ordinance, 2001.”

The above findings of this Tribunal were confronted to the learned AR that in the presence of the aforesaid categorical findings while deciding on an earlier rectification application how the second rectification application is maintainable under the law. The learned AR could not give any plausible reason. We are of the considered opinion that after deciding the main appeals and the rectification applications thereon, this Tribunal has become functus officio and no further rectification application could be given particularly when the disputed points have already been raised in reference application before the Hon’ble High Court. Further considering the fact that the applicant has already availed the statutory remedy by filing a reference application under section 133 of the Ordinance against the same cause before the Hon’ble Islamabad High Court, the rectification application has become infructuous and is also liable to be dismissed on this ground alone. The specific point requiring determination by this Tribunal would be as to whether two parallel remedies could be availed by the applicant simultaneously on the same cause?  We are afraid of this practice of seeking remedy in reference application by the taxpayer and simultaneously filing an application for rectification of an order is a mockery of law notwithstanding the fact that section 221 of the Ordinance is restricted to rectifying a mistake which must be apparent from the record and its scope cannot be construed as that of a statutory right of remedies provided under sections 127, 131 and 133 of the Ordinance of 2001. It is an established principle of law that when an appeal/reference is pending before a superior forum, an application for rectification cannot be entertained by a subordinate forum as a rule. The Appellate Tribunal Inland Revenue (ATIR) is a forum, subordinate to the High Court under the Ordinance. Reliance may be placed on Civil Writ Petition No.25152 of 2013 titled as Industrial Equipment Company Chandigarh Vs Income Tax Appellate Tribunal and another decided on 18.11.2013 (Haryana High Court). 

             Although the applicant taxpayer at least had two concurrent remedies, i.e. reference application and rectification application under section 133 and 221 of the Ordinance respectively to assail the order of this tribunal and one does not exclude the other, but it was open to it to choose either of the two and the moment remedy of reference application was availed, the doors of the ATIR to receive/entertain the rectification application under section 221 were closed to decide both the remedies simultaneously or one after the other. If duplication is allowed, then there would be no end to litigation, which may also cause conflicting judgments and would be sheer abuse of the process of law. The Apex Court while dealing with a similar proposition in a case titled Mrs. Amina Bibi vs. Nasrullah, (2000 SCMR 296) had discussed the remedies and panorama available to the litigant for his redressal against an ex-parte decree and para 7 thereof being relevant is given below: -

“Where a suit has been decreed ex parte, various remedies are available to an aggrieved person for redress of his grievance. Firstly, an application under Order IX Rule 13 CPC; secondly, an appeal from the ex parte decree under section 96 (2), CPC; a petition for review under section 114 read with Order XLVII and a civil suit on the ground of fraud and want of jurisdiction. The latter remedy is now substituted by section 12 (2) CPC. Here, the petitioner has exhausted her remedies by filing an application under Order IX Rule 13 CPC and, therefore, on the same ground she cannot be permitted to re-agitate the same issue by means of a fresh petition under section 12 (2) CPC.”

The Apex Court recently rendered a comprehensive judgment and his Lordship Mr. Justice Mushir Alam, speaking for it in the case reported as Trading Corporation of Pakistan Vs. Dewan Sugar Mills Limited and others (PLD 2018 SC 828) discussed the doctrine of election in-depth and finally held that once the litigant opted to avail one out of the provided remedies, then it generally could not be permitted to initiate the other one. The relevant part of his lordship’s conclusion being squarely applicable to the facts of the case in hand is reproduced hereunder: -

“ …The moment suitor intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst a host of actions or remedies available under the law. The choice to initiate and pursue one out of a host of available concurrent or co-existent proceedings/actions or remedy from a forum of competent jurisdiction vest with the suitor. Once the choice is exercised and the election is made then a suitor is prohibited from launching another proceeding to seek relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as the doctrine of election, which doctrine is culled by the courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim privilege or relief as contained in Order II, rule (2) C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order 1984 and principles of res-judicata as articulated in section 11, C.P.C. and its explanations. Doctrine of election applies both to the original proceedings/action as well as defences and so also to challenge the outcome on the culmination of such original proceedings/action, in the form of order or judgment/decree C.R.No.1339/2017 10 (for illustration it may be noted that multiple remedies are available against the possible outcome in the form of an order/judgment/decree, etc. emanating from proceedings of civil nature, which could be challenged/defended under Order IX, rule 13 (if proceedings are ex-parte), section 47 objection to execution), section 114(by way of review of an order), section 115 (revision), under Order XXI, rules 99 to 103 C.P.C. and section 96 C.P.C. (appeal against the order/judgment), etc. Though there is no bar to concurrently invoke more than one remedy at the same time against an ex-parte order/judgment. However, once election or choice from amongst two or more available remedies is made an exhausted, judgment debtor cannot ordinarily be permitted subsequently to venture into other concurrently or coexisting available remedies. With more certainty, it was further concluded that:- Giving choice to elect remedy from amongst several coexistent and or concurrent remedies does not frustrate or deny the right of a person to choose any remedy, which best suits under the given circumstances but to prevent recourse to multiple or successive redressals of a singular wrong or impugned action before the competent forum/court of original and or appellate jurisdiction, such rule of prudence has been evolved by courts of law to curb multiplicity of proceedings. As long as a party does not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked. Once the election is made then the party generally, cannot be allowed to hop cover and shop for one after another coexistent remedies. In an illustrative case this court in the case of Mst. Fehmida Begum v. Muhammad Khalid and others (1992 SCMR 1908) encapsulated the doctrine of election as follows:-

“However, it is one thing to concede power to the statutory forum to recall an order obtained from it by fraud, but another to hold that such power of adjudication or jurisdiction or jurisdiction is exclusive so as to hold that a suit filed in a civil court of general jurisdiction is barred. I am therefore in agreement with my brother that a stranger to the proceedings, in a case of this nature has two remedies open to him. He can either go to the special forum with an application to recall or review the order, or file a separate suit. Once he acts to invoke either of the remedies, he will, on the general principles to avoid a conflict of decisions, ultimately before the higher appellate forums, be deemed to have given up and forfeited his right to the other remedy, unless as held in Mir Salah-ud-Din v. Qazi Zaheer-ud-Din PLD 1988 SC 221, the order passed by the hierarchy of forums under the Sindh Rented Premises Ordinance, leaves scope for approaching the Civil Court.”

The ratio of the above-stated case has also recently been applied by the Division Bench of the Hon’ble Lahore High in the case titled Daan Khan (deceased) through legal heirs Vs Assistant Collector (Notified), (2019 CLC 483). In this case, while deciding the Intra Court Appeal, it was observed that:

“Now a question arises as to whether after availing the remedy for the restoration of the earlier constitutional petition, the appellants could resort to the other remedy provided in Rule 4 of Order IX CPC. Answer to this question is available in a recent judgment handed down by the Hon’ble Supreme Court of Pakistan in the case of “Trading Corporation of Pakistan versus Devan Sugar Mills Limited and others” (PLD 2018 Supreme Court 828) wherein it has been held that “……………………..” On the basis of said precedent, the conclusion is that the appellant’s second constitutional petition i.e. W.P.No.104-R of 2010, giving rise to the instant appeal, was not competent.”

The aforesaid principle has also been applied over the years in the Indian jurisdiction as well. Some of the leading cases in this regard are discussed hereunder: -

Jai Singh Vs Union of India and others (AIR 1977 SC 898), the apex Court held that the appellant cannot pursue two parallel remedies in respect of the same matter at the same time. Chemech Engineers Pvt. Ltd. vs The Director Of Industries And others (AIR 1994 Mad 14)

"It has also been brought in our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time."

Keeping in view the judicial consensus on the issue at hand, it would be safe to conclude that the applicant taxpayer at the most could select one of the remedies provided by the Statute, but it was not its choice to avail/press one after the other or simultaneously.   

4.         In the light of the facts and circumstances of the case and ratio decided by the Hon’ble Superior Courts, this miscellaneous application is rejected being devoid of merits. The AR (Roster) is directed to fix the rectification application at the earliest before any available Bench.

5.          This order consists of (06) pages and each page bears my signature.

	Sd/-  (M.M. AKRAM) JUDICIAL MEMBER
Sd/-  (IMTIAZ AHMED) ACCOUNTANT MEMBER