Monday, October 12, 2026

Mr Muhammad Zaman v Commissioner Inland Revenue, Gujrat Zone, RTO, Sialkot.

  

APPELLATE TRIBUNAL INLAND REVENUE, DIVISION BENCH-I, ISLAMABAD

 

STA No.201/IB/2026

MA(Cond) No.283/IB/2026

MA(Stay) No.1547/IB/2026

*****

Mr Muhammad Zaman C/o Qamar Traders, Ghala Mandi, Lalamusa.

NTN:0407284-7 & STR.3277876210206

 

Appellant

VS

Commissioner Inland Revenue, Gujrat Zone, RTO, Sialkot.

 

Respondent

 

Appellant by:

 

Ms Huma Amin, Advocate

Respondent by:

 

None

 

Date of hearing:

 

12.10.2026

Date of order:

 

12.10.2026

O R D E R 

M. M. AKRAM (Judicial Member):  The instant appeal along with applications for condonation of delay and interim relief has been preferred by the appellant registered person against the impugned order No. 21-ST/2025-26 dated 24.12.2025, passed by the learned Assistant Commissioner Inland Revenue, Unit-13, Gujrat Zone, RTO, Sialkot under section 11E of the Sales Tax Act, 1990, pertaining to the tax periods July, 2021 to June 2023. The appellant has assailed the impugned order on the grounds set forth in the memorandum of appeal.

2.     BRIEF FACTS OF THE CASE

2.1.  The brief facts giving rise to the instant appeal are that the learned Assessing Officer passed an Order-in-Original against the appellant under the relevant provisions of the Sales Tax Act, 1990 [hereinafter referred to as “the Act”]. Being aggrieved by the said order, the appellant, in exercise of the statutory remedy available under section 45B of the Act, preferred an appeal before the learned Commissioner Inland Revenue (Appeals) [hereinafter referred to as “the learned CIR(A)”] on 12.08.2026. By invoking the said appellate remedy, the appellant consciously elected to avail the statutory forum provided under section 45B of the Act and thereby submitted the impugned Order-in-Original to appellate scrutiny before the learned CIR(A).

2.2. The appeal so instituted remained pending adjudication before the learned CIR(A). During the pendency of the said proceedings, the appellant approached the Appellate Tribunal Inland Revenue [hereinafter referred to as “the Tribunal”] by filing an interim appeal against the same Order-in-Original, seeking suspension of the recovery proceedings. However, as the learned CIR(A) had not passed any order on the appellant’s application for interim relief, the appeal before the Tribunal, in the absence of any order capable of being assailed before it, was not maintainable.

2.3.  Thereafter, the appellant instituted the instant appeal before the Tribunal against the very same Order-in-Original, purportedly invoking the remedy contemplated under the second proviso to section 45B(1) of the Act. Consequent thereto, the appellant moved an application before the learned CIR(A) seeking withdrawal of the appeal already pending before that forum. The principal ground advanced in support of the withdrawal application was that, having subsequently invoked the appellate jurisdiction of the Tribunal under the aforesaid proviso, the appellant no longer intended to pursue the appeal pending before the learned CIR(A).

2.4. The learned CIR(A), upon consideration of the request made by the appellant, dismissed the appeal as withdrawn without examining or adjudicating the merits of the controversy arising from the impugned Order-in-Original. The appellant has thereafter approached this Tribunal, thereby giving rise to the question concerning the legal effect of the successive invocation of appellate remedies against the same original order, particularly whether the appellant, having initially elected to invoke the appellate jurisdiction of the learned CIR(A), could subsequently abandon that remedy and seek recourse to the Tribunal under the second proviso to section 45B(1) of the Act.

2.5.  The controversy, therefore, is not merely with regard to the withdrawal of the appeal pending before the learned CIR(A), but relates to the legal effect of an option once exercised under section 45B of the Act. In particular, it falls for consideration whether the subsequent withdrawal of an appeal, after its valid institution before the learned CIR(A), can retrospectively extinguish or undo the earlier exercise of the statutory appellate option, thereby enabling the appellant to exercise the same option afresh and invoke the alternative appellate jurisdiction of the ATIR under section 46 of the Act.

FINDINGS:

3.    The case came up for hearing on 12.10.2026. We have heard the learned AR for the appellant at considerable length and have carefully examined the available record as well as the relevant statutory provisions. Upon consideration of the controversy arising from the facts and circumstances of the case, the following question arises for our determination:

Whether, after an aggrieved person has exercised the statutory option available under the proviso to section 45B of the Sales Tax Act, 1990 by instituting an appeal before the Commissioner Inland Revenue (Appeals), such person can subsequently withdraw the said appeal and, by purporting to relinquish or surrender the remedy before the Commissioner (Appeals), exercise the same statutory option afresh so as to maintain a direct appeal against the original order before the Appellate Tribunal Inland Revenue under section 46 of the Act?

We have carefully considered the question referred for determination, the statutory scheme governing appeals under the Sales Tax Act, 1990 (hereinafter referred to as “the Act”), particularly the provisions of sections 45B and 46, and the legal effect of the second proviso to section 45B(1). The controversy essentially turns upon the interpretation of the expression “without availing right of Appeal under this section” occurring in the second proviso to section 45B(1), and whether a person who has already invoked the appellate jurisdiction of the Commissioner Inland Revenue (Appeals) can, by subsequently withdrawing that appeal, claim that he had never availed the remedy and thereby invoke the alternative jurisdiction of the Appellate Tribunal Inland Revenue [hereinafter referred to as “the Tribunal”] directly against the same original order. For proper appreciation of the controversy, the relevant statutory provisions are reproduced hereunder:

“45B. Appeals.– (1) Any person, other than an State Owned Enterprises (SOE), aggrieved by any decision or order passed under sections 10, 11A, 11D, 11E, 11F, 21, 33, 34 and 66 of this Act, by an officer of Inland Revenue may, within thirty days of the date of receipt of such decision or order prefer appeal to the Commissioner Inland Revenue (Appeals):

Provided that an appeal preferred after the expiry of thirty days may be admitted by the Commissioner Inland Revenue (Appeals) if he is satisfied that the appellant has sufficient cause for not preferring the appeal within the specified period:

Provided further that registered person shall have an option to directly file an appeal before Appellate Tribunal Inland Revenue without availing right of Appeal under this section.”

Section 46(1), insofar as material for the present controversy, provides:

“46. Appeals to Appellate Tribunal.– (1) Any person including an officer of inland revenue not below the rank of Additional Commissioner aggrieved by an order of the Commissioner (Appeals) under this Act or the rules made thereunder; or any person other than SOE aggrieved by an order passed by officer of inland revenue when second proviso to section 45B applies, may within thirty days of the receipt of such order, prefer an appeal to the Appellate Tribunal.” (Emphasis supplied)

4.    A plain reading of the above provisions establishes that the legislature has deliberately created two alternative avenues for a registered person aggrieved by an order of an officer of Inland Revenue. The ordinary course is to invoke the appellate jurisdiction of the Commissioner (Appeals) under section 45B. The second proviso, however, confers upon a registered person an alternative statutory facility to bypass that forum and approach the Tribunal directly. This direct route is not unqualified; it is expressly conditioned by the words “without availing right of Appeal under this section.” The words employed by the legislature are therefore of decisive significance. The direct appeal is not available merely because the taxpayer is aggrieved by the original order. It becomes available, under the express terms of the proviso, where the taxpayer proceeds to the Tribunal without availing the appellate remedy under section 45B. Section 46(1), correspondingly, recognises the direct appeal only where the second proviso to section 45B applies. The two provisions must consequently be read together and harmoniously.

5.    The second proviso to section 45B(1) does not create two cumulative or successive appellate remedies. It creates alternative routes of first appeal. The statutory scheme may therefore be represented as follows:

First route:

Original order → Commissioner (Appeals) under section 45B → Tribunal under section 46.

Second route:

Original order → directly to Tribunal under section 46, by virtue of the second proviso to section 45B.

The expression “without availing right of Appeal under this section” constitutes the distinguishing feature between the two routes. The legislature has permitted a registered person to bypass the Commissioner (Appeals), but has expressly linked that facility to non-availment of the ordinary remedy. The second proviso thus confers an alternative statutory choice as to the forum of first appeal. It does not confer an unrestricted or continuing right whereby a registered person may first invoke one forum, subsequently abandon that proceeding, and then invoke the other forum as though the first choice had never been made. The distinction is important. If a registered person, at the threshold, decides not to approach the Commissioner (Appeals) and instead files a direct appeal before the Tribunal, the statutory condition of non-availment is satisfied. Conversely, where the registered person/taxpayer elects to invoke section 45B and actually files an appeal before the Commissioner (Appeals), the statutory remedy has been availed. The subsequent fate of that appeal cannot alter the historical fact that the remedy was invoked. The statute, therefore, contemplates a choice between alternative courses at the inception of the appellate process and not a right to move repeatedly from one appellate forum to another according to subsequent convenience or perceived advantage.

6.    The material event for determining whether the remedy under section 45B has been “availed” is the institution of the appeal, and not the ultimate adjudication of that appeal on merits. Once an aggrieved person files an appeal before the Commissioner (Appeals), he has consciously invoked the jurisdiction conferred by section 45B. The Commissioner (Appeals) thereby becomes the forum selected by the taxpayer for examination of the grievance against the original order. The taxpayer cannot thereafter assert that, because the appeal was subsequently withdrawn, the remedy was never availed. Such a construction would introduce into the statute a qualification which the legislature has not prescribed. The proviso does not state that the direct appeal is available where the taxpayer has “not obtained a decision”, “not pursued the appeal to conclusion”, or “withdrawn an appeal before adjudication.” The statutory expression is simply “without availing right of Appeal under this section.” There is a material legal distinction between non-availment and subsequent abandonment. Where no appeal is filed before the Commissioner (Appeals), the remedy has not been availed. Where an appeal is filed and thereafter withdrawn, the remedy has first been availed and is subsequently abandoned. These two situations cannot be treated as legally identical without disregarding the plain language of the proviso. The subsequent withdrawal may bring the proceedings before the Commissioner (Appeals) to an end, but it cannot retrospectively erase the institution of those proceedings. In other words:

Withdrawal terminates the proceeding; it does not retrospectively undo its institution. This principle assumes particular significance where the existence of jurisdiction before the alternative forum depends upon the prior non-availment of another remedy.

7.    The above interpretation is reinforced by the well-recognised doctrine of election of remedies. Where the law provides alternative courses of action for obtaining redress in respect of the same grievance, and the statutory scheme makes the availability of one course dependent upon non-availment of the other, a litigant who consciously elects one course cannot ordinarily treat that election as non-existent merely because he subsequently chooses to abandon the proceeding. The Hon’ble Supreme Court of Pakistan in Trading Corporation of Pakistan v. Devan Sugar Mills Ltd., (PLD 2018 SC 828), considered the consequences of election where alternative remedies are available. The Supreme Court recognised the relationship of the doctrine of election with waiver, abandonment and estoppel and emphasised that the law does not contemplate successive invocation of alternative remedies in relation to the same grievance merely because the litigant subsequently desires to pursue another course. The principle emerging from the said judgment is particularly apposite here. The taxpayer is confronted with two alternative statutory courses:

i.     invoke the Commissioner (Appeals) under section 45B; or

ii.    bypass that forum and directly invoke the Tribunal under the second proviso to section 45B read with section 46.

Once the taxpayer has consciously adopted the first course and instituted an appeal before the Commissioner (Appeals), his subsequent withdrawal cannot be employed as a procedural device to assert that the first course was never adopted. The principle is not founded merely upon technicality. It rests upon the broader requirement that statutory remedies must be pursued in accordance with the structure in which the legislature has created them. A litigant cannot, by successive procedural steps, convert alternative remedies into cumulative remedies. The doctrine also serves the policy against multiplicity of proceedings. As recognised in the jurisprudence relating to election of remedies, fair administration of justice does not contemplate that a litigant should be permitted to pursue successive remedies against the same impugned action before different forums merely by abandoning the first proceeding whenever it becomes inconvenient.

8.    The distinction between withdrawal of a proceeding and non-availment of a statutory remedy is therefore fundamental. A person who never files an appeal before the Commissioner (Appeals) has not availed the remedy under section 45B. A person who files such appeal but subsequently withdraws it has availed the remedy and thereafter abandoned the proceeding. The latter cannot retrospectively become the former. The contrary interpretation would effectively permit the following sequence: original order → appeal before Commissioner (Appeals) → withdrawal → direct appeal before Tribunal. Such a course would mean that the taxpayer could test one statutory forum, observe the proceedings, and, if dissatisfied or otherwise advised, abandon that forum and commence proceedings before another. The second proviso does not expressly confer such a facility. The expression “without availing” would become substantially meaningless if an appeal once availed could simply be converted into non-availment by its subsequent withdrawal. The taxpayer would, in substance, be permitted to say:

“I availed the remedy, but because I later withdrew it, I should now be treated as though I had never availed it.”

Such a proposition confuses the legal consequence of abandonment with the factual and legal consequence of initial invocation. A proceeding may cease to exist after withdrawal; the fact that it was instituted does not cease to have existed.

9.     Section 46(1) provides further support for this interpretation. Its first limb contemplates an appeal before the Tribunal against an order of the Commissioner (Appeals). Its second limb creates the special jurisdiction where a person is aggrieved by an order passed by an officer of Inland Revenue “when second proviso to section 45B applies.” The latter expression cannot be detached from the condition contained in the second proviso itself. The Tribunal's direct appellate jurisdiction against the original order exists only where the second proviso applies; and the second proviso applies where the registered person chooses the direct route without availing the right of appeal under section 45B. Section 46 therefore does not create an independent and unrestricted right to appeal directly to the Tribunal against every order of an officer of Inland Revenue. Rather, it gives procedural effect to the special alternative route created by the second proviso. The two provisions must accordingly be read together:

a.   section 45B establishes the ordinary appellate remedy;

b.   the second proviso to section 45B creates the alternative direct route;

c.    section 46 recognises the Tribunal's jurisdiction where that alternative route is validly invoked.

Once the ordinary remedy has already been availed, the statutory condition upon which the direct route depends is no longer fulfilled.

10.   It is a settled principle of statutory interpretation that every word used by the legislature must, so far as possible, be given meaning and effect. Courts and Tribunals are required to construe statutory provisions in a manner which avoids rendering any part of the enactment redundant or otiose. Redundancy cannot ordinarily be attributed to the legislature, and an interpretation which renders any word, expression or statutory condition superfluous or meaningless is to be avoided. Reference in this regard may be made to Oil and Gas Development Company Limited v. Federal Board of Revenue and 2 others (2016 PTD 1675), Zaver Petroleum Corporation Limited v. Federal Board of Revenue and another (2016 PTD 2332), Dr Raja Aamer Zaman v. Omer Ayub Khan and others (2015 SCMR 1303) and Mst. Rooh Afza v. Aurangzeb and others (2015 SCMR 92), wherein the superior Courts reiterated the principle that, in construing a statute, every word and expression is to be given its due meaning and effect and an interpretation leading to redundancy or absurdity is to be eschewed. The provisions of a statute are also required to be read together and construed harmoniously so as to ascertain and give effect to the legislative intent rather than to create conflict or render any part of the enactment ineffective. The legislature could simply have provided that a registered person “may directly file an appeal before the Appellate Tribunal Inland Revenue.” It did not do so. Instead, it qualified that right by employing the words: “without availing right of Appeal under this section.” The addition of these words is deliberate and cannot be ignored. They establish that the direct appeal is conditional upon the taxpayer not having availed the ordinary appellate remedy. If subsequent withdrawal were sufficient to restore the direct appeal, the statutory expression would lose its intended operation. A taxpayer could first avail the remedy and thereafter, by withdrawing it, claim that the condition of non-availment had been satisfied. Such an interpretation would effectively substitute the words “without having an appeal pending before the Commissioner (Appeals)” for the words actually enacted: “without availing right of Appeal under this section.” The two expressions are not synonymous. An appeal may cease to be pending because it has been withdrawn, but it does not follow that the statutory right of appeal was never availed. Nor has the legislature stated that the direct remedy becomes available whenever an appeal under section 45B is withdrawn before decision. Had such an intention existed, an appropriate statutory provision could readily have been incorporated. In the absence of such language, it would not be appropriate for the Tribunal to create an additional statutory avenue by interpretation.

11.   Another important consideration is that the withdrawal of an appeal before the Commissioner (Appeals) does not result in the creation of a fresh appellate order against the original order. Nor does it constitute a fresh cause of appeal against that order. A distinction must therefore be maintained between:

(a)    a fresh appellate right arising from a subsequent statutory order; and

(b)    an attempt to revive an appellate right which had already been exercised against the same original order.

Where the Commissioner (Appeals) adjudicates an appeal, section 46 expressly provides the further statutory remedy against his order. That is a fresh statutory stage created by the adjudication itself. Where, however, the taxpayer withdraws his appeal without adjudication, there is no order of the Commissioner (Appeals) on the merits giving rise to the ordinary appellate jurisdiction under the first limb of section 46. At the same time, the taxpayer cannot use the absence of such adjudication as a basis for asserting that the earlier appeal under section 45B was never filed or never availed. The original order remains the same. The grievance remains the same. The taxpayer remains the same. What has changed is only the procedural status of the proceeding which the taxpayer himself instituted and later abandoned. Such withdrawal cannot, without statutory authorisation, generate a new and independent right of direct appeal against the original order.

12.   The contrary construction would also have serious implications for the statutory limitation prescribed for appeals. The right of appeal is a creature of statute. Its existence, scope, forum and limitation are governed by the enactment which creates it. A litigant cannot, through procedural manoeuvring, enlarge a statutory period or generate a fresh period of limitation where none has been provided by the legislature. The more recent Supreme Court election-of-remedies jurisprudence, including 2024 SCMR 518, expressly states that once a remedy is elected, a litigant generally cannot “hop over and shop” for successive remedies. If withdrawal of an appeal were held to revive the direct right of appeal, a taxpayer could potentially institute an appeal before the Commissioner (Appeals), retain it for a period, withdraw it subsequently, and then contend that a fresh right to approach the Tribunal had accrued from the date of withdrawal. Such a construction could, depending upon the timing of withdrawal, permit the statutory limitation governing the direct appeal to be indirectly extended or otherwise rendered uncertain by the taxpayer's unilateral procedural act. No such consequence can be attributed to the legislature in the absence of clear statutory language. The period of limitation prescribed for an appeal cannot be indirectly reset by the unilateral withdrawal of another proceeding.

13.   The principle of election is not confined to tax proceedings. It represents a broader rule governing the conduct of litigants where alternative statutory or legal remedies are available. In Abdul Shakoor v. Province of Sindh & others, Constitutional Petition No. D-6425 of 2024, order dated 13.11.2025, the Hon’ble Sindh High Court considered a situation where the petitioner had initially elected one statutory forum and subsequently withdrew the proceeding and attempted to invoke another forum. The Court declined to permit such a course and applied the doctrine of election of remedies, emphasizing, in substance, that once a litigant had elected the forum through which he sought redress, he could not subsequently change the forum merely because the first course had become inconvenient or undesirable. The Court also referred to the principle that the law does not permit a litigant to have “multiple bites at the cherry.” The principle is substantially analogous to the controversy before us. The sequence in both situations is:

first forum elected → proceeding instituted → proceeding withdrawn → second forum invoked.

The material distinction, if any, is that in the present case the doctrine is reinforced by express statutory language. Here, the legislature itself has made the direct Tribunal remedy dependent upon non-availment of the appeal before the Commissioner (Appeals). The principle of election is therefore not being employed to create a limitation which the statute does not contain; rather, it assists in giving effect to a limitation which the legislature has expressly incorporated into the second proviso.

14.   The Hon’ble Supreme Court of Pakistan has repeatedly emphasised the importance of respecting statutory remedies and the legislative scheme governing their exercise. In Taufiq Asif v. General (Retd.) Pervez Musharraf and others (PLD 2024 SC 610), the Hon’ble Supreme Court reiterated the principle relating to exhaustion of remedies and emphasised that a litigant cannot circumvent or bypass a remedy specifically provided by the relevant statute. The Court referred, inter alia, to Mian Azam Waheed v. Collector of Customs (2023 SCMR 1247), and other authorities dealing with the necessity of pursuing remedies according to the statutory scheme. We are conscious that the principal controversy in those cases concerned the invocation of constitutional jurisdiction despite availability of an adequate statutory remedy. Nevertheless, the underlying principle remains relevant: where the legislature has prescribed a particular statutory mechanism for redress, the courts and litigants alike must respect the structure, conditions and limitations attached to that mechanism. The present case involves an even more specific statutory restriction because the legislature has itself conditioned the direct Tribunal remedy upon non-availment of the appeal before the Commissioner (Appeals). A litigant cannot, by selecting one statutory route, later abandoning it and then invoking another route, achieve indirectly what the statute does not permit directly.

15.   The taxpayer may contend that withdrawal amounts to a surrender or waiver of the right of appeal before the Commissioner (Appeals), and that, having surrendered that remedy, he should be permitted to proceed before the Tribunal. The proposition, however, proceeds upon a misconception of the nature of the statutory right created by the second proviso. The direct right before the Tribunal does not arise because the taxpayer has surrendered his right before the Commissioner (Appeals). It arises because, at the relevant stage, he has not availed that right. This distinction is decisive. A person may, in appropriate circumstances, waive or abandon a legal proceeding. But the abandonment of one remedy does not necessarily revive or create another remedy which the legislature has made available only upon satisfaction of a particular condition. Thus: non-availment ≠ subsequent abandonment. The former is a condition prescribed by the statute. The latter is a subsequent procedural act of the litigant. The taxpayer cannot satisfy a statutory precondition retrospectively by an act performed after the precondition has ceased to exist.

16.   The jurisdiction of the Tribunal under section 46 is statutory. It must exist by virtue of the Act and cannot be conferred by consent, waiver, acquiescence, nomenclature or unilateral declaration of a litigant. Accordingly, where the statutory conditions for direct appellate jurisdiction are absent, the taxpayer cannot create such jurisdiction by first filing an appeal before the Commissioner (Appeals), subsequently obtaining its withdrawal, and then asserting that he has “surrendered” his right before that forum. The character of the proceeding is determined by the statute and by the substance of the taxpayer's conduct, and not by the terminology adopted in the application for withdrawal. The distinction may be expressed simply: “I filed an appeal before the Commissioner (Appeals) and subsequently withdrew it” is a statement of fact. “I never availed the remedy under section 45B” is a legal proposition. The first proposition may be true after withdrawal; the second does not follow from it. Indeed, to hold otherwise would permit a litigant to determine the existence of the Tribunal's statutory jurisdiction by his own subsequent procedural act. Such a result would be contrary to the settled principle that jurisdiction flows from the statute and not from the conduct or consent of the parties.

17.   The principle against approbation and reprobation also lends support to the same conclusion. A litigant cannot, in relation to the same statutory choice, adopt one position when it is advantageous and subsequently adopt its opposite when circumstances make the latter more convenient. By filing an appeal before the Commissioner (Appeals), the taxpayer necessarily represents that he is invoking that statutory forum to obtain redress against the original order. Having invoked that jurisdiction, he cannot thereafter, merely because he chooses to abandon the proceeding, assert that the statutory condition of non-availment existed throughout. The doctrine is particularly compelling in the present case because the taxpayer seeks to use his own withdrawal as the foundation for the jurisdiction of the alternative forum. The law cannot permit a litigant to create jurisdiction by first negating and then re-characterising his own earlier election.

18. There is also a substantial policy consideration supporting the above interpretation. The alternative construction would facilitate forum shopping. If withdrawal were held sufficient to restore the direct appeal, a taxpayer could:

i.     initially file an appeal before the Commissioner (Appeals);

ii.    observe the proceedings and assess the likely outcome;

iii.   withdraw the appeal if circumstances become unfavourable or another forum appears strategically preferable; and

iv.  thereafter institute a direct appeal before the Tribunal.

Such a course would convert an alternative appellate remedy into a mechanism for sequential experimentation with forums. The legislature has provided flexibility to a registered person at the threshold by allowing him to choose between the Commissioner (Appeals) and the Tribunal. It has not, however, expressly conferred an unrestricted right to change the selected forum after instituting appellate proceedings. Permitting such a course would also create uncertainty regarding limitation, procedural history, jurisdiction and finality of proceedings. The same original order could potentially become the subject of successive appellate proceedings before different forums at different stages, merely because the taxpayer chose to withdraw the first proceeding. Such an interpretation would be inconsistent with the orderly administration of justice and the legislative design of a hierarchical appellate system.  

19.   Although the second proviso does not expressly employ the phrase “one-time option,” its one-time character follows from the structure and language of the statutory scheme. The sequence contemplated by the legislature is:

i.     an order is passed by an officer of Inland Revenue;

ii.    the aggrieved registered person acquires the statutory right of appeal;

iii.   two alternative routes are made available;

iv.  the taxpayer chooses one of them;

v.    upon filing before the selected forum, that statutory choice is acted upon.

The statute does not contemplate that the taxpayer may repeatedly reconsider the choice after commencing proceedings. Thus, the expression “one-time option” is not being imported into the statute as an independent statutory phrase. It is a description of the legal consequence flowing from the alternative character of the remedies and the express requirement that the direct remedy be exercised without availing the remedy under section 45B. The relevant point is therefore not whether Parliament used the expression “one-time” but whether the statutory scheme permits repeated or successive exercise of the alternative. In our view, it does not.

20.   The decisive principle may therefore be stated thus: a statutory right conditioned upon non-availment of another remedy cannot be revived by subsequent withdrawal of that other remedy after it has already been availed. The taxpayer's withdrawal may have the procedural effect of bringing the appeal before the Commissioner (Appeals) to an end. It does not, however, restore the legal position which existed before the appeal was instituted. This is particularly so where the alternative statutory jurisdiction is dependent upon a condition precedent. Once that condition has ceased to exist because the taxpayer has already availed the first remedy, a later unilateral act cannot retrospectively recreate the condition unless the statute expressly authorises such restoration. No such enabling provision has been pointed out in the Act. Consequently, the phrase “without availing right of Appeal under this section” must be understood as referring to the position prevailing when the direct appellate remedy is invoked. It cannot be satisfied by subsequent withdrawal of an appeal which had already been instituted under section 45B.

21.   When sections 45B and 46 are read together, the legislative scheme admits of only one coherent interpretation. Section 45B creates the ordinary appellate remedy. The second proviso permits a registered person to bypass that remedy. Section 46 provides the Tribunal's jurisdiction in both situations:

a.   against an order of the Commissioner (Appeals); and

b.   directly against an order of an officer of Inland Revenue where the second proviso to section 45B applies.

The second route is therefore exceptional and conditional. It exists only where the taxpayer has not availed the first appellate remedy. If the taxpayer has already filed before the Commissioner (Appeals), the first route has been selected and invoked. The direct route cannot subsequently be resurrected merely by withdrawal. Any other interpretation would make the two provisions operate in conflict rather than harmony and would deprive the words “when second proviso to section 45B applies” of their intended limitation.

22.   We may test the competing interpretations by their practical consequences. Under the interpretation advanced by the taxpayer, the following would be permissible:

Original order → appeal before Commissioner (Appeals) → withdrawal → direct appeal before Tribunal.

If this were permissible, there would be no effective point at which the statutory election becomes final. A taxpayer could theoretically repeat the process, subject only to such limitations as might be imposed by the general law. The statute, however, contains no mechanism regulating such repeated elections. Under the interpretation which gives effect to the words enacted by Parliament, the position is clear: Original order → either Commissioner (Appeals) or directly to the Tribunal. Once one route has been invoked, the alternative route cannot subsequently be substituted merely by abandoning the first proceeding. The latter interpretation gives effect to the statutory language, preserves the distinction between the two routes, respects limitation, prevents forum shopping and maintains the orderly structure of appellate jurisdiction. It is therefore the preferable construction.

CONCLUSION:

23.   For the foregoing reasons, and upon a harmonious reading of sections 45B and 46 of the Act, we hold that once an appeal under section 45B has been instituted before the Commissioner (Appeals), the statutory remedy thereunder stands duly availed. Its subsequent withdrawal may bring the proceedings before the Commissioner (Appeals) to an end, but it cannot retrospectively convert the prior availment of that remedy into non-availment. Consequently, withdrawal of such appeal does not restore the condition contemplated by the second proviso to section 45B(1), nor does it confer upon the appellant a fresh right to invoke the direct appellate jurisdiction of the Appellate Tribunal under section 46(1) against the same original order. Accordingly, the question is answered in the negative. The direct appeal preferred before the Tribunal, having been instituted after the appellant had already availed the remedy under section 45B before the Commissioner (Appeals), is not maintainable and is, therefore, dismissed.

For clarity, the legal position emerging from the foregoing discussion may be succinctly stated as follows:

i.                    the direct appellate jurisdiction of the Tribunal under section 46(1) is available only where the second proviso to section 45B(1) validly applies;

ii.                   the second proviso applies only where the registered person has not availed the right of appeal under section 45B;

iii.                  institution of an appeal before the Commissioner (Appeals) constitutes availment of the statutory appellate remedy under section 45B;

iv.                 subsequent withdrawal of such appeal may terminate the proceedings before the Commissioner (Appeals), but does not retrospectively undo or efface the fact of its institution and availment;

v.                   such withdrawal, therefore, cannot revive or restore the statutory condition of non-availment prescribed by the second proviso to section 45B(1); and

vi.                 consequently, section 46(1) does not confer a fresh or revived right of direct appeal before the Tribunal against the same original order merely by reason of the subsequent withdrawal or abandonment of the appeal before the Commissioner (Appeals).

 

 

 

-SD-           

(M. M. AKRAM)

JUDICIAL MEMBER

-SD-

(MUHAMMAD NAEEM ASHRAF)

MEMBER

 

 

 

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