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 |
|
No comments:
Post a Comment