Ashik Garments Ltd. Vs. The Commissioner of Taxes, Dhaka, (Borhanuddin, J.)

Case No: Income Tax Reference Application No. 251 of 2007

Judge: Borhanuddin, J And Sardar Md. Rashed Jahangir, J

Court: High Court Division,

Advocate: Ms. Nurun Nahar, A. A. G.,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Ashik Garments Ltd.

Respondent: The Commissioner of Taxes, Dhaka

Subject: Income Tax Ordinance

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(STATUTORY ORIGINAL JURISDICTION)

Borhanuddin, J

And

Sardar Md. Rashed Jahangir, J

 

Judgment on

13.08.2018

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Ashik Garments Ltd. 

. . .Petitioners

-Versus-

The Commissioner of Taxes, Dhaka

. . .Respondents

Income Tax Ordinance, (XXXVI of 1984)

Section 161(2)

The section 16(12) of the Income Tax Ordinance, 1984 provides that- “The High Court Division shall, upon hearing any case referred to it under section 160, decide the question of law raised thereby and shall deliver its judgment thereon stating the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the court and signature of the Registrar to the appellate tribunal which shall pass such orders as are necessary to dispose of the case in conformity with the judgment.” The language apparently shows mandatory in nature since the section deploys the word "shall" several times but obviously the section opens with the words "The High Court Division shall, upon bearing any case" etc. The pertinent question is that how the High Court Division will decide the question without hearing the party who has caused the reference to be made fails to appear and as such no hearing can take place. When a party who has caused the reference to be made and who is in the position of a plaintiff fails to appear, consequently no hearing can take place, in such a case obligation of deciding the question of law and delivering judgment does not arise. The High Court Division shall upon hearing any case" which directs that there shall be a hearing of the application. It is apparent that before the duty contemplated by Sub-section (2) of Section 161 of the Income Tax Ordinance, 1984 to decide the question of law referred can arise, a hearing of the case must take place. The High Court Division refrains from answering the question of law without any order as to costs.              . . . (2, 5 and 6)

M/S. Dhaka Steel Works Ltd. Vs. The Commissioner of Taxes, 12 BLD 334.

No one appear

. . . For the Applicant

Ms. Nurun Nahar, A. A. G.

. . . For the Respondent

JUDGMENT

Borhanuddin, J: This reference application has been appearing in the cause list for a couple of days with name of learned advocate for the applicant but no one attended. Consequently, no hearing can take place as the assessee-applicant who caused the reference to be made is not attending. In this situation, whether this court is under obligation to decide the question of law referred by the assessee applicant under section 160(1) of Income Tax Ordinance, 1984.

2.             In order to decide the issue, we may profitably quote Sub-section (2) of Section 161 of the Income Tax Ordinance, 1984, which runs as follows:

“2) The High Court Division shall, upon hearing any case referred to it under section 160, decide the question of law raised thereby and shall deliver its judgment thereon stating the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the court and signature of the Registrar to the appellate tribunal which shall pass such orders as are necessary to dispose of the case in conformity with the judgment.”

3.             The language apparently shows mandatory in nature since the section deploys the word “shall” several times but obviously the section opens with the words “The High Court Division shall, upon hearing any case” etc. The pertinent question is that how the High Court Division will decide the question without hearing the party who has caused the reference to be made fails to appear and as such no hearing can take place.

4.             In similar situation Calcutta High Court in the reference application filed by M.M. Ispahani Limited, Calcutta, against commissioner of excess profits tax, West Bengal, under Section 66 of the Indian Income Tax Act, (XI of 1922), reported in 27 ITR 188, held that when a party who has caused the reference to be made and who is in the position of a plaintiff fails to appear, consequently no hearing can take place, in such a case obligation of deciding the question of law and delivering  judgment does not arise. The provision of Sub-section (5) of Section 66 of the Indian Income Tax Act, 1922, as it was, reproduced below:

“The High Court, upon the hearing of any such case, shall decide the question of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the court and signature of the Registrar, to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment.”

5.             On a close scrutiny it appears that language of Sub-section (5) of Section 66 of the Indian Income Tax Act, 1922, and amended Sub-section (2) of Section 161 of the Income Tax Ordinance, 1984, are almost similar and though both the sections used the word “shall” several times but starts with the expression “the High Court Division shall upon hearing any case” which directs that there shall be a hearing of the application. It is apparent that before the duty contemplated by Sub-section (2) of Section 161 of the Income Tax Ordinance, 1984, to decide the question of law referred can arise, a hearing of the case must take place. This view of our finds support in the judgment of Calcutta High Court referred above and also in the case of M/S. Dhaka Steel Works Ltd. Vs. the Commissioner of Taxes, reported in 12 BLD 334.

6.             Under the facts and circumstances of the case and for the reasons stated above, we refrain ourselves from answering the questions of law without any order as to cost.

7.             Accordingly, the reference application is disposed of.

         Ed.