Bangladesh Commerce Bank Ltd. Vs. The Commissioner of Customs, (Borhanuddin, J.)

Case No: Income Tax Reference Application No. 05 of 2004

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

Court: High Court Division,

Advocate: Mr. A. K. M. Shafiuddin, Advocate, Ms. Nurun Nahar, A. A. G.,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Bangladesh Commerce Bank Ltd.

Respondent: The Commissioner of Taxes

Subject: Constitution of Bangladesh.

Delivery Date: 2019-11-26

HIGH COURT DIVISION

(SPECIAL STATUTORY JURISDICTION)

Borhanuddin, J

And

Sardar Md. Rashed Jahangir, J.

 

Judgment on

05.11.2018

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Bangladesh Commerce Bank Ltd.

. . .Applicant

-Versus-

The Commissioner of Taxes

. . .Respondent

Income Tax Ordinance (XXXVI of 1984)

Sections 160(1) and 161(2)

Seven years after filing original reference application an assessee cannot formulate question of law by filing supplementary affidavit—It is the duty of the applicant to set forth in the application the question of law arising out of the order of Tribunal which the applicant require under sub-section (1) of section 160 of the Ordinance to be referred to the High Court Division. Clearly, an application under section 160(1) of the Ordinance should specify the question of law which the applicant considers ought to be referred for decision to the High Court Division. Directions under section 161(2) of the Ordinance are in the nature of ‘mandamus’ and as a general rule such directions will not be issued unless the question of law brought before the High Court Division in any of the modes prescribed by law. There is no scope to formulate question of law by way of filing supplementary affidavit swearing affidavit seven years after submitting original reference application. We cannot, therefore, admit the question of law by the assessee in this court. It is clear that section 5 of the limitation act shall apply only to an application under sub-section (1) of section 160 of the ordinance. By sub-section (6) of section 160 it cannot be construed that after filing original application without referring any question of law, the applicant can formulate question of law by swearing supplementary affidavit after seven years.               . . . (3)

Constitution of Bangladesh. 1972

Article 83, 109 and 110

Income Tax Ordinance

Section 160(1)

Article 109 of the Constitution relates to Superintendence and control of this Division over courts and tribunal subordinate to it and Article 110 relates to transfer of cases from sub-ordinate courts to High Court Division. These Articles of the constitution has no manner of applicability in this case. Article 83 of the constitution as referred by the learned advocate relates to merit of the case but since no question of law brought before the High Court Division as prescribed by section 160(1) of the Ordinance, the instant reference application is not maintainable in the eye of law.                                                      . . . (3)

Mr. A. K. M. Shafiuddin, Advocate

. . . For the Applicant

Ms. Nurun Nahar, A. A. G.

. . . For the Respondent

JUDGMENT

Borhanuddin, J: This application has been preferred by the applicant under section 160 of the Income Tax Ordinance (hereinafter stated ‘the ordinance’) in the year 2004 without referring any question of law. Today when the matter is taken up for delivering judgment, learned advocate for the applicant filed two supplementary affidavits. The supplementary affidavit sworn on 11.07.2011 contained three questions of law. Another supplementary affidavit sworn on 04.11.2018 clarifying factual and legal position for not formulating question of law in the original reference application.

2.                   Preliminary question is that whether income tax reference application filed by the applicant without formulating any question of law can be treated as an application under section 160 of the ordinance. It will be profitable to quote relevant provisions of law from the ordinance for filing reference application before the High Court Division, which are as follows:

Section 160. Reference to the High Court Division:

“(1) The assessee or the Commissioner, may within ninety days from the date of receipt of the order of the Appellate Tribunal communicated to him under section 159, by application in the prescribed form, accompanied, in the case of an application by the assessee, by a fee of (two thousand taka), refer to the High Court Division any question of law arising out of such order.”

(2)……………………………

(3)……………………………….

(4) On receipt of the notice of the date of hearing of the application, the respondent shall, at least seven days before the date of hearing, submit in writing a reply to the application; and he shall therein specifically admit or deny whether the question of law formulated by the applicant arises out of the order of the Appellant tribunal.

(5) If the question formulated by the applicant is, in the opinion of the respondent, defective, the reply shall state in what particulars the question is defective and what is the exact question of law, if any, which arises out of the said order, and the reply shall be in triplicate and be accompanied by the documents which are relevant to the question of law formulated in the application and which were produced before the Deputy Commissioner of Taxes, the Inspecting Joint Commissioner, the Appellate Joint Commissioner (or the Commissioner Appeals) or the Appellate Tribunal, as the case may be in the course of any proceedings relating to any order referred to in sub-section (2)(a) or (b).

(6) Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to an application under sub-section (1).

Section 161. Decision of the High Court Division:-

(1)    Where any case has been referred to the High Court Division under section 160, it shall be heard by a bench of not less than two judges and the provisions of section 98 of the Code of Civil Procedure 1908 (V of 1908), shall, so far as may be, apply in respect of such case.

(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)    ……………………………..

(4)    ……………………………..

(emphasis supplied by us).

3.                   On perusal of the above sections, it is plain that it is the duty of the applicant to set forth in the application the question of law arising out of the order of Tribunal which the applicant require under sub-section (1) of section 160 of the ordinance to be referred to the High Court Division. Clearly, an application under section 160(1) of the ordinance should specify the question of law which the applicant considers ought to be referred for decision to the High Court Division. Directions under section 161(2) of the  ordinance are in the nature of ‘mandamus’ and as a general rule such directions will not be issued unless the question of law brought before the High Court Division in any of the modes prescribed by law.  We are of the view that under the ordinance, there is no scope to formulate question of law by way of filing supplementary affidavit swearing affidavit seven years after submitting original reference application. We cannot, therefore, admit the question of law by the assessee in this court. Mr. A. K. M. Shafiuddin, learned advocate tried to impress us by quoting sub-section (6) of section 160 of the ordinance that this Division has power to condone the delay if question of law formulated at any time subsequent to filing original reference application. From the language of sub-section (6) of section 160 of the ordinance it is clear that section 5 of the limitation act shall apply only to an application under sub-section (1) of section 160 of the ordinance. By sub-section (6) of section 160 it cannot be construed that after filing original application without referring any question of law, the applicant can formulate question of law by swearing supplementary affidavit after seven years. Learned advocate argued that Article 109 and 110 of the constitution empowers this Division to accept the question of law formulated subsequently by the applicant. Article 109 of the Constitution relates to Superintendence and control of this Division over courts and tribunal subordinate to it and Article 110 relates to transfer of cases from sub-ordinate courts to High Court Division. These Articles of the constitution has no manner of applicability in this case. Article 83 of the constitution as referred by the learned advocate relates to merit of the case but since no question of law brought before the High Court Division as prescribed by section 160(1) of the ordinance, we are of the view that instant reference application is not maintainable in the eye of law.

4.           In such premises above, we are inclined to reject the reference application as being incompetent.

5.           The connected rule is hereby discharged.

6.           The registrar of the High Court Division is hereby directed to take step in accordance with section 161(2) of the ordinance.

Ed.