Law: Income Tax Ordinance, 2001

Section: 80A,80B,114(2A),118(2A),127,127(3),129,1 65(5),170(4),170(5)(b),218(1)(a),218(2)( a),237

Law: Income Tax Rules, 2002

Section: 73(2DD)

Law: Constitution of Pakistan, 1973

Section: 10A

ORDER
M. M. AKRAM (Judicial Member):---.---

This appeal is directed against the order of the learned Commissioner Inland Revenue (Appeals), CIR(A) dated 09.02.2021 whereby he rejected the application for condonation of delay. In this appeal we are only concerned with filing of appeal through electronically as per the prescribed procedure contemplated in SR0.1315(I)/2020 dated 9th December, 2020. According to the said SRO, if the appeal is filed electronically before the learned CIR(A), the appellant would have been entitled to be heard to decide the appeal in terms of section 129 of the Income Tax Ordinance, 2001 (�the Ordinance�). In the instant case, the appeal along with application for condonation of delay was filed electronically and the learned CIR(A) decided the application without giving an opportunity of being heard to the appellant passed the impugned order in a slip shod manner. The impugned order is not at all a speaking order and cannot be called a �judicial order� within the parameters set up by law. The appellant assailed the impugned order on a number of grounds. The main issue involved in the instant case relates to SR0.1315(I)/2020 dated 9th December, 2020 which provides that an appeal shall be filed in the prescribed manner on IRIS web portal with effect from 01.01.2021. Considering the importance of the matter, the Member Legal, Member Policy, FBR was called upon vide order dated 24.02.2021 to appear before this Court on 25.02.2021 either himself or through Legal Chief and Chief Policy, FBR to assist the Court. On 25.02.2021, the Chief Legal and Secretary (Rules SROs), FBR appeared on behalf of the FBR. Similarly, the Bar members also appeared in the instant case to assist the Court.

2. The contention of the appellant is that the rules prescribed under S.R.O. 1315(I)/2020 dated 9th December, 2020 are ultra vires of the rule-making powers conferred on the Federal Board of Revenue (FBR) under Section 237 read with Section 127(3) of the Ordinance. It was alleged that by virtue of the impugned rules, the FBR has in effect imposed a restriction for filing of appeal electronically before the Commissioner Inland Revenue (Appeals) which is against the substantive provisions of section 127 of the Ordinance and also infringing the fundamental rights and due process of law. It is submitted that this power to legislate on matters relating to filing of appeals was vested in the Federal Legislature only under the Constitution of the Islamic Republic of Pakistan, 1973. As such these rules framed by the FBR are ultra vires and in excess of the delegated powers vested in it. Even otherwise these rules are oppressive, unreasonable and inconsistent with the provisions of the Ordinance. The appellant cannot be deprived from its statutory right of appeal on the basis of technicalities.