| Citation(s) |
|---|
| 1991 SLG 162 1991 SLD 162 1991 PTD 946 (1991) 64 TAX 101 |
Income Tax Appellate Tribunal
Income Tax Appeals Nos. 558(IB), 629(IB) and 26(IB) of1988-89, 20(IB), 63(IB), 75(IB), 87(IB), 88(IB), 89(IB) and90(IB) of 1989-90, 89(IB), 90(IB), 91(IB) and 92(IB) of1990-91, decision dated: 20-07-1991
FARHAT ALI KHAN, CHAIRMAN, JUNEJO M. IQBAL, ACCOUNTANT MEMBER AND SAYED AMJAD HUSSAIN BOKHARI, JUDICIAL MEMBER
Abdul Hamid, D.R. for Appellants. Mir Ahmad Ali, G. Abbas Chatha, M. Aslam Anwar, Hafiz Muhammad Idrees and Amir Alam Khan for
Respondents
Income Tax Appeals Nos. 558(IB), 629(IB) and 26(IB) of1988-89, 20(IB), 63(IB), 75(IB), 87(IB), 88(IB), 89(IB) and90(IB) of 1989-90, 89(IB), 90(IB), 91(IB) and 92(IB) of1990-91, decision dated: 20-07-1991
FARHAT ALI KHAN, CHAIRMAN, JUNEJO M. IQBAL, ACCOUNTANT MEMBER AND SAYED AMJAD HUSSAIN BOKHARI, JUDICIAL MEMBER
Abdul Hamid, D.R. for Appellants. Mir Ahmad Ali, G. Abbas Chatha, M. Aslam Anwar, Hafiz Muhammad Idrees and Amir Alam Khan for
Respondents
Law: Income Tax Act, 1922
Section: 10
Law: Wealth Tax Act, (XV of 1963)
Section: 24&26
Law: Income Tax Ordinance, 1979
Section: 134(5),134(5)
(a) Words and phrases--- ---- Word "shall" whether mandatory or directory in nature---Test. To see whether the word "shall" is mandatory or directory in nature, law on the interpretation of statutes has laid down the following tests in this regard: (1) The intent of legislature cannot be gathered from the use of the words "shall" or "may" as this is not conclusive and the words are interchangeable; (2) It has to be seen whether permissive interpretation is possible; (3) Whether any consequence of the non-compliance has been provided; (4) Whether any injury or prejudice has been caused to the opposite party because of the non-compliance of the provision; (5) The importance of the subject-matter of the provision and the effect of the non-compliance on the subject matter is also to be seen; (6) What is the real intent of the legislature; (7) Whether the provision and its compliance is of substance or mere of form and convenience; and (8) Whether there is any absolute prohibition. (b) Income Tax Ordinance (XXXI of 1979)---S. 134(5)---Wealth Tax Act (XV of 1963), Ss. 24 & 26---Word "shall" used in S.134(5), Income-tax Ordinance, 1979 and Ss. 24 and 26 of the Wealth Tax Act, 1963 is directory in nature---Appeal not filed in the prescribed form---Effect. The word "shall" used in section 134(5) of the Ordinance and sections 24 and 26 of the Wealth Tax Act is directory in nature as intent of the legislature cannot be gathered from the use of the words "shall" and "may" which are used interchangeably. Further, no consequence for non-compliance with the provisions has been laid down. And no injury or prejudice to the opposite party is caused if the appeal is not filed in the prescribed form, as long as due intimation is sent to it in the manner laid down under the Income-tax Tribunal Rules. Besides, compliance with these provisions is a matter of form and convenience for the appellate authorities rather than prejudicially affecting the respondents. And lastly, there is no absolute prohibition for non-compliance with these provisions. The word "shall" as used in subsection (5) of S. 134 of the Ordinance and the Rules- framed thereunder, in sections 24 and 26 of the…
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