SHAHID JAMIL KHAN, JUSTICE:---.---
This judgment deals, mainly, with extension of interim relief/stay granted by Commissioner (Appeals), after expiration of statutory period. Statutory period for interim relief by Commissioner (Appeals) is 60 days under Section 128(1AA) of Income Tax Ordinance, 2001 (Ordinance of 2001), 30 days under Section 45B(1C) of the Sales Tax Act, 1990 (Act of 1990) and 30 days under Section 33(1A) of Federal Excise Act, 2005 (Act of 2005).

This Court is, consistently, being approached in constitutional jurisdiction for extension of interim relief and direction to decide the appeal. The petitions, being decided hereby, can be divided in two categories; first, where no order is passed by Commissioner (Appeals) on expiration of the statutory period and second, where stay is declined by it. Orders in latter category, are appealable before Appellate Tribunal Inland Revenue (Appellate Tribunal), where appeals are usually disposed of with a direction to decide appeals, after granting interim relief for a specified period. If Commissioner (Appeals) fails to decide appeals within the period of interim relief, this Court is approached again, in constitutional jurisdiction, for extension of interim relief and a direction to decide appeal.

2. It has almost become a practice that this Court extends the interim relief, beyond statutory period, invoking the principle for administration of justice, actus curiae neminem gravabit, i.e., the act of Court shall prejudice no one , in absence of alternate remedy.

It appears that this practice is being misused. The statutory period for interim relief, in respective provisions of Federal Taxing Statutes, ibid, is prescribed as an exception, only in cases where taxpayer faces undue hardship. The general rule is that the tax due is paid before filing of appeal [Section 127(2) of Ordinance of 2001]. The period, prescribed for the interim relief/stay, in essence, enjoins a duty upon the Commissioner (Appeals) to decide the appeal within the statutory period. Keeping the appeal pending beyond the statutory period for interim relief would frustrate the intent of Legislator. The delay, however, may be due to unnecessary adjournments by or on behalf of the taxpayer or due to inaction of the appellate forum.

3. The principle, actus curiae neminem gravabit can be invoked only if delay in deciding the appeal is on the part of appellate forum (Court). Taxpayer cannot be a beneficiary of its own inactions, while taking unnecessary adjournments and not pursuing for early decision of appeal through applications for early hearing.

4. In this backdrop, facts of this and connected petitions (W.P. Nos.1523, 1988, 2458 and 5065 of 2022) are examined. The captioned petition is filed for inaction on the part of Commissioner (Appeals), for not deciding appeal within the time directed by the Appellate Tribunal, whereas connected petitions are for direction to Commissioner (appeals), on expiry of statutory period, to decide appeal and extension of interim relief beyond statutory period.

Chief (Legal), FBR, was called for addressing the situation on administrative side. He apprised that on directions in earlier writ petitions, the procedure before Commissioner (Appeals) has been structured by inserting Rules from 76 to 76O in Chapter XII of the Income Tax Rules, 2002 (Rules of 2002) through Notification SRO 1315(I)/2020 dated 09.12.2020 and corresponding amendments have been brought in Sales Tax Rules 2006 (Rules of 2006) by inserting Chapter XIV-C through Notification SRO 277(I)/2018 dated 05.03.2018.

Confronted that writ petitions are still being filed before this Court, learned Assistant Attorney General apprised that in pursuance of a decision by the Appellate Tribunal, the Commissioner (Appeals) is now entertaining the applications for extension of stay beyond statutory period. He has read following part from instructional letter dated 12.10.2021:-

3. In order to avoid unnecessary hazards of litigation as detailed supra, I am directed to advise that:-

i. Coercive measures until case has passed the test of appeal at the level of Commissioner IR (Appeals) may be avoided. Moreover, in order to utilize collective wisdom, a committee comprising of Senior Commissioners IR headed by Chief Commissioner IR may be constituted at formation level to deliberate on the cases before according approval for coercive measures.

It is also apprised that all Commissioners are restrained from pursuing recovery proceedings till first appellate stage is exhausted. The explanation is not satisfactory because the instructions are administratively binding under Section 214 of the Ordinance of 2001 but can be withdrawn at any time, unless it is part of law that till first appellate stage the coercive measures for recovery shall not be taken.

5. Learned counsel for the FBR submits that in some cases the applications for stay are moved even in absence of any notice for coercive measures. In response, learned counsel for the petitioner submits that application of stay is moved as a precaution because notice for attachment of business accounts are issued to bank managers, without resorting to procedure under Section 138 of the Ordinance. This assertion could not be denied, as Rule 210B has been inserted in the Rules of 2002, which allows to bypass procedure under Section 138 for invoking of provision under Section 140. Vires of this rule are already challenged in another petition, however, bypassing of the Section 138 has already been declared illegal by another learned Single Bench of this Court in judgment Mst. Fouzia Razzak v Federal Board of Revenue and others (2021 PTD 162). Until this judgment holds field the respondents are bound to comply with the decision.

6. This court is compelled to believe that FBR is unable to control the situation administratively, hence it needs to be addressed through this judgment.

There is no cavil that jurisdiction is always conferred, upon the courts and quasi judicial forums, by the Legislature, and restriction on time for granting interim relief cannot be exceeded under normal circumstances. However, the Constitutional Courts have created an exception by invoking the principle for administration of justice and good conscience, actus curiae neminem gravabit, i.e., the act of Court shall prejudice no one . This principle is enshrined by August Supreme Court of Pakistan in Malik Tariq Mahmood and others v Ghulam Ahmed and others (PLD 2017 SC 674), Khushi Muhammad through L.Rs. and others v Mst. Fazal Bibi and others (PLD 2016 SC 872), Zakaria ghani and 4others v Muhammad Ikhlaq^ Memon and 8 others (2016 CLD 480) and Messrs Lanvin Traders, Karachi v Presiding Officer, Banking Court No.2, Karachi and others (2013 SCMR 1419).

In Tariq Mehmood case purpose of Section 24 of Punjab Pre-emption Act, 1913 was expounded to hold that a preemptor must have in his pocket one-third of the sale price of the property sought to be pre-empted while approaching the Court. If Court by mistake did not pass the order for deposit then reasonable time fixed through a subsequent order cannot be further extended, despite having power under proviso, which would harm the vendee for courts omission. In Zakria Ghani case, the august Court held, Now it is clear that there is no conceivable way by which the auction purchaser can be blamed for the act of the court in not mentioning there serve price. In Khushi Muhammad case, despite dissent, consensus is on the rationale of the principle of actus curiae neminem gravabit, which envisages to save a litigant from wrong or prejudice caused by an act or omission of the court.

Supreme Court of India, in Amarjeet Singh and others v. Devi Ratan and others (AIR 2010 SC 3676), held, No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed.

7. The enshrined law, ibid, shows that an affected litigant, by act or omission of the Court, is to be rescued, but a litigant cannot be benefited for its own wrong act or omission. This Court, by extending interim relief beyond the statutory period, in every case would obliterate the intent of the Legislature, if delay is on the part of taxpayer. For deciding whether delay is attributable to taxpayer, this Court cannot enter into factual inquiry in constitutional jurisdiction, therefore, safer recourse would be that the taxpayer should move an application for extension of stay/interim relief, beyond statutory period, before Commissioner (Appeals). On receiving the application, the Commissioner (Appeals) shall first determine the cause of delay. Needless to say that delay on the part of taxpayer would disentitle it of the discretionary relief and extension application would be rejected through speaking order in writing. Otherwise, the taxpayer would be entitled to the extension of E interim relief based on principle of actus curiae neminem gravabit. However, reasons for delay, if not attributable to taxpayer, shall be brought to the notice of FBR, for its administrative cure.

8. The order for rejection of application and of declining interim relief is appealable before the Appellate Tribunal. The Appellate Tribunal is also not expected to grant interim relief as a practice and in routine. Findings of facts by Commissioner (Appeals) need to be given F weightage, unless proved otherwise before it through unrebuttable evidence or record. The order of granting interim relief must be reasoned and speaking.

If appeal is not decided within the time for which interim relief is granted by the Appellate Tribunal, its extension, during pending appeal before Commissioner (Appeals), would again require determination of delay, which can neither be done by Appellate Tribunal nor this Court in constitutional jurisdiction. Since Commissioner (Appeals) alone can determine or attribute delay, therefore, the application for extension of interim relief granted by Appellate Tribunal, beyond statutory period, shall be moved before it and rest of the procedure shall be followed, as directed hereinabove.

This and connected petitions are disposed of with the directions.

Order accordingly.