NASIR MAHMUD (MEMBER).---Titled miscellaneous application has been preferred at the instance of the applicant, seeking extension of the stay order beyond the statutory period granted by the ATIR vide order passed in M.A. (Stay) No.1508/LB/2025 dated 25.04.2025. However, directions of the Honourable Chief Justice of Pakistan have been received vide letter bearing No.5030/DDJ/PE&CB/PRA dated 29.04.2025 which are as follows:‑
iii) The grant of stay shall be deemed vacated automatically upon the expiry of the legally stipulated period, without requiring any further application.
iv) The Presiding Officer shall not extend stay orders beyond the period stipulated under the law. Non-adherence by judicial authorities will be considered in their performance review.
2. Pursuant to above directions, instant application seeking extension of stay cannot be granted as it is an admitted fact that the legally stipulated period of 90 days has already expired; therefore, in the subsistence of this direction, further extension of stay cannot be allowed.
3. These miscellaneous application is accordingly dismissed.
DISSENTING NOTE:
4. In this case the taxpayer had filed Miscellaneous Application for following grounds:-
1. That the appellant/petitioner filed the above titled appeal before this honorable forum which is pending adjudication.
2. That the appellant/petitioner has already availed stay for 270 days.
3. That the stay lastly granted for 30 days vide M.A (Stay) No.1508/LB/2025 dated 25.04.2025 against the extension and the appeal is still pending adjudication.
4. That the appellant / petitioner has good prima facie arguable case in his favor.
5. That the balance of convenience also lies in favor of the appellant/petitioner and there is very likelihood of success of appeal filed by the appellant/petitioner.
6. That if the department is not restrained from the operation of recovery notice, the appellant/petitioner would suffer irreparable' loss."
5. Though the taxpayer has filed appeal before this Tribunal on 16.05.2024 which is still pending to be fixed.
6. On the other hand, the taxpayer has fulfilled his responsibility to file the appeal and engaged in the hearing of case before this appellate forum. The main appeal has been fixed on 02.10.2024 and sent for re-hearing due to non-functioning of Bench-VI. After that DB-VI has been re-constituted by the Hon ble Chairman vide his order bearing No.F.48-ATP/1-1Q/(Ad)/2025 dated 09.05.2025 and started functioning on 12.05.2025. Now the Miscellaneous Application for stay has been fixed before DB-VI on 22.05.2025 and the main appeal is yet to be fixed before the said Division Bench. On the other hand, owing to huge burden of appeals, the case of the appellant is still pending adjudication and the fixation of hearing of case has not been done so far. In this situation there does not seem to be any fault of the taxpayer and therefore, he cannot be denied of stay against recovery. Moreover, to get refund in case of any recovery done by the department against any tax due which is still sub-judice before this Tribunal if the case goes in favour of the taxpayer. Practically, it is not free from hardship and huge expenses.
7. Though Tax Law prohibits to grant stay upto 90 days, yet Apex Courts have already hold that this Appellate Forum has inherent power to grant stay beyond statutory period where the decision is pending. The reported judgments of Hon'ble Islamabad High Court cited as 2020 PTD 1702 and another case of M/s. Shalimar Recording and Broadcasting Company v. Commissioner Inland Revenue and others, reported as 2019 PTD 2082 and judgment of Hon'ble Peshawar High Court in the case of "CIR v. Syed Adnan Shah and another" cited as 2020 PTD 2151 wherein it has held that direction to issue stay upto a maximum limit is directory and not mandatory.
8. Reliance on my learned respectable Brother on letter bearing
No.5030/DDJ/PE&CB/PRA dated 29.04.2025 issued by Director General, Directorate of District Judiciary of Lahore High Court, Lahore (Annexure-A) is mis-placed while referring against grant of stay in this case. Para iv of the aforesaid letter reads as follows:-
"The Presiding Officer shall not extend stay orders beyond the period stipulated under the law. Non-adherence by judicial authorities will be considered in their performance review".
It is crystal clear from the underlined portion that the matter is to be dealt under the law whereas under the law the 3rd proviso of Section 131(5) of the Income Tax Ordinance, 2001 opens a window and relaxed the condition as enumerated in 2nd Proviso by saying that where an appeal is not decided within the statutory period by the Appellate Tribunal, the stay order under the 2nd Proviso shall not cease to have effect till finalization of the appeal by the Appellate Tribunal.
9. Since serious difference of opinion has arisen, hence, the matter may very kindly be referred to the Hon'ble Chairman for nomination of any third/ refree Member or constituted a Full Bench to resolve the following questions:‑
i. Whether the ATM falls under the administrative jurisdiction of Director General, Directorate of District Judiciary of Lahore High Court, Lahore?
ii. Whether the Director General, Directorate of District Judiciary of Lahore High Court, Lahore is empowered under the law to issue any directions for rejecting grant of stay beyond 90 days to this Tribunal?
iii. Whether the Director General, Directorate of District Judiciary of Lahore High Court, Lahore can issue any instruction to this Tribunal in pursuance of reported judgments of Hon'able High Court cited as 2016 PTD 1702, 2019 PTD 2082 and 2020 PTD 2151 which are still in field and so far not been over-ruled?
iv. Whether in the presence of 3rd Proviso of Section 131(5) of the Income Tax Ordinance, 2001 any directory nature instructions (Annexure-A) overrides the mandatory law and case laws which are still in field?

Order Accordingly