(2) When the President is unable to discharge his functions owing to absence, illness or any other cause, such one of the Members as the President, on the advice of Chief Justice of Pakistan, may by notification, authorise in this behalf, shall discharge the functions of the President until the date on which the President resumes his duties.
8. Term of office: The President or other Member shall hold office as such for a term that is prescribed in the Constitution of Islamic Republic of Pakistan for the Judges of the High Court.
9. Resignation and removal: (1) The President or other Member may, by notice in writing under his hand addressed to the President of Pakistan, resign his office: Provided that the President or other Member shall, unless he is permitted by the President of Pakistan to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
(2) The President or any other Member shall not be removed from his office except by an order made by the President of Pakistan on the ground of proved misconduct or incapacity after an inquiry made by a Judge of the Supreme Court in which such President or other Member had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
(3) The Chief Justice of Pakistan may, by rules, regulate the procedure for the investigation of misconduct or incapacity of the President or other Member referred to in sub-section (2).
10. Salaries and allowances and other terms and conditions of service of President and other Members: The salaries and allowances payable to, and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of the President and other Members shall be the same as that of Judges of the High Court.
12. Financial and administrative powers of President: The President shall exercise such financial and administrative powers over the Benches as may be vested in him under the rules: Provided that the President shall have authority to delegate such of his financial and administrative powers as he may think fit to any Member or officer of the Appellate Tribunal, subject to the condition that the Member or such officer shall, while exercising such delegated powers, continue to act under the direction, control and supervision of the President.
13. Staff of the Appellate Tribunal: (1) The President shall determine the nature and categories of the officers and other employees required to assist the Appellate Tribunal in discharge of its functions and provide the Appellate Tribunal with such officers and other employees as it may think fit.
(2) The officers and other employees of the Appellate Tribunal shall discharge their functions under the general superintendence of the President.
(3) The salaries and allowances and conditions of service of the officers and other employees of the Appellate Tribunal shall be the same as that of judicial staff of High Courts.
14. Jurisdiction, powers and authority of the Appellate Tribunal: Save as otherwise expressly provided in this Act, the Appellate Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable in relation to an appeal against any appealable order mentioned in tax codes contained in Schedule I of this Act.
16. Power to punish for contempt: The Appellate Tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has and may exercise, and, for this purpose, the provisions of the Contempt of Courts Act shall have effect subject to the modifications that- (a) the references therein to a High Court shall be construed as including a reference to the Appellate Tribunal; (b) the references to the Advocate-General shall be construed, in relation to the Appellate Tribunal, as a reference to the Attorney-General.
17. Distribution of business amongst the Appellate Tribunal and its Benches: (1) Where any Benches of the Appellate Tribunal are constituted, the President may, from time to time, by order, make provisions as to the distribution of the business of the Appellate Tribunal amongst the Benches and specify the matters which may be dealt with by each Bench.
(2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench of the Appellate Tribunal, the decision of the President thereon shall be final.
18. Appeals to Appellate Tribunal: (1) Subject to the other provisions of this Act, every appeal to the Appellate Tribunal under this Act shall be filed within three months from the date on which the decision or order sought to be appealed against is communicated to the person aggrieved by the decision.
(2) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such decision or order or any part thereof, file within 45 days of the receipt of the notice a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (1).
(3) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (1) or sub-section (2), if it is satisfied that there was sufficient cause for not presenting it within that period.
(4) Every appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall, except in the case of an appeal preferred by the proper officer or a memorandum of cross-objections referred to in sub-section (2), be accompanied by a fee of two hundred rupees.
19. Procedure and powers of the Appellate Tribunal: (1) The Appellate Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Appellate Tribunal shall have power to regulate its own procedure, including the fixing of places and times of its hearing.
(2) The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery, inspection and production of books of account and other documents; (c) reviewing its decisions; (d) dismissing an appeal for default or deciding it ex parte; and (e) any other matter which may be prescribed.
20. Deposit, pending appeal, of duty demanded or penalty levied: Where in any appeal under this Act, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the federal excise authorities or the customs authorities, as the case may be, or any penalty levied under the Federal Excises Act or the Customs Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied: Provided that where in any particular case, the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interests of revenue.
21. Right of applicant to take assistance of legal practitioner and government to appoint representing officers: (1) A person preferring an appeal to the Appellate Tribunal under this Act may either appear in person or take the assistance of a legal practitioner of his choice to present his case before the Appellate Tribunal.
(2) The federal government may authorise one or more legal practitioners or any of its officers to act as presenting officer and any person so authorised by it may present its case with respect to any appeal before the Appellate Tribunal.
22. Conditions as to making of interim orders: Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an appeal under this Act unless- (a) copies of such appeal and of all documents in support of the plea for such interim order are furnished to the party against whom such appeal is preferred; and (b) opportunity is given to such party to be heard in the matter: Provided that the Appellate Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the appellant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of 14 days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Appellate Tribunal has continued the operation of the interim order.
23. Power of President to transfer cases from one Bench to another: On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the President may transfer any case pending before one Bench, for disposal, to any other Bench.
24. Procedure for deciding the case where the Members of a Bench differ in opinion: If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.
25. Orders of the Appellate Tribunal: (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.
(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub- section (1) and shall make such amendments if the mistake is brought to its notice by any party to the appeal: Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.
(3) The Appellate Tribunal shall send a copy of every order passed under this section to the concerned taxation officer and the other party to the appeal.
26. Exclusion of jurisdiction of courts, etc: On and from the appointed day after deleting section 133 of the Income Tax ordinance, 2001, section 37I of the Sales Tax Act, 1990, section 34A of the Federal Excise Act, 2005 and section 196 of the Customs Act, 1969, no court (except the Supreme Court) shall have, or be entitled to exercise, any jurisdiction, powers or authority in relation to matters in respect of which appeals would lie to the Appellate Tribunal under section 14.
27. Transfer of pending cases: (1) Every suit, appeal or other proceeding pending before any court or other authority or the Income Tax Appellate Tribunal, Customs, Excise and Sales tax Appellate Tribunal, immediately before the appointed day, being a suit, appeal or other proceeding which would have been within the jurisdiction of the Appellate Tribunal, if it had arisen after such day, shall stand transferred on that day to the Appellate Tribunal: Provided that nothing in this sub-section shall apply to any appeal and or reference pending as aforesaid before a High Court.
(2) Where any suit, appeal or other proceeding stands transferred from any court, tribunal or other authority to the Appellate Tribunal under sub-section (1), the Appellate Tribunal may, on receipt of such records, proceed to deal with such suit, appeal or other proceeding, so far as may be, in the same manner as in the case of an appeal under section 18 from the stage which was reached before such transfer or from any earlier stage or de novo as the Appellate Tribunal may deem fit.
(3) Any person, who immediately before the appointed day, is an advocate or authorised representative entitled to practice in any court or other authority or Income tax Appellate Tribunal, or the Customs, Excise and Sales tax Appellate Tribunal and was authorised to appear or to act in any proceedings transferred from the said court, other authority or Tribunal to the Appellate Tribunal under this section shall have the right to appear or to act, as the case may be, before the Appellate Tribunal in relation to the said suit, appeal or other proceeding.
28. Proceedings before the Appellate Tribunal to be judicial proceedings: All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Pakistan Penal Code (45 of 1860).
30. Act to have overriding effect: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act.
31. Power to make rules: (1) The President of Pakistan may, by notification, make rules to carry out the provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) the salaries and allowances and other terms and conditions of service of the President and other Members under section 10; (b) the financial and administrative powers which the President may exercise over the Benches under section 12; (c) the salaries and allowances and conditions of service of the officers and other employees of the Appellate Tribunal under sub-section (3) of section 13; (d) the form in which every appeal to the Appellate Tribunal shall be filed and the manner in which such appeal shall be verified under sub-section (4) of section 18; (e) the rules subject to which the Appellate Tribunal shall have power to regulate its own procedure under sub-section (1) of section 19 and the additional matters in respect of which the Appellate Tribunal may exercise the powers of a civil court under clause (e) of sub-section (2) of that section; and (f) any other matter which has to be, or may be, prescribed by rules under this Act.
(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before both of Houses of Parliaments, while it is in session, for a total period of thirty days which may be comprised in one session, or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
33. Power to remove difficulties: (1) If any difficulty arises in giving effect to the provisions of this Act, the President may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty: Provided that no such order shall be made after the expiry of a period of three years from the appointed day.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.
(Concluded)
(The writers, partners in law firm, Huzaima & Ikram, are Adjunct Faculty at Lahore University of Management Sciences)
Copyright Business Recorder, 2017