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Writ Petitions Nos. 4450 to 4455 and 4458 of 1985, decided on 11th January, 1986.

---S. 3---Income-tax Act (XI of 1922), S. 66(1)‑‑Income‑tax Ordinance (XXXI of 1979) S. 136(1)---Limitation‑‑Law of limitation, held, is part of procedural law and no one: could claim substantive right in procedure.

‑‑S. 66(1)‑Income‑tax Ordinance (XXXI of 1979), S. 136(1)‑‑Reference to Tribunal‑‑‑Limitation Reference filed before Tribunal long after enforcement of Income‑‑tax Ordinance 1979 and period prescribed for filing said application had not as yet expired on or before commencement of said Ordinance‑ .‑Reference application, held, was required to be regulated by law applicable on day when same was filed and question that it was required to be continued and disposed of under Income‑tax Act, 1922 would not arise‑‑Reference application was distinct and independent proceedings and having been filed within time prescribed under law was not barred by time‑‑Order of Income‑tax Appellate Tribunal, passed with contrary view, declared to be of no legal consequence.

Muhammad Ilyas Khan for Petitioner.

Ali Zafar for Respondent No. 2.

Date of hearing: 19th November, 1985.

---By this order we propose to dispose of Writ Petition Nos. 4450, 4451, 4452, 4453, 4454, 4455 and 4458 of 1985 as common questions of law and facts are involved therein:

2. The Commissioner of Income‑tax, Central Zone, Lahore petitioner herein, had challenged the Impugned order of the income‑tax Appellate Tribunal; by means of petitions under section 136 (2) of the income Tax Ordinance, 1979 (hereinafter called the 'Ordinance'), but subsequently with leave of the Court converted them into writ petitions.

3, The relevant facts in brief giving rise to these petitions are that the Income‑tax Appellate Tribunal, Lahore vide his order, dated 23‑8‑1984 dismissed reference applications filed by the petitioner under section 136 (1) of the Income‑tax Ordinance, 1979 arising out of Tribunal's order, dated 23‑12‑‑1981 on the ground that the same were barred by time because those were filed beyond period of sixty days from the receipt of Tribunal's order. According to him, the provisions of section 66 (1) of the Repealed Income‑‑tax Act, 1922 (hereinafter called the 'Act') which provided sixty days for filing reference applications from the date cat' the communication of Tribunal's order were applicable and not the provisions of section 136 (1) of the Ordinance which extended time to ninety days.

It is significant to mention here, that on 1st July, 1979, the Income‑tax Ordinance, 1979 was enforced, whereby, the Income‑tax Act, 1922 stood repealed. The reasoning advanced by the learned Income‑tax Appellate Tribunal was that on the day the aforesaid Ordinance came into force, the assessees' appeals were pending before the Appellate Assistant Commissioner and disposed of under the provisions of the Repealed Act as such the reference applications arising from the order passed by the Tribunal were required to be filed within the period prescribed under the, Repealed Act. In support of this view the learned Appellate Tribunal pressed into service the provisions of section 166 (2) (i) of the Ordinance, 1979 which contemplated that the proceedings pending on the commencement of the Ordinance before any Income‑tax Court or Tribunal by way of appeal, reference, revision were required to be continued and disposed under the provisions of the Act.

Aggrieved by the aforesaid order of the learned Income‑tax Appellate Tribunal the petitioner has filed these Constitutional petitions in this Court.

4. The precise question, which falls for determination in these cases, is as to whether the provisions of the Repealed Act or of the Ordinance would apply for reckoning the period of limitation for filing reference applications. Admittedly, the reference applications were filed beyond sixty days but within ninety days from the communication of the Tribunal's order.

As noticed above the learned Income‑tax Appellate Tribunal relied on clause (i) of section 166 (2) of the Ordinance to hold that the reference applications were to be continued and disposed of under the repealed Act. The relevant clauses (i) and (j) are reproduced hereunder:‑

"(i) any proceeding pending on the commencement of this Ordinance before any income‑tax authority, the Appellate Tribunal or any Court or Tribunal by way of appeal, reference, revision or prosecution, shall be continued and disposed of as if this Ordinance had not come into force;

(j) where the period prescribed for any application, appeal, reference or revision under the repealed Act, had expired on or before the commencement of this Ordinance, nothing contained in the Ordinance shall be construed as enabling any such application, appeal, reference or revision to be made under this Ordinance by reason only of the fact that a longer period, therefore, is prescribed or provision is made for extension. of time in suitable cases by the appropriate authority."

It is a settled principle of law that law of limitation is part of l procedural law and no one can claim substantive right in procedure. Undoubtedly, the reference applications being distinct proceedings were filed before the Income‑tax Appellate Tribunal, long after the enforcement of Ordinance, 1979 nor the period prescribed for such applications had expired on or before the commencement of the Ordinance, therefore, the reference applications were required to be regulated by the law applicable on the day the same were filed. Since the reference applications were filed long after the enforcement of the Ordinance the question that they were required to be continued and disposed of under the Act did not arise. The reference applications filed by the petitioner were independent proceedings and the time for filing the same would be regulated under the Ordinance, which provided ninety days. Resultantly, we hold that the reference applications were filed within time.,‑We have noticed that the learned Accountant Member of the Income‑tax Appellate Tribunal gave a dissenting note and rightly construed that the provisions of Ordinance whereby the time had been extended to ninety days for filing reference applications, would apply particularly because the Act stood repealed on 1‑7‑1979 when the time for filing reference application had not expired nor such applications were pending on that date before the Income‑tax Appellate Tribunal.

5. We accordingly find that the impugned order of the Income‑tax Appellate Tribunal is based on incorrect interpretation of the relevant C provisions of law and declare the same to be of no legal consequence.

In the result, these petitions ere allowed with no order as to costs.

M.Y.H Petitions allowed.

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