Background: The petitioner, Sogra Begum, is a pardahnashin lady and a housewife. She was assessed for tax under section 82(2)/93 of the Income Tax Ordinance, 1984 on total income of Taka 11,61,555.00 for the assessment year 1987-88. The petitioner was aggrieved by the assessment order and preferred an appeal before the Additional Commissioner of Taxes (Appeal) who allowed the appeal in part and deleted a substantial amount to the tune of Taka 10 lakh and odd. However, the department being aggrieved by the aforesaid order of the Additional Commissioner of Taxes (Appeal) took a Second Appeal before the Taxes Appellate Tribunal.
Issue: Whether the petitioner could file a reference application under section 160 after being unsuccessful with an application under section 173 of the Income Tax Ordinance.
Argument: The petitioner argued that she was misled by ill advice of her lawyer to file an application for rectification before the Tribunal under section 173 of the Ordinance as the mistake was apparent on the face of the record.
Judgment: The High Court rejected the application for condonation of delay in filing the reference application. The court held that the petitioner’s choice to file under section 173, and the subsequent failure to explain the delay in filing under section 160, barred her from seeking relief under the latter section. The court reasoned that the petitioner at her peril had chosen to file an application under section 173 of the Ordinance rather than to file a reference application before this Court under section 160 of the Ordinance. It is now well settled that he who chooses the sword must perish by the sword. In that view of the matter, the petitioner must not be allowed to fall back on section 160 of the Ordinance after being unsuccessful in Miscellaneous Application No. 58 of 1998.
Comments: This case emphasizes the importance of choosing the correct legal remedy and the consequences of pursuing one over the other. It also underscores the significance of explaining each day’s delay when filing an application for condonation of delay.