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 dela