CTA Case No. 2783 (Resolution)

REPUBI,fC OF THE PHILlPPlNEB cur:w.r OF TAX APPEALS QUEZON" CITY ' SANTOS co, f or and in behalf of MOYONG ALIDANI and OMk~ ALONZOi Claima nts, , Petitioner-t - versus - .C. T . A. CASE NO . 2783 THE ACTING COMMI SSIONER OF CU S TOMSi Respondent . X- - - - - - - - - - - - - X RE S 0 L UT I 0 N Respondent� s "Ans we r vlith Motion To Dismiss" was filed with this Court on May 18, 1976. It as- s ails our jurisdiction to entertain petitioner's appeal on the ground that it was filed beyond the 30-d ay period prescribed in Section 11 of Rep ub- lie Act Noo 1125. In support of his motion, respondent alleges as follows : "5. The petition for review dated Ap ril 1 1 1976 a nd r e ceived by this Court on th~? same date is fil ed beyond the reglementary period of 30 days. Ev e n a s stated in the petition, copy o f the decision appealed from dated No- vember 21 1 1975 was received by petitioner on November 2~, 1975. A motion for reconsi- deration was filed on November 28, 1976 or after a pe rio d oi 4 days. � On January 301 1976 an Order of the Commissioner of Cus- toms was i ss ued denyi ng p etitione r's motion �or reconsideration, copy of which was re- ceived by petitioner on March 5, 1976. The insta~t petition for revi ew was filed on April lt 1976 or after a period of 27 � days

RESOLUTION - CTA C SE NO . 2783 - 2- hence, the petition was2filed beyond the 30- day period or after a period of 31 days." (ppo 2.... 3, Ans\ver with Motion To Dismiss, pp . 36- 37~ CTA rec . ) . However, in his opp o s ition to the motion to dismiss, petitioner claims that respondent is merely availing of a legal technicality9 He contends and argues that he was not aware when the Order of the Commis s ione r denyin g his request f or reconsidera tion was received; and that the date of receipt o~ saio Order of d enial, which� is March 5, 1976, was a mere calculation on his part since the said date of receipt was not recorded . We cannot accept petitioner ' s repudiation of the verified allegations conbained in his petition for .revi ew. If_ th e allegatioh relative to the date of receipt of t he Order denying h is motion f or recon- sideration is inaccurate and uncertain, then he should not have admitted unde r oath the aforesaid dat es ; otherwise petitioner could easily disregard, ignore, and viola t e the fundamental rules of proce- dure and give credence t o his conflicting allegations. / ~e cannot sanction such a norm of conduct . Thus, it \vas held: "The ob j ect of the pleadings being to draw lines of battle between the litigants and

RESOLUTION CTA CASE NO . 2783 - 3- to ,indicate fairly the nature of the claims or defens es of both par t i es, a party canno t subsequently, take a position contradictory to , or inconsistent with, hi~ pleadings, as the facts thE!re.in admitted are to be taken as true for the purpose of the actioh ,." (The Mentholatum Co ,. Inc . v . Mangaliman, et al. , 72 Phil~ 524 , 529 citing Sutherland's Code Pleading, Practice and Forms, Sec .. 83 ; 46 CJ, Sec . 121, pp,.l22-124~) The facfs alleged in the petition for review clearly show that on November 24, 19751 petitioner received the decision of respond�ent Commis s ioner . of Customs wh ich affirmed the deci�sion of the Col- lector of Customs in Seizure Proceedings N0 4 14492 ; on November 28t 1976 , or fo~r (4) days after such rec eipt, he filed a motion for reconsideration; on ~ch 5, 197 6 , he received the Order of the Com- missioner of Customs denying his motion for recon- � sideration; and on April 1, 1976 or after the lapse of twent y - seven ~27 ) d~ys from receipt of said or- der, he filed his appeal to this Court. Counting the period of four (4) days that elapsed from receipt by petitioner of respondent!s decision to the filing of his motion for reconsideration and the period of� twenty-seven (27) days from re- ceipt by him of the order of denial to the filing of the appeal in this Court, givea a total period of 31 days for perfecting his appeal . This is be-

RESOLUTION _ CTA CASE NO. 2783 - 4- yond the 30-day period required under SecG 11 of Republic Ac t No. 1125.. (See Campania Maritima VS 0 The Acti ng Commissioner of Customs, CTA Case No .. 2492, October 14, 1975.,) Thus., our Supreme Court held as follows: "Under Section ll of Rep ublic P.ct Noo 1125, any person adversely affected by a de- cision, or ruling of the Collector of Inter- nal Revenue , may file an appeal in the Court of Tax Appeals within 30 days after the re- ceipt of such decision or ruling. In the case at bar, since petitioners had filed their � appeal (petition for review and refund) be~ yond the aforementioned 30-day period, the respondent Court of Tax Appeals had acquired no jurisdiction to entertain said appeal, and the d i sm issal of the same was proper .. 11 (Allison Jo Gibbs and Esther K.. Gibbs, . petitioners vs~ The Collector of Internal Revenue and Court of Tax Appeals .r respondents, L-13453, �Feb- ruary 29 , 1960, 107 Phil . 232)o \1./HEREFORE, petitioner' s appeal to this Court is hereby dismissed for lack of jurisdiction, with- out pronouncement as to costs. SO ORDERED . Quezon City, September 29 1 1976 .. / /E~Q,I~~ Wv~ ', R o ALV Z /l Presiding Jud co~R///O//AQ~HIN ~d; AMANTE ILLER ~ssociate Judge As s oci e Judge