TMI Blog1976 (8) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. x x x 4. x x x 5. x x x 6. Sh. S.R. Vaish, AAC, Jaipur authorised representative ITAT, Jaipur 5-7-1971 3. Similar notification has been issued authorising Shri N.N. Bhatia to act as a Junior authorised representative vide the Notification No. 1534 of the Central Government, issued in the Gazette of India dt. 22nd June, 1974. 3.1 In order to appreciate the rival submissions on the point, it may be convenient to state the requirements of law on the question of representation by the rival sides before the Tribunal. Sec. 252 of the IT Act, 1961 provides for the constitution of he Tribunal by the Central Government. Sec. 255 of the IT Act, 1961 provides the procedure to be followed by the Tribunal, sub-s. (5) of the aforesaid section is in the following terms: "(5) Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings." In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orised representative" means a person authorised by the assessee in writing to appear on his behalf being: (i) a person (related) to the assessee in any manner, or a person (regularly) employed by the assessee, or (ii) any officer of a Scheduled Bank with which the assessee maintains a current account or has other regular dealings; or (iii) any legal practitioner who is entitled to practise in any civil Court of India; or (iv) an accountant; or (v) any person, who has passed any accountancy examination recognised in this behalf by the Board; or (vi) any person who has acquired such educational qualifications as the Board may prescribe for this purpose; or (via) XXX XXX XXX 3.4. It will be immediatly noted from the aforesaid provisions that the () persons who may be "authorised representatives" under the aforesaid sub-section are not covered in the entry be the category of persons mentioned in s. 29 of the Advocates Act (XXV of 1961) which reads as follows: "Subject to the provisions of this Act and any Rule made thereunder there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely Advocates." Out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. We have seen that the power to regulate its own procedure conferred on the Tribunal by sub-s. (5) of s. 255 is "subject to the provisions of this Act". This being so, the Tribunal Rules could have done no better, but to note the provisions of s. 288 in the context of an authorised representative in relation to an assessee. But in the context of an authorised representative in relation to an IT authority, who is a party to any proceeding before the Tribunal, there is no specific provision in the IT Act, 1961. Clause (b) of sub-r. (ii) of r. 2 of the Income-tax (Appellate Tribunal) Rules, 1963, therefore, makes detailed provisions on this point. This sub-clause does not give the right to the IT authority, who is a party before the Tribunal, to appoint an authorised representative on its behalf. Such power has been vested by the aforesaid sub-cl. (b) in the Central Government. The sub-rule requires that the Central Government should: (i) appoint a person as authorised representative for such IT authorises, who are parties to any proceedings before the Tribunal, to appear, plead and act on their behalf in such proceedings. (ii) notify the name of such person or persons i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as their representative for s. 29 of the Advocates Act, 1961 made it obligatory on them to appoint only such persons to represent them as were enrolled Advocates. In the absence of a privity between the authorised representative of the Department and the Department Authority, the Departmental authority in fact went un-represented before the Tribunal. When the IT Act, 1961 was silent as to how the IT authorities will be represented before the Tribunal, the general provisions of the Advocates Act came into operation read with the various provisions of the CPC and in particular rr. 1, 2 and 6 of Order III of the CPC. The Tribunal could not, therefore, have made the r. 2(ii)(b) in the present form, as it was contrary to the specific provisions of the Advocates Act. Sec. 33 of the Advocates Act, 1961 did not come to help the validity of r. 2(ii)(b), because the said rule was not equivalent to a law for the time being in force. 5. The aforesaid submissions of the learned counsel for the assessee were opposed by the learned Departmental Representative Shri S.R. Vaish. He submitted that the IT Act was a self contained Code and when s. 255 authorised the Tribunal to frame Rules and to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in accordance with the Advocates Act, 1961. Apart from the Advocates, as many as 6 other categories of persons have been listed in sub-s. (2) of the s. 288 of the IT Act, 1961 who may be authorised representative of an assessee. The Tribunal exercises its powers under sub-s. (5) of s. 255 of the IT Act, 1961 and while doing so, it has to bear in mind the special requirements and problems of the IT Act, 1961 and if in excercising the powers vested in it, it provided that the representation by the Departmental Authorities before the Tribunal would be done by a person appointed by the Central Government it did not make any departure from the principles of representation as enshrined in s. 288 of the IT Act, 1961. It is an established principle of law today that the IT Act is, in itself, a self contained Code and as such if guidance can be had regarding representation by the Department within the four corners of the IT Act, itself, there was no need for the Tribunal to have travelled beyond the confines of the IT Act. The validity of the said r. 2(ii)(b) cannot, therefore, in our opinion be successfully challenged on this ground alone namely, that it is not consistent with s. 29 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d rule appears before us on behalf of the Department, we have to treat him as the authorised representative of the Department. We thus find that so far as the appointment of Shri Vaish and Shri Bhatia is concerned, there is nothing wrong or irregular about it. There are regular Gazette notifications appointing them. The only defect which Shri B. Khetan has been able to point out with reference to these notifications is that they purport to have been issued in terms of the IT (Appellate Tribunal) Rules, 1946, whereas they should have been issued in terms of IT (Appellate Tribunal) Rules, 1963. May be that this lapse is unfortunate, but it is certainly not fatal, for we have the authority of the Hon ble Supreme Court in the case of Hazarmal Kthialal vs. ITO, 41 ITR 12 (SC), to the effect that the exercise of a power would be referable to a jurisdiction which conferred validity upon it and not to a jurisdiction under which it would be nugatory. That the Central Government had the jurisdiction to appoint Shri S.R. Vaish and Shri N.N. Bhatia as Departmental Representative in terms of r. 2(ii)(b) of the IT (Appellate Tribunal) Rules, 1963 is not in doubt. It is also true that the IT (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtmental Representative with reference to each individual proceeding before the Tribunal, it is not understood as to how the aforesaid rule is invalid. After all the validity of the Rule has to be tested against the statute, which authorised the rule making. We have already been seen that there is nothing in the IT Act to prohibit representation before the Tribunal in such a manner. No law has been shown to us which overrides the provisions of the IT Act and makes the appointment of an authorised representative of the Central Government in the aforesaid manner illegal. We have already seen that s. 29 of the Advocates Act, 1961 does not override the specific provisions of the IT Act, and when, in exercise of the powers vested by the said Act, the Tribunal formulates the Rules governing the conduct of proceedings before it, the said rules have to be read as part of the IT Act itself, and as such their validity or otherwise has to be examined only with reference to the provisions of the IT Act and no other Act. There being nothing in the said Act, which prohibits the framing of the Rule in the aforesaid manner, we are not prepared to accept the contention of the assessee on this accou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
