TMI Blog1959 (1) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ver to him by the Tribunal to the petitioner who received the same on June 8, 1955. The petitioner filed an application under section 66(1) before the Tribunal. This petition was filed before the Madras Bench of the Tribunal through their advocate, Mr. K. Srinivasan, on July 29, 1955, treating the date of receipt of the order as June 8, 1955, when it was actually received by the petitioner from their advocate, Mr. B.N. Mohanty. This application under section 66(1) was taken up for hearing on December 14, 1955, and was rejected as time-barred. The Tribunal treated the date of receipt as May 23, 1955, the date on which the order was handed over to the advocate of the assessee. Hence this application. The Tribunal in its order observed that the application was filed on July 29, 1955, that the order of the Tribunal was served on May 23, 1955, and that, therefore, the application was barred by limitation. It was also stated in the order that the Tribunal had no power to condone the delay. The assessee's counsel Mr. Mohanty submitted before the Tribunal that its order was received by him and he delayed in sending the same to the assessee and that, therefore, the actual servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Nandaram Hunatram, Talcher, Dt. Dhenkanal. Under rule 34 of the Appellate Tribunal Rules, the Tribunal shall, after the order is signed, cause it to be communicated to the assessee and to the Commissioner. On the strength of the rules quoted above, the learned counsel for the assessee-petitioner contends that the service of the order on Mr. B.N. Mohanty when he was before the Tribunal in another matter on May 23, 1955, is not a valid notice of the order. The order should, according to the said rules, be served on the assessee and, therefore, the learned counsel contends that time begins to run from the date on which the assessee received the order from his advocate. In support of this contention, the learned counsel relied upon a decision of the Patna High Court in the case of Gopiram Bhagwandas v. Commissioner of Income-tax [1956] 30 ITR 8 . In this case a Division Bench of the Patna High Court consisting of Banerji and Choudhary, JJ., held: Section 33(4) of the Indian Income-tax Act, 1922, and rule 34 of the Appellate Tribunal Rules, 1946, clearly indicate the strictness with which notices of the orders passed by the Appellate Tribunal on appeal have to be served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls with recognised agents and pleaders. Under rule 1 of Order III of the Civil Procedure Code: Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying acting, as the case may be, on his behalf. Rule 2 enumerates who are the recognized agents, and is to the following effect: The recognized agents of parties by whom such appearances, applications and acts may be made or done are- (a)persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties; (b)persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the client. The learned counsel also referred to Order XLI, rule 14, and Order XLVIII, rule 2, of the Civil Procedure Code in support of his contention. Order XLI, rule 14, deals with the publication and service of notice of day for hearing appeal. It says: (1) Notice of the day fixed under rule 12 shall be affixed in the appellate court-house, and a like notice shall be sent by the appellate court to the court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the appellate court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice... On the strength of this rule, the learned standing counsel contends that service on pleader is enough. Under Order XLVIII, rule 2, all orders, notices and other documents required by this Code (Civil Procedure Code) to be given to or served on any person shall be served in the manner provided for the service of summons. The learned standing counsel contends that by virtue of this ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a document need not be appended in the case of an appeal under sub-section (2) of section 33 of the Act. Rules 24 and 25 of the Appellate Tribunal Rules deal with the disposal of the appeal when either party does not appear and in the explanation it is stated, in rules 24 and 25 'appear' means appear in person or through an authorised representative. On the strength of these rules the learned standing counsel contends that the lawyer is an authorised representative under the Appellate Tribunal Rules. But rule 32A says: The proceedings before the Tribunal shall not be open to the public. No person except the assessee, his employees, his authorised representative including counsel engaged by him or by the authorised representative, shall without the permission of the Tribunal remain present when an assessee's case is being heard by the Tribunal. Rule 32A clearly makes a distinction between counsel engaged by the assessee and authorised agent when it says authorized representative including counsel engaged by him or by the authorized representative. On a reading of these rules, I am of opinion that a counsel appointed to argue the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by Mr. B.N. Mohanty gave a very wide power and therefore according to the contention of the learned standing counsel, the decision of the Patna High Court does not apply to the facts of the present case. In the vakalatnama filed in the case before us there is the expression taking back documents. But it does not say that the advocate is empowered to receive orders. The Patna decision clearly states that under the Income-tax Act which is a fiscal enactment these rules should be construed strictly and as the vakalatnama filed by Mr. B.N. Mohanty does not authorise him to receive the order it is not possible to hold that the vakalatnama filed by him authorised him to receive the order. The learned standing counsel then relied upon certain decisions in support of his contention that the service on the lawyer is a valid service of the order on the assessee. In the case of Union of India v. Abdul Razak AIR 1956 Pat. 511 it was held: In the case of a railway administered by the Government it is the general manager of the railway who is the person ex-officio authorised to act for and on behalf of the Central Government. Therefore, for purposes of suits involving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of a person who was acting as the authorised representative under a power-of-attorney and not simply as a pleader appearing in a case for a client. It may further be noted that this case deals with only service of a notice and not service of an order which is the subject-matter of rule 34 of the Appellate Tribunal Rules. In the case of Sunder Lal v. Commissioner of Income-tax [1931] ILR 10 Pat. 441; AIR 1931 Pat. 282, which was a case under the Indian Income-tax Act, a Division Bench consisting of Courtney-Terrell, C.J., and James, J., held: Order III, rule 2, does not deal with the liability of the principal to be bound by the acceptance of service by the agent. But in the case of a business, where the business is carried on in the name of the principal by somebody, then whether the principal is or is not resident within the local jurisdiction, the service upon the recognized agent is good service upon him. Service of notice under section 22(2) on the agent is good service if authority to receive it can be implied from the nature of the work carried on by the agent on behalf of his principal and in the case of a recognized agent carrying on business in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged a lawyer at the time of submitting the memorandum of appeal to the Tribunal yet in the form he definitely stated the address to which all communications should be sent and that address was not the address of the lawyer. The lawyer was engaged to argue the appeal. He argued the appeal. The order was not pronounced after close of the arguments on that day. The order was handed over to the lawyer on some other day during the continuance of the circuit of the Tribunal at Puri, simply because Mr. B.N. Mohanty happened to be there in connection perhaps with some other case. Such a handing over of the order cannot be deemed to be a strict compliance with the mandatory rule 34 of the Appellate Tribunal Rules. In the case of Basant Lal Ramjidas v. Commissioner of Income-tax [1932] 11 ILR Pat. 40 it was held: An application for a copy of the order of the Assistant Commissioner of Income-tax is properly within the meaning of section 61-'attendance before an Income-tax Officer'-in connection with the proceedings under the Act and, therefore, a pleader applying for a copy of such order requires an express authorisation in writing by the assessee. An agent who ..... X X X X Extracts X X X X X X X X Extracts X X X X
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