TMI Blog2017 (8) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... ge and will add any assessee at any stage treating this precedent having liability to the assessee under the judgment which has been cited in favour of the assessee. The law has to be assumed for both the sides while refunding or referring to the taxing statute. In that view of the matter, if the imposition of tax is not referred in the taxing statute, it should not apply even in the case of refund. In that view of the matter, for the consistency of law, we are of the opinion that the parties should be continuously joined all throughout proceedings. -Decided against the assessee. - D. B. I. T. A. No. 173 of 2003 connected with D. B. C. W. P. No. 1591 of 2003 - - - Dated:- 10-1-2017 - K. S. Jhaveri And Vinit Kumar Mathur, JJ. For the Appellant/Petitioner : A. Kasliwal For the Respondents : Anuroop Singhi JUDGMENT 1. By way of this appeal, the assessee has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal preferred by the Revenue and set aside the order of the Commissioner of Income-tax (Appeals) which has allowed the appeal preferred by the original assessee (Tahal Consulting Engineers Ltd.) an assessee-firm which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the rectification application under section 254(2) of the Income-tax, Act 1961. Since common issues are involved therefore, while delivering the common judgment, the questions which have been posed for our consideration have been stated above. 5. Counsel for the appellant Mr. A. Kasliwal has taken us to the provision of section 254(2) and contended that in view of the provision of section 254, the Tribunal ought to have corrected the mistake which was apparent of the face on record and ought to have referred the question in favour of the appellant/petitioner and has also taken us to the provision under section 260A and provision of section 2(7) where the assessee is defined and he has contended that in view of sub-clause (1), the assessee includes persons like the petitioner/appellant who is likely to be affected pursuant to the order passed by the authority. He contended that if provision of sections 160(i), 163 and 166 of the Income-tax Act are taken into consideration, the petitioner/appellant should be regarded as agent of the Tahal Consulting Engineers Ltd. Therefore, he contended that the tax liability was on the assessee namely present appellant, State Government an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 2(7) has recognised a deemed assessee to be an assessee which includes a representative assessee. 1.2 Further it is respectfully submitted that section 160 of the Income-tax Act, 1961, has defined the expression 'representative- assessee' which is reproduced hereinbelow for ready reference of this hon'ble court : 'Section 160. Representative-assessee.-(1) For the purpose of this Act, 'representative assessee' means- (i) in respect of the income of a non-resident specified in sub-section (1) of section 9, the agent of the non-resident, including a person who is treated as an agent under section 163 ;' It is respectfully submitted that to bring more clarity the Legislature has defined the expression 'agent' used in the definition of the term representative assessee vide section 163 of the Income-tax Act and the same read as under : 'Section 163. Who may be regarded as agent.-(1) For the purposes of this Act, 'agent', in relation to a non-resident includes any person in India- (a) who is employed by or on behalf of the non-resident ; or (b) who has any business connection with the non-resident ; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentative to take care of all its taxable liabilities in its letter dated July 29, 1997 and place on record as annexure-8. It is respectfully submitted that TCE has rightly not been arrayed as a party as no relief is sought against TCE. Even otherwise these proceedings relate to quantification of tax liability as to which TCE can have no say. 3. That in respect of the contents of para 3 of the preliminary objections it is respectfully submitted that the order dated October 4, 2002 (served upon CA of the assessee on May 28, 2003 viz. after seven months and 24 days) was merely consequential and had only raised and quantified the demand only and as such was not impugned in the writ petition. Further, ID and R also writing to the Income-tax Department on August, 1999 for issue of notices to them in the case. 7. He further contended that the view taken by the Tribunal is just and proper and the appeal is not preferred by the original assessee and assuming without admitting even after the petitioner is concealing it to be that the assessee has contended under section 27, he has not preferred the appeal. He cannot substitute himself for original appellant/petitioner and there c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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