1. This order will dispose off both these applications as they raise common questions regarding powers of the State Government in prescribing a particular form for appearance of sales tax practitioners and others before sales tax authority and the amount of fees required to be paid on the document authorising such appearance.
2. Special Civil Application No. 1102 of 1965 is at the instance of Shri L. M. Mahurkar, who is a sales tax practitioner. He appeared before the first respondent, i.e., Sales Tax Officer, Circle No. 2, Nagpur, in two assessment cases of his client and filed two powers-of-attorney, of which document No. 2 at page 10 of the paper-book is a specimen. He had affixed a court-fee stamp of Rs. 2 on each of these powers-of-attorney as provided by the Bombay Court-fees Act. The first respondent recorded in his order sheet of 8th November, 1965, that the powers-of-attorney filed by the petitioner were not in the prescribed form and directed the petitioner to file powers-of-attorney as prescribed in form No. 43-A and rule 66-a of the Bombay Sales Tax Rules, 1959. He also directed that the said authorisations should bear a general stamp of Rs. 3.30 as provided by the Bombay Stamp Act. In view of these defects, which according to the first respondent had to be rectified, he did not accept the petitioner's power-of-attorney filed in the case. An order to that effect was formally passed by the first respondent on 8th November, 1965. The petitioner in this petition challenges the legality of this order.
3. Special Civil Application No. 1131 of 1965 is at the instance of Shri Gokulprasad Agarwal, who is an advocate of this court. He is enrolled under the Advocates Act, 1961. This petitioner appeared before the Assistant Commissioner of Sales Tax who is impleaded as the first respondent in this petition, the client having empowered him to appear and plead on his behalf and a vakalatnama was filed before that authority. On this vakalatnama he affixed a court-fee stamp of Rs. 2. The first respondent in this case also required the petitioner to file an authority in Form No. 43-A as prescribed in the Bombay Sales Tax Rules, and wanted the petitioner to file that authority bearing a general stamp of Rs. 3.30 as provided in the Stamp Act.
4. Correspondence ensured between the petitioner and the authority and ultimately by a letter dated 1st October, 1965, the first respondent informed the petitioner that he must company with the directions already given. He was also performed that unless the petitioner compiled with the said directions the petitioner would not be allowed to appear, plead and act on behalf of his client. The petitioner also, therefore, challenges these orders and demand of general non-judicial stamp to be affixed on the authorisation.
5. Section 71 of the Bombay Sales Tax Act, 1959(Bombay Act No. 51 of 1959), makes provision for appearance before any authority in the proceedings under the Act and that section is as follows :
'71. (1). Any person, who is entitled or required to attend before any authority in connection with any proceeding under this Act, may attend - (a) by a relative or a person regularly employed by him, or (b) by a legal practitioner or chartered accountant, who is not disqualified by or under sub-section(2), or (c) by a sales tax practitioner who possesses the prescribed qualifications and is entered in list which the Commissioner shall maintain in that behalf, and who is not disqualified by or under sub-section(2),
if such relative, person employed, legal practitioner, chartered accountant or sales tax practitioner is authorised by such person in the prescribed form and such authorisation may include the authority to act on behalf of such person in such proceeding.
(2) The Commissioner may by order in writing and for reasons to be recorded therein disqualify for such period as is stated in the order form attending before any such authority any legal practitioner, chartered accountant or sales tax practitioner -
(i) who has been removed or dismissed from Government service, or (ii) who is being a legal practitioner or charted accountant is found guilty of misconduct in connection with any proceeding under this Act by an authority empowered to take disciplinary action against the members of the profession to which he belongs, or (iii) who being a sales tax practitioner is found guilty of such misconduct by the Commissioner. (3) No Order of disqualification shall be made in respect of any particular person unless he is given a reasonable opportunity of being heard. (4) Any person against whom any order of disqualification is made under the section may within one month of the date of communication of such order appeal to the Tribunal to have the order cancelled. (5) The order of the Commissioner shall not take effect until one month of the making thereof or when an appeal is preferred until the appeal is decided. (6) The Commissioner may at any time suo motu or on application made to him in this behalf revoke, any order made against any person under sub-section (2) and thereupon such person shall cease to be disqualified.' As will appear from sub-section (1) above, authorisation has to be in a prescribed form. The word 'prescribed 'is defined in section 2(21) of the Act and means prescribed by rules. Rules have been made for this purpose and the relevant rules are rule 66 and rule 66-A. Under rule 66, a sales tax practitioner maintained under section 71, if he holds the requisites qualifications maintained in clause (a), (b) or (d) of sub-rule (1). Under sub-rule (2) of rule 66, the Commissioner is required to maintain a list of all the sales tax petitioner. The legislature itself has indicated the categories of persons who may attend before any authority in connection with the proceeding under the Sales Tax Act, and these are : (a) a relative or a person regularly employed by the assessee, (b) a legal petitioner or chartered accountant who is not disqualified under sub-section (2) of section 71, (c) a sales tax petitioner who possesses the prescribed qualifications and who is entered in the list which the Commissioner has to maintain on the behalf
6. Rule 66-a, which purports to prescribe the form of authority under section 71, is as follows :
'66-a. Form of authority under section 71. - The authority to attend before any sales tax authority in connection with any proceeding under the Act shall be in From 43-a.'
7. The form which is a part of this rule is to be found at pages 163 and 164 of the Bombay Sales Tax Rules, 1959. It is necessary to reproduce the whole of this form as there is a dispute as to the validity of certain parts the form. That form is as follows :-
'FORM 43-A.(See rule 66-A of the Bombay Sales Tax Rules, 1959).Authority under section 71 of Bombay Sales Tax Act, 1959.I,....... who am/is...... of..... who is Registered dealer holding aRegistration Certificate No..... dated.... and also a Licenseddealer/Authorised dealer/Recognised dealer/Commission Agent holding apermit/holding Licence/Authorisation/Recognition/Permit hereby appointShri..... who is my relative/a person regularly employed by me/thesaid... /a legal practitioner/a Chartered Accountant/a Sales TaxPractitioner to attend on my behalf/behalf of the said.... before....(state the Sales Tax Authority) in the proceedings (describe theproceedings) before the said (state the Sales Tax Authority) and toproduce accounts and documents and to receive on my behalf/behalf of thesaid... any notice or document issued in connection with the saidproceedings and to take all necessary steps in the said proceedings. Thesaid Shri.. is also hereby authorised to act on my behalf/behalf of thesaid... in the said proceedings.I agree/the said......... agrees to ratify all acts done by the saidShri............... in pursuance of this authority.Place............. Signature.............Dated............. Status................ACCEPTANCEI........ do hereby state that I am a relative of.......... /a personregularly employed by......... /a legal practitioner/a CharteredAccountant/a Sales Tax Practitioner duly qualified under section 71 ofthe Bombay Sales Tax Act, 1959, and that I accept the aforesaidappointment.Place.............Dated............. Signature.............----------------------------------------------------------------------- State here the name of the dealer as entered in the certificate of registration.
State here status such a proprietor, partner, director, manager, secretary or officer in charge.
Note :- Strike off which is not applicable.'
8. Now, the contentions of the petitioner in each of these cases are twofold :
(1) That the Sales Tax Authorities cannot insist that their authorisation entitling the petitioners in either case to attend must contain all the conditions and terms in the prescribed form and must form part of the contract of engagement between the assessee and the petitioner if the petitioner has agreed only to attend, i.e., to appear and plead.
(2) That the authorisation amounts to a mukhtyarnama or a vakilpatra, for which court-fee is prescribed under the Bombay Court-fees Act in item 12 of Schedule II, and, therefore, the Sales Tax Authorities are not entitled to require either of the petitioners to file their authorisation stamped as a power-of-attorney as defined in section 2(r) of the Bombay Stamp Act on a non-judicial stamp of Rs. 3.30.
9. We shall deal with each of these contentions serially.
10. It will be seen that the words used in section 71 by the legislature in making provision for appearance before any authority in the proceedings are 'entitled or required to attend'. In the substantive section the word 'appear' or 'plead' has not been used. By a subsequent amendment which was added by Maharashtra Act 29 of 1965, these words, i.e. 'and such authorisation may include the authority to act on behalf of such person in such proceedings' have been added to sub-section (1) of section 71.
11. It is thus obvious that the statutory requirement of the authority to attend, as authorised in the prescribed form, was incorporated in the statute for the first time in 1965. Though forms were prescribed for authorising attendance on behalf of an assessee in the previously existing rules and there were different forms, according as the person attending was a relation or a sales tax practitioner or a chartered accountant, it does not appear that a form was prescribed even then for a legal practitioner being authorised to appear for an assessee. We are now concerned with the statute after its amendment in 1965, there being consequential alterations in the rules as well as the form which we have extracted above. There was some debate at the Bar as to whether a legal practitioner, i.e., an advocate, entitled to practice under the Advocates Act, could be required to file his authorisation in a prescribed form. It is not now seriously disputed that an advocate's right to practice under section 30 of the Advocates Act, 1961, is not intended to be controlled under the Sales Tax Act even before the sales tax authorities. The ambit of this right conferred on an advocate under the Advocates Act is also no longer in doubt or dispute. A reference in this respect may be made to the decision of the Supreme Court in Aswini Kumar Ghose and Another v. Arabinda Bose and Another. As held by the majority, 'the practice of law in India generally involves the exercise of both functions of acting and pleading on behalf of the litigant parties, and when an Act confers upon an advocate a right to practice in any court, it is legimate to understand the expression as authorising him to appear and plead as all as to act on behalf of the suitor in all courts..' The question that was canvassed before the Supreme Court was with respect to the right of an advocate enrolled under section 2 of the Supreme Court Advocates Practicing in High Courts Act, 1961, practicing on the original side of the Calcutta High Court. It is therefore clear that so far as a legal practitioner who is an advocate having the right to practice as an advocate under the Advocate Act is concerned, he has a right to appear, plead and act if so authorised by his client. Section 71 of the Sales Act requires and Authorisation to be in a certain form, and if an advocate is engaged to appear for an assessee before any authority under the Sales Tax Act appearing under such authorisation will be in order. But so far as an advocate is concerned, it cannot be disputed that an authority given by the assessee, authorising such advocate to attend on his behalf must include a right to appear, plead and act on behalf of the assessee, and it is because the Advocates Act gives the advocate concerned the right to practice before such authority.
12. The next question is whether persons enumerated under section 71, other than advocates, if authorised to attend on behalf of an assessee, will be entitled to appear and plead on behalf of such assessee in these proceedings merely on the strength of an authorisation 'attend ' as indicated in the prescribed form. Even a casual persual of Form 43-A, which we have reproduced above, will show that under the first part of the form assessee appoints the person concerned, who may be relative or a person regularly employed by him, or a legal practitioner or a chartered accountant or a sales tax practitioner, to attend on his behalf before the sales tax authorities. Then there is the word 'and' and a further authority, if agreed to between the parties, can also be given to do several acts such as production of accounts, documents, etc., to receive notice of tax, or to take necessary steps in those proceedings, all of which would amount in law to 'acting ' on behalf of the assessee. Now, it seems to have been understood by the respective sales tax authorities in these two petition that in all cases where an assessee authorities any person under section 71, sub-section (1), he must necessarily also authorise him with the authority to produce accounts and to receive notice or documents and to take all other steps on behalf of the assessee, and without such further authorisation a contract of employment cannot be considered adequate to permit representation of the assessee by such other person. We do not think that there is any warrant for such construction either under the section or the rule or the from prescribed for such authorisation. The new portion added to sub-section (1) of section 71 makes it abundantly clear that an authority to act an behalf of the assessee may be included in the authorisation to attend. This must postulate that in given in circumstances it may not be so included. In other words, it is entirely a matter of contract between the assessee and the person should include an authority to act on behalf of such assessee. This position also does not now seem to be seriously disputed.
13. Therefore, the third contention which now survives for consideration is whether in the case of persons authorised other than an advocate, authority to attend includes the authority to appear and plead on behalf of an assessee. We put it to learned counsel appearing for the department to indicate the ambit of the words 'to attend ' if it were not to include the rights to appear as well as to plead an behalf of the assessee, but did not get any elucidation at the Bar.
14. A similar provision is to be found in the law relating to income-tax. Section 288(1) of the Income-tax Act, 1961, which is corresponding to section 61 of the Indian Income-tax Act of 1922, makes provision for appearance of authorised representative. Sub-section (1) of section 288 of the Act provides that any assessee who is entitled or required to attend before any income-tax authority or the Appellate Tribunal in connection with any proceedings under this Act otherwise than when required under section 131 to attend personally for examination on oath or affirmation, may, subject to the other provisions of this section, 'attend' by an authorised representative. The marginal headings both of section 288(1) of the Income-tax Act and section 71 of the Bombay Sales Tax Act indicates the topic of legislation as 'appearance before any authority in proceedings.' It would be legitimate to pay attention to this marginal note as an aid to construction of the section when the issue is what could be the intention of the legislature in the use of the language contained in this section of the Bombay Sales Tax Act. If any authority is needed for making such use legitimate, we may only refer to two decisions of this court in Taherally Mahomedally v. Chanabasappa and Secretary of State v. Bombay Municipality. The topic of legislation in section 71, therefore, is to make provision for appearance on behalf of an assessee before the authority constituted under the Act. It could hardly be contended that as attendance on behalf of the assessee could mean physical appearance in substitution for or along with the assessee, there can hardly be any necessity to make a provision for such physical attendance. Unless, therefore, the person authorised is to effectively assist in the conduct of any proceeding before any authority, the mere presence, albeit on behalf of the assessee, could not have been intended to be secured by this provision. In the Calcutta High Court an analogous question came up for consideration in Braja Behari Sen v. Arun Coomar Bose. The question there was regarding the destination between the right to plead as distinguished from acting, and in considering an ambit of these two powers the Division Bench observed as follows :
'I(Das J) shall refer to the provisions of the Code after I have explained the meaning of the words 'to appear, to act, and to plead'. The Code draws a clear destination between these expressions. The words 'to appear', in my opinion, mean 'to be present in court and to represent the client in the previous stages of the litigation where the presence of the client in court by himself or his representation is necessary'. The words 'to act in court' mean 'to take on behalf of the client in court, or in the office of the court necessary steps in the course of the litigation so that his case may be properly laid before the court'. The words 'to appear', in my opinion, mean 'to have audience before the court'. The material provisions which govern the rights of legal practitioners, either to appear or to appear or to act or to plead in court, are to determined in the light of the provisions contained in order III of the Code as also the Civil Rules and Orders framed under the powers conferred on this court by clause 37 of the Letters Patent.'
15. It is not disputed that the power to plead is not included and is something different from the power to act. The learned counsel appearing for the state invited our attention in this respect to a decision of this court in A. S. Patel v. National Rayon Corporation. The learned Chief Justice on behalf of the court observed that pleading, which is a species of the right of the audience, could not be included in application or act in or to any court.
16. When section 71 itself makes a destination between a authorisation to attend a further authorisation to act, which can be in favour of another person, by the assessee, it must clearly be intended that, in order to appear and plead for audience before the authority, it is enough for the assessee to authorise the person concerned to attend, and the authority to attend must therefore include the right to appear and plead. Otherwise, it would be a meaningless formality to authorise a person merely to attend and yet be of no assistance whatever on behalf of the assessee in the conduct or progress of the proceedings. We must therefore hold that even in the case of persons other than a legal practitioner or an advocate who are authorised by an assessees but not to act unless the authorisation also specifically includes the authority to act.
17. It is therefore clear that an authorisation to be given by an assessee in proceedings under the Sales Tax Act could either be an authority to attend, which must imply a right to appear and plead, or it may in addition include an authority to act, which, however, is dependent on the individual terms of agreement or engagement between the parties.
18. One of the sides issues arising as to the nature of the authorisation and the form it should have, which has emerged for consideration is whether a term like the second paragraph in the power-of-attorney filed in Special Civil Application No. 1102 of 1965 can or cannot be a proper authorisation under the Act. Under the particular term in document No. 2 in this petition the sales tax practitioner was free to remain absent if his fees were not paid before the first heating in that case or if the case was taken outside, and similar other terms as to consequences of non-appearance of the authorised person. It is urged on behalf of the department that the department that the right to appear before sales tax authority is a right given by the Act, and under the Act a rule has been made as to the form of authorisation in which the right to appear is to be indicated. When the rule read with the section says that the authorisation shall be in the prescribed form, it is contended, no other matter can legitimately appear in that form. We do not see how an assessee and the person authorised can be prevented from incorporating in a single document all the terms of engagement between them regarding appearance before the sales tax authorities. If the logic of this contention is carried to this extreme position, it would be difficult to work out rights of parties by mere insistence that the agreement shall be only according to the letter of the form and nothing outside or beyond that may be included. After all the prescribed form is only indicative of the nature of the agreement which must subsist between the parties, who authorise anybody to appear on behalf of an assessee. But neither the section nor the rules imply a further power of the rule-making authority, or for the matter of that, any officer of the department to insist that no other term of the contract of engagement shall form part of the document which evidences the contract. We therefore do not see how objection could be raised by any authority to inclusion of other terms of engagement between the assessee and the authorised person concerned, merely because a form comes to be prescribed. Such construction would unjustifiably limit the text of the agreement between the parties so far as authorisation is concerned.
19. This takes us to the next question as to proper fee to be paid on such authorisation is writing. The view of the department seems to be founded on the provisions of the Bombay Stamp Act, and, in particular item 48 of Schedule I of that Act which requires a power-of-attorney as defined in section 2(r), when used for any purpose other than those enumerated in sub-clauses (a) to (f). In such case it should bear a non-judicial stamp of Rs. 3.30 for each person authorised.
20. Now, a power-of-attorney as defined in section 2(r) of Bombay Stamp Act includes any instrument empowering the specified person, but does not include any instrument chargeable with a fee under the law relating to court-fees for the time being in force. The contention of the petitioner is that the Bombay Court-fees Act makes a provision the requisite amount of court-fee to be paid on a mukhtyarnama or a vakalatnama under item 12 of Schedule II of the Court-fees Act, and the court-fee to be paid on such document is only Rs. 2. Therefore, according to the petitioner the proper fee to be paid is court-fee and court-fee is Rs. 2 only if it is mukhtyarnama or a vakalatnama which is required to be filed. Now the authorisation is a power-of-attorney within the meaning of both the Acts is not disputed. Similarly, a mukhtyarnama or a vakalatnama is also a power-of-attorney.
21. The next question is whether a person authorised under section 71 of the Sales Tax Act under a mukhtyarnama or a vakalatnama to file it before an authority under the Sales Tax Act such as a Sales tax Officer, Assistant Commissioner of Sales Tax or a Commissioner of Sales Tax, it could said that such mukhtyarnama or vakalatnama is represented for the conduct of the case as if represented before any civil or criminal court other than the High Court, or to any Revenue Court, or to any Collector, or to a Magistrate or other executive officer. If authorities under the Sales Tax authority can be equated to any of those enumerated authorities in the second column of item 12 of the Bombay Court-fees Act, then there is no doubt that the proper fee to be paid would be by way of court-fees of Rs. 2.
22. It was urged on behalf of the petitioner that a Sales Tax Officer or an Assistant Commissioner of Sales Tax is a revenue court within the meaning of the Court-fees Act, and therefore the case squarely came within the ambit of entry 12 of the Second Schedule to the Bombay Court-fees Act. There is no doubt that a view was once held by this court that the Sales Tax Officer would be revenue court. For this proposition reliance was placed on two decisions of this court, namely, State v. Nemachand and an earlier decision reported as In re Punamchand on which the later decision was founded. The learned counsel for the department has disputed this contention. He has relied on one of the recent decisions of the Supreme Court in Jagannath Prasad v. State of Uttar Pradesh. In that case the question was whether a Sales Tax Officer under the U.P. Sales Tax Act could be said to the court for the purpose of section 195 of the Code of Criminal Procedure. After examining several authorities including the decision of this court, it was then held that a Sales Tax Officer is not a court within the meaning of section 195(2) of the Code Procedure through Sales Tax Officers have certain powers which are similar to the powers exercised by the courts. A full Bench decision of this court In re Punamchand and a later decision of this Court in State v. Nemchand were referred to in paragraph 7 of the judgment of the Supreme Court, and yet the decision was contrary to what was decided to the earlier case. It must therefore held that the view taken by the earlier decision of this court was impliedly overruled by this decision of the Supreme Court. But the learned counsel for the petitioner has brought to our notice another decision of the Supreme Court reported as Lalji Haridas v. State of Maharashtra, which is a majority decision, and the majority has taken the view that proceeding before an Income-tax Officer under section 37 of the Indian Income-tax Act of 1922 were governed by section 195(1) (b) of the Code of Criminal Procedure. The earlier decision of the Supreme Court in Jagannath Prasad v. State of Uttar Pradesh has been distinguished in the majority view.
23. The learned counsel for the petitioner, however, has taken yet another position in support of the contention that the proper fee payable is the court-fee under the Court-fees Act. His case is that, even if a Sales Tax Officer or authority is not a revenue court, such officer is certainly an executive officer, and when a vakalatnama or mukhtyarnama comes to be filed before such an executive officer as provided in the Court-fees Act, then the fee payable under the Court-fees Act may be Rs. 2 and not that under the Stamp Act. According to the petitioner an officer of the Sales Tax Department such as the Sales Tax Officer are required to be appointed under section 20 of the Sales Tax Act. Under sub-section (1) of that section the State Government has to appoint a Commissioner of Sales Tax and to assist this Commissioner is execution of his functions under the Act the State Government is empowered to appoint other categories of officers such as additional Commissioners, Deputy Commissioners and Assistant Commissioners, Sales Tax Officers and other officers. The function of such officers is executive in character. The executive power of the state vests in the Governor and has to be exercised by him either directly or through officers subordinate to him in accordance with the provisions of the Constitution. This provided in article 154 of the Constitution. The argument is that the duty to realise public revenue of the State - and sales tax is one of the heads of revenue - is entrusted to the executive officers of the State, and though in exercise of that power or in execution of that function they are required to decide certain questions by judicial approach or in a judicial manner, these officers are none the less officers of the State. In support of this proposition the learned counsel relies on certain observations in the decision of the Supreme Court in Smt. Ujjam Bai v. State of Uttar Pradesh. At page 1666, paragraph 118, Justice Hidayatullah, speaking for the court, observed as follows :
'The taxing departments are instrumentalities of the state. They are not a part of the legislature; nor are they part of the judiciary. Their functions are the assessment and collection of taxes and in the process of assessing taxes, they have to follow a pattern of action, which is considered judicial. They are not thereby converted into courts of civil judicature. They still remain the instrumentalities of the State and are within the definition of 'State' in article 12. In this view of the matter, their actions must be regarded, in the ultimate analysis as executive in nature, since their determinations result in the demand of tax which neither the legislature nor the judiciary can collect. Thus, the actions of these quasi-judicial bodies may be open to challenge on the ground of breach of fundamental rights.'
24. A part of this passage has been quoted in the decision of the Supreme Court in Jagannath Prasad v. State of Uttar Pradesh on which the learned counsel for the department relied in pointing out the distinction between the functions of officers of a court, or a court and other functionaries. Though acting in a judicial manner or required to act judicially, they are not courts but executive functionaries. We are therefore satisfied that the authorities under the Sales Tax Act, such as Sales Tax officer or the Commissioner of Sales Tax and persons appointed to assist him are the executive officers. If they are executive officers, then it is clear that a vakalatnama or mukhtyarnama filed in the case before them is required to be stamped with the court-fee stamp of Rs. 2 under the Court-fees Act and not under the Bombay Stamp Act.
25. We must therefore hold that the second contention of the petitioner is also well-founded and the authorisation in each of these cases, which are in the form of a power-of-attorney, or mukhtyarnama or vakalatnama as the case may be, is not required to bear a non-judicial stamp of Rs. 3.30 under the Bombay Stamp Act, but shall bear court-fee stamp of Rs. 2 as provided in item 12 of the Second Schedule to the Bombay Court-fees Act.
26. The result therefore is that each of the petitions is allowed and the petitioners are entitled to costs against the respondents.
27. Petitions allowed.