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Sita Ram Gupta Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petition No. 621 of 1981
Judge
Reported in(1982)29CTR(All)107; [1982]137ITR819(All); [1982]10TAXMAN75(All)
ActsEstate Duty Act, 1953 - Sections 83; Estate Duty Rules, 1953 - Rule 41; Estate Duty (Amendment) Act, 1958; Indian Income Tax Act, 1922 - Sections 61(3)
AppellantSita Ram Gupta
RespondentUnion of India (Uoi) and ors.
Excerpt:
- - act, 1922, had been made against the petitioner, but on the consideration that the petitioner was not qualified to appear in estate duty proceedings on account of his failure to fulfil the qualifications required by section 83 read with rule 41 of the act......in this behalf, represent him for the purpose of section 83, provided-(i) such person is an income-tax practitioner as defined in clause (iv) of sub-section (2) of section 61 of the income-tax act; (ii) he has at any time before the commencement of the estate duty (amendment) act, 1958 (xxxiii of 1958), appeared before any income-tax authority in his capacity as income-tax practitioner; and (iii) he is not disqualified to represent an assessee in any income-tax proceeding by reason of any direction made under sub-section (3) of section 61 of the income-tax act.' the word 'income-tax practitioner' talked of in rule 41 is not defined by the rules, and the rules relegate us to the definition of the word as contained in clause (iv) of sub-section (2) of section 61 of the indian i.t......
Judgment:

C.S.P. Singh, J.

1. The petitioner passed his B.Com. (Commerce) from Bundelkhand University in the year 1978. Thereafter, he started practice before the I.T. authorities. It transpires that the petitioner sought to appear in an estate duty case relating to the estate of Smt. Kesharbai of Jhansi. The Asst. Controller of E.D., Agra, by order dated 31st August, 1981, informed the petitioner that under instructions from higher authorities he would not be allowed to appear in that case. The petitioner has filed the present petition challenging this order. In the counter-affidavit filed by the Department, the stand has been taken that the petitioner was not qualified to appear in estate duty cases, and the impugned order was passed on this consideration. Section 83 of the E.D. Act sets out the persons, who are entitled to appear before the authorities in connection with proceedings under the Act. Five categories of persons are entitled to appear: (1) a relative of the accountable person, (2) a person regularly employed by the accountable person, (3) a legal practitioner, (4) chartered accountants, and (5) any other person having such qualification as may be prescribed. It is admitted that the petitioner does not come under the first four categories. He rests his case on the fifth category, as he contends that he is an I.T. practitioner, and as such entitled to appear. We have seen that Section 83 requires us to fall back upon the Rules for finding out the other persons who can appear. It is necessary to extract this rule at this stage : '41. Qualification of certain persons to appear as authorised representatives.--Any person may, if authorised by the person accountable in writing in this behalf, represent him for the purpose of Section 83, provided-

(i) Such person is an income-tax practitioner as defined in Clause (iv) of Sub-section (2) of Section 61 of the Income-tax Act;

(ii) he has at any time before the commencement of the Estate Duty (Amendment) Act, 1958 (XXXIII of 1958), appeared before any income-tax authority in his capacity as income-tax practitioner; and

(iii) he is not disqualified to represent an assessee in any income-tax proceeding by reason of any direction made under Sub-section (3) of Section 61 of the Income-tax Act.'

The word 'income-tax practitioner' talked of in Rule 41 is not defined by the Rules, and the Rules relegate us to the definition of the word as contained in Clause (iv) of Sub-section (2) of Section 61 of the Indian I.T. Act, 1922. Section 61(2)(iv) of the Indian I.T. Act, 1922, defines the word 'income-tax practitioner' in the following terms :

'(a) any person who, before the 1st day of April, 1938.....attendedbefore an income-tax authority on behalf of any assessee otherwise than in the capacity of an employee or relative of that assessee;

(b) any person who has passed any accountancy examination recognised in this behalf by the Central Board of Revenue ; or

(c) any person who has acquired such educational qualifications as the Central Board of Revenue may prescribe for this purpose.'

The petitioner does not meet the test set out in Sub-clauses (a) and (b) of Clause (iv). He has sought to bring his case under Sub-clause (c). Rule 46 of the Rules framed under the 1922 Act sets out the educational qualifications prescribed by the CBR for purposes of Sub-clause (c) of Clause (iv) of Sub-section (2) of of Section 61 of the Indian I.T. Act, 1922. One of the qualifications prescribed is a degree in commerce from an Indian University incorporated by any law for the time being in force. It was not disputed that the petitioner holds a degree in commerce from an Indian University. Thus, the petitioner is an I.T. practitioner as defined in Section 61(2)(iv) of the Indian I.T. Act, 1922. The question, however, arises as to whether this would be sufficient for purposes of Rule 41 and Section 83 of the E.D. Act.

2. We have already extracted Rule 41 of the E.D. Rules. It will be noticed that Sub-rules (i) and (ii) refer to an income-tax practitioner. Sub-clause (iii) goes on to state that an I.T. practitioner should be such as is not disqualified to represent an assessee in any I.T. proceeding by reason of an order passed under Section 6(2)(iii) of the 1922 Act. Although the word 'and' appears only between Clauses (ii) and (iii), it is futile to contend that an I.T. practitioner would be entitled to appear in estate duty cases even though he is disqualified under Clause (iii). Such a contention would destroy the utility of Sub-clause (iii) and permit a disqualified practitioner to appear in (E.D.) cases. This could not have been the intention of the Legislature. Thus, Clauses (i) and (iii) have definitely to be read together in order to ascertain as to whether an I.T. practitioner is entitled to appear in E.D. cases. Counsel for the petitioner has conceded that in cases where an I.T. practitioner was disqualified by virtue of an order under Section 61(3) of the Indian I.T. Act, he would not be entitled to appear before E.D. authorities solely on the footing that he fulfils the requirements of Rule 41(i). It has, however, been contended that the restriction set out in Clause (ii) of Rule 41 should not be read into cases covered by Clause (i) of Rule 41. We are not inclined to agree with this contention. Both Clauses (i) and (ii) relate to income-tax practitioners, and if the purpose of Clause (ii) had been other than restricting the scope and ambit of Clause (i), it would not have found a place in Rule 41, for, in case a purpose other than a restrictive purpose is assigned to Clause (ii) of Rule 41, it becomes redundant as the field of I.T. practitioners is fully covered by Clause (i) of Rule 41.

3. Counsel for the petitioner urged that the word 'and' can be read as 'or', and if two interpretations of a taxing statute are possible, the meaning which favours the subject should be accepted by the court.There can be no quarrel with these propositions. But it is not possible to mould the language of a statute when it is clear and unambiguous, by resort to interpretative devices. The language of Rule 41 is amply clear and admits of no doubt. In order that a person may be qualified under Rule 41, he must be an I.T. practitioner, who has appeared before any I.T. authority as an I.T. practitioner before the Estate Duty (Amendment) Act of 1958, and further he should not be a practitioner, who is not disqualified under Section 61(3) of the Indian I.T. Act, 1922. The qualifications set out in the various clauses of Rule 41 are cumulative in nature. The petitioner was, thus, not entitled to appear before the E.D. authorities at the time when the impugned order was passed.

4. Counsel for the petitioner also contended that no opportunity as contemplated by the proviso to Sub-section (3) of Section 61 of the Indian I.T. Act, 1922, was given to him before passing the impugned order. The argument is wholly misconceived. The Asst. Controller passed the impugned order not on the ground that an order under Section 61(3) of the Indian I.T. Act, 1922, had been made against the petitioner, but on the consideration that the petitioner was not qualified to appear in estate duty proceedings on account of his failure to fulfil the qualifications required by Section 83 read with Rule 41 of the Act. The order passed by the Asst. Controller appears to be correct. The petition is accordingly dismissed.

5. A prayer has been made for the grant of a certificate for leave to appeal to the Supreme Court. We, however, do not feel that it is a fit case for grant of leave. The prayer for leave is refused.


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