P.V.B. Rao, J.
1. The petitioner M/s. Nandram Hunatram files this petition under Section 66(3) of the Indian Income-tax Act, 1922 praying the Court to require the appellate, Tribunal to treat his application under Section 66(1) of the Act as made within the time allowed under subsection. (1).
2. The petitioner filed an appeal before the Income-tax appellate Tribunal, Patna Bench, which was numbered as I.T.A. No. 8251 of 1953-54 relating to the assessment year 1948-49. The said appeal was dismissed on 3-5-55. The order of dismissal of the appeal was handed over to Mr. B.N. Mohanty, Advocate, who appeared and argued the appeal on behalf of the assessee-petitioner before the Tribunal, on 23.5.55, on which day also he happened to be at Puri, perhaps in some other case, where the Tribunal was sitting. Mr. B.N. Mohanty sent this order handed over to him by the Tribunal to the petitioner who received the same on 8-6-55. 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. Srinivasam on 29.7.55 treating the date of receipt of the order as 8.6.55 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 14.12.55 and was rejected as time-barred. The Tribunal treated the date of receipt as 23.5.55, the date on which the order was handed over to the Advocate of the assessee. Hence this application.
3. The Tribunal in its order observed that the application was filed on 29.7.55; that the order of the Tribunal was served on 23.5.55 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 service, of the order was on the day on which the assessee received the same, The Tribunal repelled this contention observing that the arguments had absolutely no force and finally observed that the counsel received the order on behalf of the assessee and he was empowered to do so and that in the opinion of the Tribunal the service of the order was on the date on which the assessee's counsel received it.
4. Mr. B.N. Mohanty, the learned counsel for the assessee-petitioner contends that the Appellate Tribunal erred in rejecting the application filed under Section 66(1) as time-barred; that Rule 34 of the Appellate Tribunal Rules, 1946 was not strictly complied with by the Tribunal in handing over the appellate order to Mr. B.N. Mohanty, the advocate who appeared for the assessee and argued the appeal before the Tribunal and that according to Rule 34 the order ought to have been sent to the assessee. Consequently the contention of the learned counsel is that the period of 60 days ought to have been counted from the date on which the assessee received the order of the Tribunal. He further submits that as far as the filing of an application under Section 66(1) is concerned, it is absolutely necessary that the assessee should have with him the order of the Tribunal in order to enable him to state to the Tribunal in his application for reference the questions which arise from the order of the Tribunal.
5. Under Section 33 Clause (1) of the Income-tax Act,
'Any assessee objecting to an order passed by an Appellate Assistant Commissioner under Section 28 or Section 31 or to an order passed by the Inspecting Assistant Commissioner or Commissioner under Section 28 may appeal to the Appellate Tribunal within 60 days of the date on which a copy of the order is received by him.'
and under Clause (3):
'An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner, and shall, except in the case of an appeal referred to in Sub-section (2), be accompanied by a fee of one hundred rupees.'
Under Rule 22 of the Indian Income-tax Rules, 1922,
'An appeal under Section 33 or 33B to the Appellate Tribunal shall be in the following form:' and one of the columns of the form is: 'Address to which notices may be sent to the appellant.'
In that column the assessee gave the address as 'Nandram 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 above 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 23.5.55 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. Commr. of Income-tax, B. and O. : 30ITR8(Patna) . In this case a Division Bench of the Patna High Court consisting of Banerji and Choudhury, 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 on the assessecs. It is incumbent that such an order is communicated to the assessee or can be said to be communicated to him in law.'
In this case, an appeal by an assessee was heard by the Appellate Tribunal on March 25, 1955, and orders thereon were passed on March 31. A copy of the order was sent to the assessee's lawyer who received it on April 7. The assessee ultimately received it only on June 22 and the assessee filed onJuly 12 an application under Section 66(1) of the Income Tax Act for reference, but the application was dismissed as barred by time.
There was no indication in the vakalatnamas that the lawyer was authorised to accept notices on behalf of the assessee and in the form of appeal to the Appellate Tribunal the assessee had written his own name and address in the column requiring a statement about the address to which notices may be sent. On these facts, the learned Judges held that the service of the notice on the lawyer was not service at all as contemplated by Section 33(4) of the Act, as there was no valid communication of the order of the Appellate Tribunal to the assessee; and that, therefore, the application for reference under Section 66(1) must be treated as if it had been made within the time allowed under that section. This decision supports the contention on behalf of the assessee-petitioner.
6. Mr. H. Mohapatra, the learned Standing Counsel for the Department vehemently contends that the service of the order on Mr. B.N. Mohanty is a valid service of the order and that the above decision does not support the contention of the assessee and is clearly distinguishable. According to the learned Standing Counsel for the Department if is not necessary that the order should be served on the assessee. It is enough under Section 66(1) if he is served with the notice of an order and notice can be served on the assessee under Section 63(1) either by post or as if it were a summons issued by a Court under the Code of Civil Procedure, 1908. In this case the learned Standing Counsel submits that the notice was not served by post. Therefore, according to him, it is enough it it was served as if it were a summons issued by a Court under the Code of Civil Procedure, 1908. Then the learned Standing Counsel referred me to the provisions of the Civil Procedure Code regulating the service of summons and processes. Order 3 deals with recognised agents and pleaders. Under Rule 1 of Order 3, C.P.C.,
'Any appearance, application or act in or to any Court, required or authorised 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 recognised agent, or by a pleader appearing, applying, acting, as the case may be, on his behalf.'
Rule 2 enumerates who are the recognised agents, and is to the following effect:
'The recognised agents of parties by whom such appearances, applications and acts may be made or done are
(a) persons holding power 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 name 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 authorised to make and do such appearances, applications and acts.'
Rule 3 says,
'(1) Processes served on the recognised agent of a party shall he as effectual as if the same had been served on the party in person, unless the Court otherwise directs.
(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognised agent.'
The learned Standing Counsel contends that Mr, B.N. Mohanty who appeared for the assessee and argued the appeal before the Tribunal is the recognised agent of the assessee and as summons canbe served under the Code of Civil Procedure under Section 61 of the Income Tax Act, service of notice oi the order on Mr. B.N. Mohanty is a valid service. He also referred me to Order 5. Under Order 5, Rule 12, C.P.C., wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which casa service on such agent shall be sufficient.
Therefore the contention of the learned standing counsel is that Section 66 of the Indian Income Tax Act, read with the provisions of the Civil Procedure Code clearly shows that service in this case is a valid service and therefore time begins to run from the day on which the service is made on B.N. Mohanty. Consequently the application under Section 66(1) is barred by time. The argument of the learned standing counsel is no doubt a very ingenious argument as he took great pains to support these contentions also on the authority of certain decisions. But a pleader under the Civil Procedure Code appearing for a party cannot be a recognised agent as contemplated under Order 3, Rule 3. Order 3 Rule 4 itself contemplates the appointment of a pleader and prescribes certain conditions. It says,
'(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment,
(2) Every such appointment shall be filed in court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client Or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.'
7. The learned counsel also referred to Order 41 Rule 14 and Order 48, Rule 2 of the Civil Procedure Code in support of his contention. Order 41, Rule 14 deals with the publication and service of notice of day for hearing appeal. It says-
'(1) Notice ot 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 theservice of such notice. * * * * * *'
On the strength of this rule, the learned StandingCounsel contends that service on pleader is enough. Under Order 48 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 rule as summons can be served on the recognised agent the order served on the pleader is sufficient. I cannot accept the contention that the term 'pleader' comes under the expression 'authorised agent' as used in the Code of Civil Procedure.
8. The learned Standing Counsel for the Department then referred to me to certain rules in the Appellate Tribunal Rules in support of his contention that the order served on Mr. B.N. Mohanty is a valid service of the order on the assessee. He referred me to Rule 2(ii) to the definition, of 'authorised representative'. This rule says,
'(ii) 'authorised representative' means -
(a) in relation to an assessee, a person duly authorised by the assessee under Section 61 to attend before the Tribunal and
(b) in relation to an Income Tax authoritywho is a party to any proceeding before the Tribunal,a person duly appointed by the Central Government by notification in the official gazette as authorised representative to appear, plead and act for suchauthority in any such proceeding, and any otherperson acting on behalf of the person so appointed. * * * * * *'
We are concerned with Rule 2(ii) (a). Section 61 or the Income-tax Act deals with appearance by authorised representative, and is as follows:
'(1) Any assessee, who is entitled or required to attend before the Appellate Tribunal or any Income Tax authority in connection with any proceeding under this Act otherwise than when required under Section 37 to attend personally for examination on oath or affirmation may attend by a person authorised by him in writing in this behalf, being a relative of or a person regularly employed by the assessee, Or a lawyer or accountant or Income-lax practitioner, and not being disqualified by or under Sub-section (3). * * * * * *'
Then the learned Standing Counsel referred me to Rule 17 of the Appellate Tribunal Rules which is to the effect-
'Where a memorandum of appeal is signed by an authorised representative, the assessee shall append to the memorandum a document authorising the representative to appear for him and it the representative is a relative of the assessee, the document shall state that his relationship is with the assessee or if he is a person regularly employed by the assessee, the document shall state the capacity in which he is at the time employed: Provided that 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 32-A says :
'The proceedings before the Tribunal shall not be open to the public. No person except the assessee, his employee, 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 'authorised' representative including counsel engaged by him or by the authorised representative'. On a reading of these rules, I am of opinion that a counsel appointed to argue the matter before the Tribunal cannot be deemed to be an authorised representative for purpose of receiving the orders as contemplated in Rule 34.
9. The learned Standing Counsel then contended that the vakalatnama filed by Mr. B.N. Mohanty in this case was accepted by him at the time of sending the memorandum of appeal and the terms of the vakalatnarna do clearly show that he was authorised to receive the order. The vakalatnama Form is in Oriya. But the English Translation as appears from an English Form of that time, is to this effect.
'Know all men by these presents that by this Vakalatnarna I/We appoint the Advocate under-mentioned or any of them as my/our lawful Advocate for filing the above appeal or application against the above-named respondents or opposite parties for entering appearance in the above case filed by the abovenamed applicants or petitioners for appearing in conducting and arguing the same or depositing or withdrawing any money in connection therewith for putting in papers petitions etc., on my/out behalf for filing or taking back documents for withdrawing suit or appeal with permission to institute fresh suit etc. and to make compromise to refer any matter to arbitration, and appoint arbitrators' and for doing all acts that may be necessary to be done in connection with the said case and I/we further say that any act done by my/our said Advocates and Vakils or any one o them after accepting this vakalatnama shall be considered as my/our own and true and lawful act. To the above effect I/we execute this Vakalatnama.'
The learned Standing Counsel contends that this is a very wide authority including an authority to receive the order. He also contends that the decision of the Patna High Court relied upon in : 30ITR8(Patna) is distinguishable on this ground as the terms of the vakalntnama there are different. The terms of the vakalatnarna as quoted in the decision by their Lordships are as follows:
'I Manoharlal Agarwalu Karta, hereby appoint and empower the under-noted pleaders advocates ..... to apply for and take delivery of copies, to authorise our or their representatives and clerks to take delivery of copies..........'
The learned Standing Counsel, on the strength ot the portion quoted in the judgment, submits that the vakalatnarna in that case gave a limited power whereas the vakalatnama 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 'Liking 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.
10. 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 administration by the Government it is the General Manager of the Railway who is the person ex-officio athorised to act for and on behalf of the Central Government. Therefore, for purposes of suits involving a railway administered by the Government of India the word 'Government' as used in Section 3(vi), Railways Act also practically means the same thing as the Manager of that Railway and under Rule 3(1) of Order 3. Civil Procedure Code, it is clear that processes served on the recognised agent of a party is as effective as if the same had been served on the party in person, unless the Court otherwise directs.'
Where the special power of attorney executed in favour of B under Section 145, Railways Act by the General Manager, East India Railway was wide enough to authorise B to represent, act, plead and do all things necessary in the suit against the East Indian Railway Administration and B had actuallyacted and pleaded in the trial Court, it was held by the Patna High Court:
'B was the authorised agent of the East Indian Railway Administration and therefore the notice of appeal arising out of the suit could in law be effectually served on him. Though in this case the actual notice of appeal had not been served, on B, the appellate Court had communicated to B the order sheet containing the specification of the appeal as also the date fixed for hearing. This communication did in law amount to service of notice on B, the authorised agent of the East Indian Railway Administration.'
The terms of the authority in the case in favour of Mr. A. K. Bose, the authorised agent, according to the learned Standing Counsel, are exactly similar to those of the vakalatnama filed by Mr. B.N. Mohanty. In that case under the terms of the power of attorney the Patna High Court held,
'These terms of the power given under the written authority were, as is evident on the face of it, not only sufficiently wide to authorise him to act for the East Indian Railway Administration in appeal arising from, that suit but that thereunder Mr. A. K. Bose could do all in the suit on behalf of the Railway Administration.'
But it may he noted that there was an observation immediately afterwards that the document in that ease was not an ordinary vakalatnama but a power with much larger authority. In the case before us Mr. Mohanty filed only the ordinary vakalatnama. It may also be noted that in the case, the case reported in : 30ITR8(Patna) was not referred to. In any event the case before the Patna High Court was dealing with the 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 Sunderlal v. Commr. of Income Tax AIR 1931 Pat 282, which was a case under the Indian Income Tax Act, a Division Bench consisting of Courtney-Terrel, C.J. and James J. held,
'Order 3, 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 recognised 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 recognised agent carrying on business in the name of the principal that would imply authority to accept such notices because the acceptance of notice is matter which is connected with such trade or business. A notice under Section 22 need not therefore be served personally on the assessee and service of notice on recognised agent is good service.'
I do not think, this decision helps the contention of the learned Standing Counsel. In the first instance the question dealt with in this decision is a question with regard to the validity or otherwise of a notice on file recognised agent as contemplated under Order 3, Rule 2 of the Civil Procedure Code and in the second place this decision deals with sufficiency or otherwise of a notice of the matter of the capacity to receive a summons, but it does not apply to a case of receiving the order of the Tribunal. The next ease relied upon by the learned Standing Counsel in the case of Harkishen Das v. Commr. of Income-tax, Punjab . A Division Bench of the Lahore High Court held in this case,
'The words 'served with notice' in Section 66(2) of the Indian Income-tax Act (which provides that within sixty days of the date on which he is served with notice of an order under Section 31 or Section 32 the assessee may by application require the Commissioner to refer to the High Court any question of law arising from such order or decision) do not mean served with a written notice of such order or served with a copy of the detailed order giving reasons. There is service of notice within the meaning of the said section if the order or decision was announced in Court in the presence of the assessee or his representative.'
In my opinion, this case does not apply as in the case of the assessee before us the order of the Tribunal was not announced in court in the presence of the assessee or his representative, the order having been served some days after the hearing on Mr. B.N. Mohanty. For purpose of an application under Section 60(1) it is absolutely necessary to have the order so that the assessee may state the points to be referred to the High Court. Rule 34 of the Appellate Tribunal Rules clearly requires that the copy of the order shall be communicated after it is signed to the assessee and to the Commissioner. The rule is very definite. The communication of the order must be to the assessee.
Though the assessee 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 date. 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.
11. In the case of Basant Lal Ramjidas v. Commissioner of Income-tax, B. and O. ILR 11 Pat 40 : AIR 1932 Pat 103, 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 is duly authorised to conduct the business of an appeal before the Assistant Commissioner is not ipso facto authorised to obtain copies of the Assistant Commissioner's judgment or indeed to perform any act preparatory or incident to the conduct of the appeal.'
This case was relied upon by the learned Judges of the Patna High Court in : 30ITR8(Patna) and it was observed,
'Section 33 relates to appeals against orders of the Appellate Assistant Commissioner before the Appellate Tribunal. Sub-section (3) of this section provides that an appeal to the Appellate Tribunal shall be in the prescribed form. That form may be found in the Income-tax manual and a column of it requires a statement about the address to which notices may be sent to the appellant. The assessee filled up this column in the following manner, ('M/s Gopiram Bhagawandas, Post Office Dhanbad, district Manbhum.' It is clear from this statement that the assessee wanted all notices in connection with the appeal to be sent to him and not to his lawyer oragent. In ILR 11 Pat 40: AIR 1932 Pat 103, an application was made by an agent of the assessee without express authorisation in writing signed by the. assessee himself, and it was held that it was not an application at all so as to entitle the assessee to a deduction of time on the basis of that application.'
The learned Judges also quoted with approval the observation made in that case to the following effect:
The next point to be considered in the Income-tax Act is that the proceedings are of a most secret character ....... Now it does not follow that becausean agent is duly authorised to conduct the business of the appeal before the Assistant Commissioner he is ipso facto authorised to obtain copies of the Assistant Commissioner's judgment or indeed to perform any act preparatory or incident to the conduct of an appeal.'
12. I am therefore of opinion that in the case before us there is no express authorisation to Mr. B.N. Mohanty to receive the order. Therefore the date of receipt of the order by Mr. B.N. Mohanty cannot be taken as the starting point for limitation. In my opinion therefore, the application filed by the assessee under Section 66(1) of the Indian Income-tax Act should be treated as an application made within time allowed under Sub-section (1) and I direct the Tribunal accordingly. The application is allowed with costs.
13. Hearing fee Rs. 100/-
14. I agree.