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V.S.P. Subramanian Chettiar Vs. Commr. of Income-tax, Madras - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 10949 of 1952
Judge
Reported inAIR1954Mad91; [1953]24ITR89(Mad); (1953)2MLJ284
ActsIncome-tax Act, 1922 - Sections 61, 61(1), 66, 66(1) and 66(3); Income-tax Appellate Tribunal Rules, 1946 - Rule 2; Code of Civil Procedure (CPC) , 1908 - Order 3, Rule 4
AppellantV.S.P. Subramanian Chettiar
RespondentCommr. of Income-tax, Madras
Appellant AdvocateV.V. Raghavan, Adv.
Respondent AdvocateC.S. Rama Rao Sahib, Adv.
DispositionApplication allowed
Excerpt:
.....act (xi of 1922), sections 61, 66, 33 (3)--lawyer-- whether 'authorised representative'--power of appellate tribunal to excuse delay under section 66 (1);section 61 of the indian income-tax act includes a lawyer as a person entitled to appear before a tribunal. by reason of this definition, a lawyer or an advocate entitled to appear under section 61 of the act is an 'authorised representative' within the meaning of the rule. he would, therefore, be a person entitled to sign and present an application on behalf of the assessee as his 'authorised representative.';an application under section 66(1) is not required to be verified in the prescribed manner as int he case of appeal to tribunal under section 33(3) and the application under section 66(1) is treated as less formal than a..........by the assessee under section 66(3), income-tax act, questioning the correctness of the appellate tribunal's decision, that the application of the assessee under section 66(1) of the act for a reference to the high court was out of time. the application was rejected by the appellate tribunal on the ground that it was barred by limitation. the order of the appellate tribunal, which was the subject matter of the application under section 66(1), is dated 4-3-1952. the assessee, at the time the order was pronounced was residing in colombo, and he gave his madras address, care of kalyanarama aiyar at madras. kalyanarama aiyar received the order on 14-3-1952, and ho, in due course, communicated it to the assessee at ceylon, which was received by the assessee on 30-3-1952. the period.....
Judgment:
1. This is an application by the assessee under Section 66(3), income-tax Act, questioning the correctness of the Appellate Tribunal's decision, that the application of the assessee under Section 66(1) of the Act for a reference to the High Court was out of time. The application was rejected by the Appellate Tribunal on the ground that it was barred by limitation. The order of the Appellate Tribunal, which was the subject matter of the application under Section 66(1), is dated 4-3-1952. The assessee, at the time the order was pronounced was residing in Colombo, and he gave his Madras address, care of Kalyanarama Aiyar at Madras. Kalyanarama Aiyar received the order on 14-3-1952, and ho, in due course, communicated it to the assessee at Ceylon, which was received by the assessee on 30-3-1952. The period of sixty days expired on 13-5-1952. Meanwhile, the advocate, who appeared for the assessee before the Appellate Tribunal, took steps to communicate with the assessee for making an application under Section 66(1) of the Act. The telegram which was issued by the assessee from Colombo on 8-5-1952 was received by the advocate on 9-5-1952. On 13-5-1952 the advocate filed the application in the prescribed form, but it was signed by him alone. The application was returned on 14-5-1952 with the following endorsement:

"The application is not signed, by the proper person. Fresh application signed either by the applicant himself or by the general power of at-torney holder may be filed in triplicate."

2. On 27-5-1952, the advocate represented the application, which was also signed by the assessee. When the application came up for hearing before the Appellate Tribunal, on behalf of the department a preliminary objection was raised, that the application was barred by time, and that it was 14 days beyond the time allowed under Section 66(1).

3. The main ground of attack was that the application was not signed either by the assessee or by his duly authorised representative when it was presented on 13-5-1952, and as by the time of representation the period of sixty days had elapsed, the application must be treated as barred by limitation. The Appellate Tribunal accepted the contention of the department and rejected the application. The ground on which the Appellate Tribunal founded its decision was that the necessary authority for signing the application was not produced along with the application filed on 13th May, and that "the power of attorney" filed before the Tribunal at the time of the hearing of the appeal did not authorise the advocate to sign the reference application.

4. On behalf of the applicant, it was contended by the learned Advocate General that this view of the Tribunal was wrong. We agree with that contention. The advocate, when he appeared be-fore the Tribunal to argue the appeal, filed a vakalat, which authorised him

"to appear for me in the above assessment, appeal, revision, application, reference or other proceeding, to receive all notices and letters and all orders passed therein, to apply for and get the return of all documents filed, copies of all papers and orders and to receive any refunds that may be due in the above proceedings."

The authority so conferred upon the advocate does not and in law could not terminate with the disposal of the appeal by the Tribunal, and his authority to act on behalf of the assessee undoubtedly continued. If, in fact, there was a reference to this court, and oh such reference this Court expressed its opinion and any variation in the order of the Appellate Tribunal as a result of this Court had to be made, it cannot for a moment be seriously contended that the advocate, who appeared before could not appear at a later stsge without producing a fresh vakalat. The view of the Appellate Tribunal, that there should be a specific authorisation in the vakalat itself, to sign a reference application is, in our opinion, also not correct.

5. Under Section 66 (1), Income-tax Act, the assesses Is required to file the application in the prescribed form. The form R (T) prescribed by the Central Board of Revenue under the rule-making power vested in it by virtue of Section 59 provides for the signature of the applicant and of the authorised representative, if any. Authorised representative is denned in Rule 2 (ii) of the Appellate Tribunal Rules, 1946, as meaning in relation to an assessee "a person duly authorised by the asses-see under Section 61 to attend before the Tribunal". Section 61 includes a lawyer as a person entitled to appear before the Tribunal. By reason of this definition, a lawyer or an advocate entitled to appear under Section 61 of the Act before a Tribunal is an "authorised agent" within the meaning of the rule. He would, therefore, be a person entitled to sign and present an application on behalf of the assessee as his authorised representative, and the application presented on 13-5-1952 undoubtedly contained his signature. This aspect of the matter was overlooked by the Appellate Tribunal. The view of the Appellate Tribunal that the advocate was not an authorised representative, and that he should have been specifically authorised to sign the application by a further authorisation, is wrong. If we con-fine ourselves to the reasoning adopted by the Appellate tribunal, the question raised must undoubtedly be answered for the foregoing reasons in favour of the assessee and we must hold that the application was presented in time.

6. A further contention, however, has been raised by Mr. Rama Rao Sahib, learned counsel for the Commissioner, that it was not sufficient to have the signature of the authorised representative but there should be the signature also of the assessee. We do not see any necessity for two signatures, and in the context the form must be read as only laying down that either it should be signed by the assessee or at least by his authorised representative if he had one. If the authorised representative signs on the application, there is no point in insisting upon the signature of the assessee also. All that the law requires is that there must be the signature of either the principal or his authorised representative, and the application must be presented under Rule 7 of the Appellate Tribunal Rules, which is made applicable to this application also by Rule 36 of the Appellate Tribunal Rules. It must be noticed that an application under Section 66 (1) is not required to be verified in the prescribed manner as in the case of appeal to the Tribunal under Section 33 (3) and the application under Section 68 (1) is therefore treated as less formal than a memorandum of appeal under Section 33 (3).

7. It is unfortunate that while power is conferred upon the Appellate Tribunal to excuse the delay in presenting an appeal by Section 33 (2) (a), and in the case of applications to this Court under Section 66 (2) and (3) by Sub-section (7-A) of Section 66, no similar power is conferred upon the Appellate Tribunal to excuse the delay, if any, in filing applications under Section 66 (1). Even the delay in presenting an application, which falls under Section 66 (3) and in which the complaint is that the Appellate Tribunal wrongly rejected the application under Section 66 (1) as barred by limitation, if presented beyond time, can be excused by this Court under Section 66 (7-A) of the Act. But the Appellate Tribunal with regard to an application under Section 66 (1) is powerless if it was out of time and there exists a Just cause. We think it is an omission in the Act and the Legislature might remedy the defect.

8. We think that the order of the Appellate Tribunal is wrong; and the Appellate Tribunal is required to treat the application as made within the time allowed under Section 66 (1) and dispose it of according to law. We make no order as to costs.


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