Registration as ITP not necessary to appear before revenue

Assessee was represented by Shri Subbarayan. The Bench queried Shri Subbarayan as to under what capacity he was appearing on behalf of the assessee. Thereupon, he replied that he was appearing as an authorized representative. He further submitted that he was a retired Deputy Commissioner of Income tax and an authorized representative as defined under sub-section 288(1) of the Act. Quoting clause (v) of sub-section (1) of section 285, Shri Subbarayan submitted that he was a person who had passed the Accountancy Examination recognized by the Central Board of Direct Taxes. Attention was invited to Rule 50 of the Income-tax Rules, 1962 [In short, the Rules] which sets out the Accountancy examinations which were recognized. According to him, Sub-rule (4) of Rule 50, clearly mentioned that the Departmental Examinations conducted by or on behalf of the Central Board of Directed Taxes was one of those examinations which were recognized and he, having passed such an examination,  was eligible to appear before this Tribunal as an authorized representative.

Per contra, the ld. D.R. submitted that as per Rule 54 of the Rules, any person who wished to have his name entered as an authorized income tax practitioner in the register, was obliged to apply to the Chief Commissioner within whose area of jurisdiction he was practicing. According to him, Shri Subbarayan was yet to obtain such registration as specified in Rule 55 of the Rules.

By virtue of Sub-rule (4) of Rule 50, departmental examinations conducted by or on behalf of CBDT is recognized for the purpose of clause (v) of sub-section (2) to section 288 of the Act. There is no dispute raised by the ld. D.R. on the claim of Shri Subbarayan that he had passed such departmental examination while in service. Now coming to the contention of the ld. D.R. that every authorized representative, for appearing before this Tribunal had to apply to the Chief Commissioner within whose area of jurisdiction he was practicing, in accordance with Rule 54 of the Rules and obtain a certificate of registration as per Rule 55, we are unable to accept. Rule 54 of the Rules is reproduced as under:

54. (1) Any person who wishes to have his name entered as an authorized income-tax practitioner in the register shall apply to the fChief Commissioner or Commissioner] within whose area of jurisdiction he has been practicing. The application shall be made in Form No. 39 and shall be accompanied by documentary evidence regarding his eligibility for income-tax practice under clause (v) or clause (vi) 2 or clause (via)] or clause (vii) of sub-section (2) of section 288.

(2) The applicant shall also furnish such further information as the fChief Commissioner or Commissioner] may require in connection with the disposal of the application.

As per this Rule, a person who wishes to have his name entered as an authorized income tax practitioner in the register, has necessarily to apply to the Chief Commissioner within whose area of jurisdiction he was practicing. Obviously a person who did not wish to have his name so entered, need not make any such application at all. Authorized Income-tax practitioner is a nomenclature which does not appear anywhere in section 288 of the Act.   It finds a mention in Part XI and Rule 49 of the Rules only. Said rule reads as under:

In this Part—

(a) “authorized income-tax practitioner” means any authorized representative as defined in clause (v) or clause (vi) or clause (vii) of sub-section (2) of section 288;

Thus as per clause (a) of Rule 49, an “authorized income-tax practitioner” is any authorized representative as defined in clause (v) or clause (vi) or clause (vii) of sub-section (2) of section 288 for appearing before this Tribunal. It cannot be read to mean that an authorized representative as defined in sub-section (2) has to get himself registered as an authorized income-tax practitioner. Sub­section (2) of section 288 does not say that the authorized representative shall also be an authorized I.T. practitioner registered under Rules 54 and 55 of the Rules. The right given in this respect by the Act cannot be diluted by Rules nor can it be restricted by Rules, by specifying a procedure for registration. The right given to an assessee to appoint an authorized representative who has the qualification to become authorized representative as defined under the Act cannot be denied. In other words, a person having the qualification mentioned under the Act cannot be stopped from appearing before this Tribunal on behalf of the assessee. We are, therefore, of the opinion that Shri Subbarayan is authorized under the Act to appear before this Tribunal as authorized representative and objection of the department in this regard is rejected.