WHO CAN REPRESENT FOR & ON BEHALF OF INCOME TAX ASSESSEES?

As per Section 288(2) of Income Tax Act, 1961 there are Eight (8) Categories of Persons eligible to act as Authorized Representatives for & on behalf of the Income Tax Payers/Assessees, as listed below:

1) The Relative or Employee of the Assessee/Tax Payer [vide Clause (i) of Sub-section (2) of Section 288 of the Income Tax Act, 1961],

2) The Officer of the Scheduled Bank in which the IT Assessee maintains a Current Account [vide Clause (ii) of Sub-section (2) of Section 288 of the Income Tax Act, 1961],

3) The Legal Practitioner (i.e., Advocate/Lawyer) practicing in any Civil Court in India [vide Clause (iii) of Sub-section (2) of Section 288 of the Income Tax Act, 1961],

4) The Chartered Accountant or Auditor of Companies [vide Clause (iv) of Sub-section (2) of Section 288 of the Income Tax Act, 1961 read with suffixed “Explanation”],

5) The Person who has passed any Accountancy Examination recognized by the Board [vide Clause (v) of Sub-section (2) of Section 288 of the Income Tax Act, 1961 read with Rule 50 of the Income Tax Rules, 1962],

6) The Person who has acquired a Degree in Commerce or Law from Recognized Universities [vide Clause (vi) of Sub-section (2) of Section 288 of the Income Tax Act, 1961 read with Rule 51 of the Income Tax Rules, 1962],

7) The Person who have attended before an Income Tax Authority on behalf of any assessee, before coming into force of this Act in certain Union Territories [vide Clause (via) of Sub-section (2) of Section 288 of the Income Tax Act, 1961], and

8) The Person who, immediately before the commencement of this Act, was actually practicing as an Income Tax Practitioner under Indian Income Tax Act, 1922 [vide Clause (vii) of Sub-section (2) of Section 288 of the Income Tax Act, 1961].

However, it is to be noted that since the present Act is in Vogue for the last 54 years, retaining & continuing the last Two Categories, i.e., (7) and (8) still under the Act is vague, because probable aspirants of registration under these Two Categories might have attained the age of over 70 years.

IS THERE ANY PROVISION UNDER INCOME TAX LAW FOR REGISTRATION AS “AUTHORIZED REPRESENTATIVE”?

There is no provision for Registration as an “Authorized Representative” either in Income Tax Act or Rules. However, there is scope for only a few of the categories of “Authorized Representatives” to be Registered under a nomenclature “Authorized Income Tax Practitioner”.

WHO CAN SEEK REGISTRATION AS AN AUTHORIZED INCOME TAX PRACTITIONER?

Among the above shown Eight (8) Categories of “Authorized Representatives” the (1) and (2) are casual, and thus there is no provision under the Income Tax Act for Registration of those Two Categories. Among the next Two Categories of ARs, i.e., (3) and (4), as they derived their right to practice as Legal Practitioners/Advocates already enlisted with the Bar Council and Chartered Accountants already enlisted with the ICAI/ICSI & Companies Act, there is no provision under the Income Tax Act for Registration of those Two Categories also.

The rest of the Four (4) Categories [i.e., from (5) to (8)] to whom, there is provision under Income Tax Act for Registration as an Authorized Income Tax Practitioner. However, aspirants for registration under the last Two Categories, i.e., (7) and (8) shown above might have attained the age of over 70 years, and thus, henceforth there may not by any such applicants for Registration as an Authorized Income Tax Practitioner.

Therefore, there will be scope only for Two Categories [i.e., Clause (v) and Clause (vi) of Subsection (2) of Section 288 of the Income Tax Act, 1961] to get Registration as an Authorized Income Tax Practitioner. The Educational Qualification prescribed for “Income Tax Practitioners” is just passing an “Accountancy Examination” [vide Clause (v)], or having acquired just a “Degree in Commerce or Law” [vide Clause (v)].

IS THERE ANY NEED OF BEING REGISTERED AS AN INCOME TAX PRACTITIONER?

The criterion prescribed (to act as an Authorized Income Tax Practitioner) as per Section 288(2)(vi) of the IT Act [read with Rules 49(a) and 51] is just a “Degree in Commerce/Law”.

The Definition of the “Authorized Income Tax Practitioner”, as per Rule 49(a) of the Income Tax Rules, 1962, means any Authorized Representative as defined in Clause (v) or Clause (vi) or Clause (vii) of Sub-Section (2) of Section 288 of the Income Tax Act, 1961 only. This Rule 49(a) confer the registration only for Three (3) Categories as Income Tax Practitioners. However, as already said elsewhere in this Article that since the Income Tax Act, 1961 is about 54 years old now, the candidates under Clause (vii) of Sub-section (2) of Section 288 of the Income Tax Act, 1961 would be aged over 70 years.

Therefore, when the Authorized Representatives hailing under the Clause (v) and Clause (vi) of Sub-Section (2) of Section 288 of the Income Tax Act, 1961 are already recognized as Authorized Income Tax Practitioners as per Rule 49(a) of the Income Tax Rules, 1962, there may not be any special need for getting Registration as Authorized Income Tax Practitioners. In support of this view, there is a Judgment of the Hon’ble ITAT, Bench ‘C’, Chennai (TN) in Vidhya Sikshaa Educational and Charitable Trust Vs. CIT (ITA No.1331/Mds/2010) dated 16-03-2011.

The Paras 6, 7 and 8 of the Judgment of the Hon’ble ITAT, Bench ‘C’, Chennai (TN) in Vidhya Sikshaa Educational and Charitable Trust Vs. CIT (ITA No.1331/Mds/2010) dated 16-03-2011 read as follows:

[Para 6: By virtue of Sub-rule (4) of Rule 50, departmental examinations conducted by or on behalf of CBDT, 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:

(1) Any person who wishes to have his name entered as an authorized income-tax practitioner in the register shall apply to the [Chief 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 [Chief Commissioner or Commissioner] may require in connection with the disposal of the application.

Para 7: 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 of the ;

Para 8: 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.]

CONCLUSION:

In the light of the above judgment, it could be concluded that the “Registration as an Authorized Income Tax Practitioner” is “optional”, and that possessing “Certificate of Registration” as an “Authorized Income Tax Practitioner” is “not mandatory” to represent Income Tax Assessees.

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(Republished with amendments )

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12 responses to “Certificate of Registration as 'Income Tax Practitioner' not mandatory to Represent I. T. Assessees”

  1. Jagannath D Alhat says:

    Whether such representative will be allowed to sign P&L Accounts and Balance Sheet

  2. ANIL KUMAR says:

    CAN INCOME TAX PRACTITIONER FILE THE ITR UNDER SECTION 44 ADA

  3. mithun bhatt says:

    sir i want to income tax practisnor certificate wahre i applay and take exam also

  4. K Ganesan says:

    I am Bachelor of Commerce Graduate I want to Certificate of Registration as ‘Income Tax Practitioner’ through Online. Kindly advise me.

  5. Mohit Tharwani says:

    How can we apply before Commissioner Income Tax ? Is there any online service ?

  6. S.K.Batra says:

    As per Rule 55 of I.T.Rules for registration one year experience is necessary on the date of application. It is not understood when without certificate one can not practice
    how one can get as the experience as laid down in Rules.

  7. Divakar says:

    in future even VAT assessments may take lifetime!!! forget appealing these cases in next higher authorities…

    What will happens to period of maintaining books of accounts provisions?

  8. BSKRAO says:

    IN VIEW OF LATEST APEX COURT VERDICT IN THE CASE OF BAR COUNCIL OF INDIA VS A.K.BALAJI, OTHER THEN ADVOCATES CAN NOT PRACTICE INDIAN LAWS ANY MORE.

  9. BSKRAO says:

    Indian legislature provided special class of persons called Advocates in Advocates Act, 1961 to practice all Indian laws. Therefore, authorised representative clause not required in any Indian taxation statute. Bar Council of India Vs A.K.Balaji [SLP(Civil)No(s)17150-17154/2012] Dt.4.7.2012 (SC) & A.K.Balaji Vs Govt. of India (2012) 35 KLR 290 21.02.2012 (Madras HC) it was clearly held by Hon’ble Supreme Court & Madras High Court that Advocates alone are entitled to practice the Profession of Law both in litigious & non-litigious matters, nullifying the effect of Section 33 of Advocates Act. This also confirms to Section 29 of Advocates Act. The constitution bench of Supreme Court of India in National Tax Tribunal case of Madras Bar Association Vs Union of India bearing No.150 of 2006 Dt.25.09.2014, it was ultimately held that Chartered Accountant to represent a party to an appeal before NTT, unconstitutional and unsustainable in law. The verdict of Supreme Court is the declared law of land, binding on all throughout the territory of India under Article 141 of Indian Constitution & contravention liable for action under Article 129 read with Article 142(2) of Indian Constitution. Hence, Advocates alone are entitled to Practice, Plead and Act before the revenue authorities. On date, authorized representative clause under all Indian taxation statute has been subject to review of apex court and hence require deletion. Other than Advocates should appear before tax authorities under CPC/Evidence Act, against summons issued. If such appearance clause still retained in statute book of Indian taxation laws, situation may arise that order of assessing authority passed against the representation of other than Advocates become in-fructuous, bad in law, null & void. Further, such orders cannot be enforced/appealed. Power of attorney (Vakalatnama) to practice law can only be given to Advocates.

  10. Varistha Pension Bima Yojana says:

    What can a authorized representative do under IT act?

  11. Manish Sachdeva says:

    Not much of surprise when one of the act which provides relief to soldiers from rape crimes is still in existence

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