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

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 )

Categories: Income Tax

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