Syed Mahaboob Peer

The Section 288(2)(vi) of the Income Tax Act, 1961, together with the Rules 12A, 49(a), 51, 54 and partly the Rule 55 of the Income Tax Rules, 1962 are applicable in connection with the application (Form No.39) for the applicants under Section 288(2)(vi) of the Income Tax Act, 1961.        

Applicable To The Applicants Under Section 288(2)(vi) Of The Income Tax Act, 1961?

Since the Clause (vi) of Sub-section (2) of Section 288 of the Income Tax Act, 1961 is clearly containing/stating/insisting just a prerequisite of “having acquired such educational qualifications as the Board may prescribe for this purposeto be eligible to act as an “Authorized Representative”, mere possession of a Degree in Commerce or Law is enough.

The Rule 54 is clearly indicating to accompany the application by documentary evidence regarding eligibility for income-tax practice under respective Clause of Sub-section (2) of Section 288 of the Income Tax Act, 1961 only, and that the condition of prior attending/practicing is inapplicable to the applicants under the category of the Section 288(2)(vi) of the Act.

The Rule 54 is “on screen” & The Rule 55 is “off screen”.     The Rule 54 is visible to the applicant on the application (Form 39) as “see Rule 54”.   Thus, the Rule 54 is prominent and important & the Rule 55 is frivolous, trivial and insignificant.

There is a legal-hitch in Rule 55 of the Income Tax Rules, 1962 has a (causing confusion to the officials), which might be due to clumsy drafting trying to make it in a short & brief form to cover Specially the Clause (vii), apart from the Clauses (v) and (vi) of the Section 288(2) of the Income Tax Act, 1961.

The Rule 55 of the Income Tax Rules, 1962 is, thus, inconsistent with the Section 288(2)(vi) of the Income Tax Act, 1961, as the Rule is imposing other than the basic prerequisite of having acquired the prescribed educational qualification.

The ACT is the origin for any The ACT is Statutory & Legislative, but the RULES are regulative & governing and that the Rules prescribe procedures and Rules cannot go beyond the provisions of Act. Imposing other than those prescribed in Act is ultra virus.

If the applicant eligible under Section 288(2)(vi) is prevented from being enlisted in the Register of Income Tax Practitioners, the rights of the applicant are infringed as laid under Section 288 of the Income Tax Act, 1961, and the right given in this respect by the Act neither be diluted by Rule 55 nor it can be restricted by Rule 55.

If the Officials, without proper application of mind, just  concentrate on the Rule 55 of the Income Tax Rules, 1962, they are sure to fail in obeying & justifying the Rules 12A, 49(a), 51 & 54 of the Income Tax Rules, 1962.

A look into the format of Form No.39 will enable us understand that whereas the applicant’s applicable section pertains to clause (vi) of sub-section (2) of section 288, which insist only acquirement of desired Degree as laid under Rule 51, there is no scope at all for insistence of earlier practice.   In fact, under the words/caption “Form No.39” only the words “[See rule 54]” is only mentioned.

A look into the Format of Form No.38 will enable to understand that there are columns for Qualification & Date of Entry in Register only, and thus, there is no scope at all for insistence of earlier practice.

Usually, upon receipt of the application in Form No.39 if the CIT is satisfied that such applicant fulfills the requirement of section 288(2)(vi) of the IT Act, the CIT must register/enlist the name of the Applicant as ITP in Form No.38 maintained by the Commissioner of Income Tax and the Certificate of Registration to practice shall be granted in his/her favour.

The Judgment of the Hon’ble ITAT, Bench ‘C’, Chennai (TN) in  Vidhya Sikshaa Educational and Charitable Trust Vs. CIT, Appeal No. I.T.A. No. 1331/Mds/2010, Date of Pronouncement-16th March 2011 is clearly conveying that there is no need to be a registered Income Tax Practitioner for appearing before the IT Authorities or ITAT & that the Registration as ITP is optional.   If so, insisting prior appearing/practicing before IT Authorities in those cases who have come forward voluntarily for getting Enlisted/Registered as ITP will be a flaw on the part of the learned CIT.

The Judgment of the Hon’ble ITAT, Agra Bench in Samagra Vikas Mahila Samiti vs. CIT (ITA No.133/Agra/2013) dated 09-07-2013  is clearly conveying that “none will be entitled for appearing / attending / practicing before the Income Tax Authorities without Registering as an Income Tax Practitioner with the CIT.” If so, insisting prior appearing/ practicing before IT Authorities in those cases who have come forward voluntarily for getting Enlisted/Registered as ITP will be a flaw on the part of the learned CIT.

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