Brief: Whereas the Judgment of the Hon’ble ITAT, Agra Bench in ITA No.133/Agra/2013 dated 09-07-2013 in which it has been emphasized that “none will be entitled for appearing / attending / practicing before the Income Tax Authorities without Registering as an Income Tax Practitioner with the CIT.”, the Judgment of the Hon’ble ITAT, Bench ‘C’, Chennai (TN) in ITA No.1331/Mds/2010 dated 16-03-2011 in which it has been emphasized that “… The right given in the respect by the Act cannot be diluted by Rules nor can it be restricted by Rules, … In other words, a person having the qualification mentioned under the Act cannot be stopped …”. The Different Benches of the Hon’ble ITAT are expressing different opinions on identical issues.
Introduction: The above two Judgments reflect the negative views with each other, and thus, again it’s a conflict issue as to which one of these two is appropriate. The Internet & Information Technology is a boon for curbing such conflicts in future by instantly verifying as to whether similar issues were already dealt in & the earlier judgments delivered thereon by other Benches of the Hon’ble ITAT, before delivering its judgment by any Bench of the Hon’ble ITAT.
Main body: 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 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:
- (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;
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.]
And, Para 9 of 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 reads as follows:
[Para 9. Shri B.D. Giri, ITP referred to section 288(2)(v) & (vi) of the IT Act and claimed that since he is retired departmental Officer, therefore, without any certificate of registration as ITP can appear before the Income-tax Authorities and the Tribunal. He has also admitted before us that though he is practicing in Gwalior, but he is not registered with the CIT, Gwalior. His claim is totally wrong and his conduct is liable to be impeached. Section 288(2)(v) & (vi) provides the meaning of authorized representative who have passed any accountancy examination recognized by the Board or any person who has acquired such educational qualifications prescribed by the Board in this behalf. Section 50 of the IT Rules provides accountancy examinations recognized in case of departmental officers and such departmental examination shall be conducted by the CBDT under sub-section (4) of section 50 of the IT Rules. The educational qualification is also provided u/s. 51 of the IT rules. However, mere possession of educational qualification without conducting departmental examination by the Board itself is not sufficient to have any right to practice as Income-tax Practitioner (ITP in short). According to Rule 53, 54 & 55 of the IT Rules, the Chief Commissioner or the Commissioner shall have to maintain prescribed form to register ITP to whom certificate is issued. The person, who claims to be registered as ITP shall have to file proper application supported by documents to prove his accountancy examination recognized and educational qualifications achieved by him as per Rules. When CCIT or the CIT are satisfied that such person fulfills the requirement of section 288(2) of the IT Act, the ITP would be registered with the CCIT/CIT and a certificate of registration to practice shall be granted in his favour. The other provisions from section 56 & 57 of the IT Rules provides for cancellation of such certificate, which is not necessary in this case because admittedly, Shri B.D. Giri is not registered with CIT, Gwalior as he has not obtained any certificate of registration as ITP in his favour. The above provisions of the IT Act and IT Rules clearly prove that Shri B.D. Giri is not Income Tax Practitioner as recognized in the Income-tax Act and Rules. Therefore, without any certificate of registration in his favour under the above provisions, he cannot practice before the IT authorities and the Tribunal. Therefore, we warn Shri B.D. Giri to be careful in future. Copy of this order be provided to CIT, Gwalior for taking necessary action in the matter because the law would not provide any unauthorized person/representative to appear before the Income-tax Authorities or the Tribunal. In this view of the mater and the directions above, the appeal of the assessee is allowed for statistical purposes.]
From the above produced extracts, the view of each of the above two benches is different on one & the same issue.
Conclusion: Therefore, there is a very great & urgent need for fully utilizing the Internet & Information Technology by every Bench of the Hon’ble ITAT, for verifying as to whether similar issues were already dealt in & the earlier judgments delivered thereon by other Benches of the Hon’ble ITAT, before delivering its judgment by any Bench of the Hon’ble ITAT.
– SYED MAHABOOB PEER
In tax laws decision in any case depends on the facts of the case first. We should take the help of the the judgments of the similar or other superior courts for deciding the issue involved on same facts and not rely blindly …………. Regarding issue of “Authorised Representative” it is the sole power of the Person who appoint to represent him/her self for or on before any authority as he/or her know the best interest.