Patna High Court
Gopiram Bhagwandas vs The Commr. Of Income-Tax on 22 March, 1956
Equivalent citations: AIR1956PAT531, [1956]30ITR8(PATNA)
ORDER
1. This is an application on behalf of the petitioner under Section 66, Sub-section (3), income-tax Act praying for a direction to the Income-tax Appellate Tribunal, Patna Branch, to treat his application under Section 66(1) of the Act as having been made within time. The circumstances which have given rise to this application are as follows. An appeal by the petitioner-assessee was heard by the Tribunal on 25-3-1955, and orders thereon were passed on 31-3-1955.
A copy of this order was sent to the assessee's lawyer, Mr. V.D. Narayan, and received by him on 7-4-1955. For some reason or other, the copy of this order was not despatched to the assessee who ultimately received it on 22-6-1955. An application under Section 66(1) of the Act was then filed before the Tribunal on 12-7-1955, but the application was dismissed on the ground that it was barred by time,
2. It has been contended by Mr. S.N. Datta, appearing on behalf of the petitioner, that, in view of the law provided in the various sections of the Act and the rules framed thereunder, the application was within time and the Tribunal wrongly decided the same to be barred. This submission appears to have considerable merit.
Section 33 relates to appeals against orders of the Appellate Assistant Commissioner before the Appellate Tribunal. Sub-section (3) of this section provides that an appeal to the Appellate Tribunal shall be in the prescribed form. That form may be found in the Income-tax Manual, and a column of it requires a statement about the address to which notices may be sent to the appellant. The assessee filed up this column in the following manner: "M/S Gopiram Bhagwandas, Post Office Dhanbad, district Manbhum". It is clear from this statement that the assessee wanted all notices in connection with the appeal to be sent to him and not to his lawyer or agent.
In Basant Lal Ramjidas v. Commr. of Income-tay, Bihar and Orissa, ILR 11 Pat 40 : (AIR 1932 Pat 103) (A) an application was made by an agent of an aasessee without express authorisation, in writing signed by the assessee himself, and it was held that it was not an application at all so as to entitle the assessee to a deduction of time on the basis of that application. The observations which were made in this connection by their Lordships are important. They said: --
"The next point to be considered in the Income-tax Act is that the proceedings are of a most secret character...... Now it does not follow that because an agent is duly authorised to conduct the business of the appeal before the Assistant Commissioner he is ipso facto authorised to obtain copies of the Assistant Commissioner's judgment or indeed to perform any act preparatory or incident to the conduct of an appeal."
Their Lordships at p. 46 (of ILR) (at p. 105 of AIR) reiterated that a person asking for a copy of the judgment should be expressly authorised in writing in that behalf.
3. It is, therefore, necessary to find out if the lawyer on whom the notice of the copy of the order was served had expressly been authorised to receive it by his vakalatnama. It is clear that he was not so authorised by the particulars given on the memorandum as required by law in which the assessee had submitted that all notices should be sent to him by his address at Dhandbad, District Manbhum. A certified copy of the power given to that lawyer has been marked Annexure C. The relevant portion of the document may be stated as follows:
"I Manoharlal Agarwala Karta hereby appoint and empower the undernoted pleaders, advocate ..... to apply for and take delivery of copies, to authorise our or their representatives and clerks to take delivery of copies....."
True, there was an express authority conferred on the lawyer to apply for and take delivery of copies, but there is no indication anywhere in the power that he had been authorised to accept notices on behalf of the assessee, especially when the assessee had made it abundantly clear in his memorandum of appeal that all notices should be sent to his address at Dhanbad. There can be no doubt that service of notice is considered to be an important step according to the provisions of the Act.
4. Section 33, Sub-section (4) states that the Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit and shall communicate any such orders to the assessee and to the Commissioner. It is incumbent, therefore, to determine if any such order had been communicated to the assessee or can be said to have been communicated to him in law.
The sub-section is silent about any communication to an agent of the assessee. Section 66(1) of the Act also provides for service of notice on the assessee within 60 days of the date of an order passed under Sub-section (4) of Section 33. This sub-section also makes it clear that notice should be on the assessee. Rule 34 of the Rules and Orders relating: to Appellate Tribunal also is in the following words:
"The Tribunal shall, after the order is signed cause it to be communicated to the assessee and to the Commissioner".
The underlying intention as expressed by these various sections and rules is that notices in such matters should be communicated to the assesses or the Commissioner, as the case may be of course, this does not mean that notices have to be served personally on the assessee even if there is an express authorisation given by the assessee himself to some one to accept these notices.
In the present case, after a careful scrutiny of the power, we have failed to find any indication of any authority conferred on the lawyer concerned by the assessee to accept notices on his behalf. The sections and the rules mentioned above are clear indication of the strictness with which such notices have to be served on the assessee.
5. Learned Standing Counsel, appearing on behalf of the Department, has placed before us the case of Bansilal Gulabchand v. Commr. of Income-tax, Bombay. 1943-16 ITR 431 : (AIR 1948 Bom 431 (B). This decision cannot be taken as an authority for the proposition that the High Court cannot interfere with an order passed by the Appellate Tribunal holding that the application of the assessee is time-barred. Their Lordships in the Bombay case were deciding whether the High Court could excuse the delay in filing an application before the Appellate Tribunal by the assessee under Section 66(1) of the Act.
After reviewing the provisions contained in other sections which confer power to extend the time, their Lordships decided that there was no such power conferred under Section 66(1). The present case before us is not one where the assessee asks for any -extension of time for sufficient cause. The contention of the assessee is that the service of the notice on his lawyer was no service at all as contemplated under Section 33, Clause (4) of the Act.
The contention is sound as, in our opinion, there was no valid communication of the order by the Appellate Tribunal to the assessee as provided by law for the reasons enumerated above.
6. Again, the alleged service of notice is susceptible to further attacks from other aspects as well. The notice was addressed as "M/S Gopi-ram Bhagwandas, Post Office Dhanbad C/o Sri V.D. Narayan, Advocate, Patna", The address purports to be pointed to the assessee under care of his lawyer at Patna although the destination is described as "P.O. Dhanbad". In this circumstance, it can very well be argued that the notice was not sent to the lawyer who was supposed to be authorised agent of the assessee.
7. It is clear, therefore, that the Tribunal wrongly construed the power in question to mean that it authorised the lawyer to receive orders passed in the appeal. There can be no doubt that in the circumstances of the case, there Was no valid and legal notice on the assessee of the order passed by the Appellate Tribunal, which the assessee was entitled in law to get.
8. Accordingly, this application succeeds as we are not satisfied of the correctness of the decision of the Appellate Tribunal, which shall now treat this application as if it had been made within the time allowed under Sub-section (1) of Section 66. The hearing fee is fixed at Rs. 100/-.