Samgra Vikas Mahila Samiti, Chhatarpur V. C.I.T., Gwalior

ITA 133/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0734 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-07-2013
• Assessment Year: misc
• Appeal Filed On: 30-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 12AA; 195; 131; 56; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 133/AGRA/2013 SAMAGRA VIKAS MAHILA SAMITI, VS. COMMISSIONER OF SIDDH GANESH MARG, OF INCOME-TAX, GWALIOR NEAR MISSION HOSPITAL, CHHATARPUR. (PAN: AACAS 6379 P) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.M. SINHA, ADV. WITH B.D. GIR I, ITP RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 02.07.2013 DATE OF PRONOUNCEMENT OF ORDER : 09.07.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT, GWALIOR DATED 18.03.2013 REJECTING THE APPLICATION FOR REGI STRATION U/S. 12AA OF THE ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE SOCIETY FILED APPLICATION IN PRESCRIBED FORM FOR GRANT OF REGISTRATION U/S. 12AA OF THE IT ACT. THE REPORT WAS CALLED FOR FROM THE AO IN ORDER TO VERIFY THE GENUI NENESS OF THE ACTIVITIES OF THE SOCIETY. THE JCIT, RANGE-I, GWALIOR HAS FORWARDED T HE REPORT IN THE MATTER. ON GOING THROUGH THE REPORT AND THE APPLICATION FILED BY THE SOCIETY, THE LD. CIT ITA NO. 133/AGRA/2013 2 OBSERVED THAT THE SOCIETY WAS FOUND TO HAVE RECEIVE D RS.5,60,549/- ON ACCOUNT OF JAN SAHYOG RASHI, THEREFORE, THE SOCIETY WAS REQUIR ED TO JUSTIFY THE SAME AND ALSO TO JUSTIFY THE ACTIVITIES AS WELL AS GENUINENESS OF THE ACTIVITIES CARRIED ON BY THE ASSESSEE SOCIETY. THE CASE WAS FIXED FOR COMPLIANCE BEFORE THE LD. CIT ON 13.03.2013. THE ASSESSEE WAS ALSO DIRECTED TO PROD UCE THE BOOKS OF ACCOUNT, AUDIT REPORT, BILLS AND VOUCHERS TO JUSTIFY THE CLAIM OF THE ASSESSEE SOCIETY. IT IS NOTED IN THE IMPUGNED ORDER THAT ON THE DATE OF HEARING, SHR I S.M. SINHA, ADVOCATE APPEARED BEFORE THE LD. CIT WITH WHOM CASE WAS DISCUSSED. HO WEVER, NO WRITTEN SUBMISSIONS, BOOKS OF ACCOUNT, BILLS AND VOUCHERS A ND OTHER RELEVANT DOCUMENTS JUSTIFYING THE CLAIM OF SOCIETY WAS FURNISHED. IN T HE ABSENCE OF DOCUMENTARY EVIDENCES, THE GENUINENESS OF THE ACTIVITIES OF THE ASSESSEE COULD NOT BE ESTABLISHED. THE LD. CIT, ACCORDINGLY REJECTED THE REGISTRATION APPLICATION. 3. INITIALLY, THE ARGUMENTS WERE ADVANCED BY SHRI S .M. SINHA, ADVOCATE, BUT LATER ON SHRI B.D. GIRI, ITP ALSO JOINED THE ARGUME NTS. BOTH OF THEM ARGUED THAT ON THE DATE OF HEARING BEFORE THE LD. CIT, GWALIOR, TH E BOOKS OF ACCOUNT, BILLS AND VOUCHERS, AUDIT REPORT AND EVIDENCES OF ACTIVITIES OF THE ASSESSEE WERE FURNISHED. HOWEVER, TO THEIR SURPRISE AND AGONY, THE LD. CIT H ELD THAT NO BOOKS OF ACCOUNT ETC. HAVE BEEN PRODUCED BEFORE HIM. THE AFFIDAVIT OF SHR I S.M. SINHA, ADVOCATE IS FILED IN SUPPORT OF THE ABOVE CONTENTION, IN WHICH HE HAS CONFIRMED TO HAVE PRODUCED THE ITA NO. 133/AGRA/2013 3 BOOKS OF ACCOUNT AND ALL OTHER SUPPORTING DOCUMENTS BEFORE THE LD. CIT ON 13.03.2013. IT IS ALSO STATED IN THE AFFIDAVIT THAT ITO (TECHNICAL) ASKED HIM TO SIGN THE BLANK ORDER-SHEET AND HE HAS SIGNED THE BLANK O RDER-SHEET BEFORE HIM IN THE MATTER. THE WRITTEN SUBMISSION IS ALSO FILED ON REC ORD BY SHRI B.D. GIRI, ITP (RETD. ADDL. CIT), IN WHICH ALSO, THE SAME FACTS HAVE BEEN EXPLAINED. IN THE STATEMENT OF FACTS ALSO THE ASSESSEE EXPLAINED THAT THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS WERE PRODUCED BEFORE THE LD. CIT WHO HAVE ALSO EXAM INED THE SAME BUT TO THEIR SURPRISE, THE COMMISSIONER NOTED IN THE IMPUGNED OR DER THAT NO BOOKS OF ACCOUNT OR OTHER MATERIAL HAVE BEEN PRODUCED BEFORE HIM. DU RING THE COURSE OF ARGUMENTS, THE LD. COUNSEL FOR THE ASSESSEE WERE REQUIRED TO E XPLAIN THAT WHEN WRONG FACTS HAVE BEEN RECORDED BY THE LD. CIT, GWALIOR IN THE I MPUGNED ORDER, WHY THEY HAVE NOT TAKEN RECOURSE AS PER LAW IN MOVING APPLICATION U/S. 154 WITH THE AFFIDAVIT OF THE COUNSEL BEFORE THE LD. CIT, GWALIOR. SHRI B.D. GIRI, ITP STATED THAT HE WOULD FILE A COMPLAINT BEFORE THE CHAIRMAN, CBDT AGAINST THE CIT, GWALIOR FOR RECORDING WRONG FACTS IN THE IMPUGNED ORDER. WHEN H E WAS ASKED TO EXPLAIN THAT INSTEAD OF TAKING RECOURSE AS PER LAW IN MOVING APP LICATION U/S. 154 BEFORE THE LD. CIT, GWALIOR, WHETHER IT WOULD BE PROPER TO MAKE A COMPLAINT BEFORE THE CHAIRMAN, CBDT IN THE MATTER BEING THE MATTER IS JU DICIAL IN NATURE AND ITP CERTIFICATE IS GRANTED TO HIM BY THE CIT, GWALIOR, SHRI B.D. GIRI, ITP SUBMITTED THAT HE DOES NOT HAVE ANY CERTIFICATE OF PRACTICE A S ITP FROM CIT, GWALIOR. THESE ITA NO. 133/AGRA/2013 4 FACTS WOULD CLARIFY THAT SHRI B.D. GIRI, ITP HAS NO CERTIFICATE OF REGISTRATION IN HIS FAVOUR AS ITP. HE WAS, THEREFORE, ASKED AS TO HOW H E CAN APPEAR BEFORE THE TRIBUNAL. SHRI B.D. GIRI, ITP REFERRED TO SECTION 2 88(2)(V) & (VI) OF THE IT ACT AND SUBMITTED THAT SINCE HE IS THE RETIRED DEPARTMENTAL OFFICER, THEREFORE, WITHOUT ANY CERTIFICATE OF REGISTRATION AS ITP, HE CAN PRACTICE AND ALSO SUBMITTED THAT HE IS NOT REQUIRED TO GET HIMSELF REGISTERED AS ITP WITH CIT, GWALIOR. WE WOULD TAKE UP THIS MATTER AT THE LATER STAGE. 4. THE LD. DR ON THE OTHER HAND RELIED UPON THE IMP UGNED ORDER AND SUBMITTED THAT WHEN NOTHING WAS PRODUCED BEFORE THE LD. CIT, THE REGISTRATION HAS BEEN RIGHTLY CANCELLED IN THE MATTER. THE LD. DR ALSO RE FERRED TO RULE 49 TO 58 OF THE IT RULES TO SAY THAT FOR ITP, THERE SHOULD BE REGISTRA TION AND CERTIFICATE ISSUED BY THE CONCERNED CIT/CCIT, OTHERWISE SHRI B.D. GIRI, ITP H AS NO RIGHT TO PRACTICE BEFORE THE INCOME-TAX AUTHORITIES OR BEFORE THE TRIBUNAL. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. THE LD. CIT REJECTED THE APPLICATION OF REGISTRATION BE CAUSE ON THE DATE FIXED FOR HEARING, THE COUNSEL FOR ASSESSEE SHRI S.M. SINHA D ID NOT PRODUCE ANY BOOKS OF ACCOUNT, BILLS, VOUCHERS AND OTHER RELEVANT DOCUMEN TS TO JUSTIFY ITS CLAIM. THE COUNSEL FOR THE ASSESSEE SHRI S.M. SINHA FILED HIS PERSONAL AFFIDAVIT, IN WHICH HE ITA NO. 133/AGRA/2013 5 HAS AFFIRMED TO HAVE PRODUCED THE BOOKS OF ACCOUNT AND ALL SUPPORTING DOCUMENTS BEFORE THE LD. CIT ON THE DATE OF HEARING. THE SAME FACTS ARE MENTIONED IN THE WRITTEN SUBMISSION FILED BY SHRI B.D. GIRI, ITP AS WELL AS IN THE STATEMENT OF FACTS FILED IN THE APPEAL PAPERS. CONSIDERING THE SUBMISS IONS OF THE LD. COUNSEL FOR THE ASSESSEE SUPPORTED BY HIS PERSONAL AFFIDAVIT, WE AR E OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CI T. THE LD. CIT ALSO APART FROM THE ABOVE FACTS MENTIONED IN THE IMPUGNED ORDER, HAS NO T DISCUSSED ANYTHING IN THE ORDER TO JUSTIFY HIS FINDINGS OF REJECTION OF APPLI CATION FOR REGISTRATION. HE HAS ALSO NOT DISCUSSED THE REPORT OF JCIT, RANGE-I, GWALIOR IN THE IMPUGNED ORDER WHETHER HE HAS RECOMMENDED FOR GRANT OR REFUSAL OF REGISTRA TION IN THE MATTER. IN THE ABSENCE OF DETAILED REASONED ORDER AND THE FACT THA T THE COUNSEL FOR ASSESSEE HAS FILED PERSONAL AFFIDAVIT TO SAY THAT ALL THE BOOKS OF ACCOUNT AND RELEVANT DOCUMENTS WERE PRODUCED BEFORE THE LD. CIT, WOULD CLEARLY EST ABLISH THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF LD. CIT. IN VIEW OF THE FACTS AND CIRCUMSTANCES NOTED ABOVE, WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER IN ISSUE TO THE FILE OF LD. CIT, GWALIOR WITH DIRECTION TO RE-DECIDE THE RE GISTRATION APPLICATION OF THE ASSESSEE AS PER LAW GIVING REASONS FOR DECISION IN THE IMPUGNED ORDER AND ALSO DISCUSSING THE REPORT OF JCIT, RANGE-I, GWALIOR IN THE ORDER, BY GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. THE ASSESSEE IS DIRECTED ITA NO. 133/AGRA/2013 6 TO CO-OPERATE WITH THE LD. CIT AND SHALL PRODUCE AL L THE BOOKS OF ACCOUNT AND OTHER REQUIRED DOCUMENTS BEFORE THE LD. CIT FOR FINALIZAT ION OF THE ORDER AS PER LAW. 6. NOW, WE TAKE UP THE ISSUE WHETHER SHRI B.D. GIRI HAS RIGHT TO APPEAR BEFORE THE INCOME-TAX AUTHORITIES OR THE TRIBUNAL. DURING THE COURSE OF ARGUMENTS, SHRI B.D. GIRI, ITP HAS SPECIFICALLY ADMITTED THAT HE DO ES NOT HAVE ANY CERTIFICATE OF REGISTRATION / RECOMMENDATION AS ITP BY THE LD. CIT , GWALIOR. HE IS PRACTICING MAINLY IN GWALIOR AND CLAIMED THAT SINCE HE IS RETI RED DEPARTMENTAL OFFICER, THEREFORE, HE HAS RIGHT TO PRACTICE AS ITP. THE REC ORD ALSO REVEALS THAT HE HAS FILED HIS POWER OF ATTORNEY ALONG WITH SHRI S.M. SINHA, A DVOCATE AND SIGNED THE POWER OF ATTORNEY AS ITP. THIS IS A WRONG PRACTICE IN FIL ING THE COMBINED POWER OF ATTORNEY AS ADVOCATE AS WELL AS ITP. SHRI S.M. SINH A HAS CORRECTLY FILED THE POWER OF ATTORNEY AS PROVIDED IN THE HIGH COURT RULES. SH RI B.D. GIRI, ITP IS NOT ADVOCATE REGISTERED WITH THE STATE BAR COUNCIL. THE REFORE, HE SHOULD NOT HAVE SIGNED THE POWER OF ATTORNEY EXECUTED IN FAVOUR OF SHRI S.M. SINHA, ADVOCATE. WE HOPE, SHRI S.M. SINHA WOULD TAKE CARE OF SUCH FACTS IN FUTURE. IT MAY ALSO BE NOTED HERE THAT SHRI S.M. SINHA, ADVOCATE IN HIS AFFIDAVI T HAS MENTIONED THAT HE HAS SIGNED THE BLANK ORDER-SHEET AS DIRECTED BY ITO (TE CH.). THE ADVOCATES /MEMBERS OF BAR ARE RECOGNIZED AS OFFICERS OF THE COURT, THE REFORE, THEY ARE EXPECTED TO MAINTAIN THEIR STATUS AND DECORUM IN THE COURT. THE Y ARE NOT EXPECTED TO SIGN BLANK ITA NO. 133/AGRA/2013 7 ORDER-SHEET AS WAS ADMITTED BY SRI S.M. SINHA, ADVO CATE, BEFORE ITO (TECH.). SHRI S.M. SINHA, ADVOCATE IS, THEREFORE, DIRECTED NOT TO INDULGE IN ANY TYPE OF MALPRACTICE IN FUTURE OTHERWISE HIS CONDUCT WOULD H AVE BEEN REPORTED TO STATE BAR COUNCIL FOR TAKING DISCIPLINARY ACTION AGAINST HIM AS PER LAW. 7. SECTION 288 OF THE IT ACT PROVIDES APPEARANCE BY AUTHORIZED REPRESENTATIVE AND READS AS UNDER : APPEARANCE BY AUTHORISED REPRESENTATIVE. 288. (1) ANY ASSESSEE WHO IS ENTITLED OR REQUIRED TO AT TEND BEFORE ANY INCOME-TAX AUTHORITY OR THE APPELLATE TRIBUNAL IN CONNECTION W ITH ANY PROCEEDING UNDER THIS ACT OTHERWISE THAN WHEN REQUIRED UNDER SECTION 131 TO ATTEND PERSONALLY FOR EXAMINATION ON OATH OR AFFIRMATION, MAY, SUBJECT TO THE OTHER PROVISIONS OF THIS SECTION, ATTEND BY AN AUTHORISED REPRESENTATIVE. (2) FOR THE PURPOSES OF THIS SECTION, 'AUTHORISED R EPRESENTATIVE' MEANS A PERSON AUTHORISED BY THE ASSESSEE IN WRITING TO APPEAR ON HIS BEHALF, BEING (I) A PERSON RELATED TO THE ASSESSEE IN ANY MANNER , OR A PERSON REGULARLY EMPLOYED BY THE ASSESSEE; OR (II) ANY OFFICER OF A SCHEDULED BANK WITH WHICH TH E ASSESSEE MAINTAINS A CURRENT ACCOUNT OR HAS OTHER REGULAR DEALINGS; OR (III) ANY LEGAL PRACTITIONER WHO IS ENTITLED TO PRA CTISE IN ANY CIVIL COURT IN INDIA; OR (IV) AN ACCOUNTANT; OR (V) ANY PERSON WHO HAS PASSED ANY ACCOUNTANCY EXAM INATION RECOGNISED IN THIS BEHALF BY THE BOARD; OR ITA NO. 133/AGRA/2013 8 (VI) ANY PERSON WHO HAS ACQUIRED SUCH EDUCATIONAL Q UALIFICATIONS AS THE BOARD MAY PRESCRIBE FOR THIS PURPOSE; OR (VIA) ANY PERSON WHO, BEFORE THE COMING INTO FORCE OF THIS ACT IN THE UNION TERRITORY OF DADRA AND NAGAR HAVELI, GOA , DAMAN AND DIU, OR PONDICHERRY, ATTENDED BEFORE AN INCOME-TAX AUTHORIT Y IN THE SAID TERRITORY ON BEHALF OF ANY ASSESSEE OTHERWISE THAN IN THE CAP ACITY OF AN EMPLOYEE OR RELATIVE OF THAT ASSESSEE; OR] (VII) ANY OTHER PERSON WHO, IMMEDIATELY BEFORE THE COMMENCEMENT OF THIS ACT, WAS AN INCOME-TAX PRACTITIONER WITHIN THE MEANING O F CLAUSE (IV) OF SUB- SECTION (2) OF SECTION 61 OF THE INDIAN INCOME-TAX ACT, 1922 (11 OF 1922), AND WAS ACTUALLY PRACTISING AS SUCH. EXPLANATION.IN THIS SECTION, 'ACCOUNTANT' MEANS A CHARTERED ACCOUNTANT WITHIN THE MEANING OF THE CHARTERED ACCOUNTANTS ACT, 1949 (38 OF 1949), AND INCLUDES, IN RELATION TO ANY STATE, ANY PERSON WHO BY VIRTUE OF THE PROVISIONS OF SUB-SECTION (2) OF SECTION 226 OF THE COMPANIES ACT, 1956 (1 OF 195 6), IS ENTITLED TO BE APPOINTED TO ACT AS AN AUDITOR OF COMPANIES REGISTERED IN THA T STATE. (3) [***] (4) NO PERSON (A) WHO HAS BEEN DISMISSED OR REMOVED FROM GOVERNM ENT SERVICE AFTER THE 1ST DAY OF APRIL, 1938; OR (B) WHO HAS BEEN CONVICTED OF AN OFFENCE CONNECTED WITH ANY INCOME-TAX PROCEEDING OR ON WHOM A PENALTY HAS BEEN IMPOSED UN DER THIS ACT, OTHER THAN A PENALTY IMPOSED ON HIM UNDER CLAUSE (II) OF SUB-SECTION (1) OF SECTION 271; OR (C) WHO HAS BECOME AN INSOLVENT, SHALL BE QUALIFIED TO REPRESENT AN ASSESSEE UNDER S UB-SECTION (1), FOR ALL TIMES IN THE CASE OF A PERSON REFERRED TO IN SUB-CLAUSE (A) * , FOR SUCH TIME AS THE CHIEF COMMISSIONER OR COMMISSIONER] MAY BY ORDER DETERMIN E IN THE CASE OF A PERSON REFERRED TO IN SUB-CLAUSE (B) * , AND FOR THE PERIOD DURING WHICH THE INSOLVENCY CONTINUES IN THE CASE OF A PERSON REFERRED TO IN SU B-CLAUSE (C) * . (5) IF ANY PERSON ITA NO. 133/AGRA/2013 9 (A) WHO IS A LEGAL PRACTITIONER OR AN ACCOUNTANT I S FOUND GUILTY OF MISCONDUCT IN HIS PROFESSIONAL CAPACITY BY ANY AUTHORITY ENTIT LED TO INSTITUTE DISCIPLINARY PROCEEDINGS AGAINST HIM, AN ORDER PASS ED BY THAT AUTHORITY SHALL HAVE EFFECT IN RELATION TO HIS RIGHT TO ATTEN D BEFORE AN INCOME-TAX AUTHORITY AS IT HAS IN RELATION TO HIS RIGHT TO PRA CTISE AS A LEGAL PRACTITIONER OR ACCOUNTANT, AS THE CASE MAY BE; (B) WHO IS NOT A LEGAL PRACTITIONER OR AN ACCOUNTA NT, IS FOUND GUILTY OF MISCONDUCT IN CONNECTION WITH ANY INCOME-TAX PROCEE DINGS BY THE PRESCRIBED AUTHORITY, THE PRESCRIBED AUTHORITY MAY DIRECT THAT HE SHALL THENCEFORTH BE DISQUALIFIED TO REPRESENT AN ASSESSE E UNDER SUB-SECTION (1). (6) ANY ORDER OR DIRECTION UNDER CLAUSE (B) OF SUB- SECTION (4) OR CLAUSE (B) OF SUB- SECTION (5) SHALL BE SUBJECT TO THE FOLLOWING CONDI TIONS, NAMELY : (A) NO SUCH ORDER OR DIRECTION SHALL BE MADE IN RES PECT OF ANY PERSON UNLESS HE HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HE ARD; (B) ANY PERSON AGAINST WHOM ANY SUCH ORDER OR DIREC TION IS MADE MAY, WITHIN ONE MONTH OF THE MAKING OF THE ORDER OR DIRECTION, APPEAL TO THE BOARD TO HAVE THE ORDER OR DIRECTION CANCELLED; AND (C) NO SUCH ORDER OR DIRECTION SHALL TAKE EFFECT UN TIL THE EXPIRATION OF ONE MONTH FROM THE MAKING THEREOF, OR, WHERE AN APPEAL HAS BE EN PREFERRED, UNTIL THE DISPOSAL OF THE APPEAL. (7) A PERSON DISQUALIFIED TO REPRESENT AN ASSESSEE BY VIRTUE OF THE PROVISIONS OF SUB-SECTION (3) OF SECTION 61 OF THE INDIAN INCOME- TAX ACT, 1922 (11 OF 1922), SHALL BE DISQUALIFIED TO REPRESENT AN ASSESSEE UNDER SUB- SECTION (1). 8. RULE 49 TO 57 OF THE IT RULES PROVIDE THE DEFINI TION OF AUTHORIZED INCOME- TAX PRACTITIONER, PRESCRIBED AUTHORITY, REGISTRATIO N AND PROCEDURE FOR GRANT OF CERTIFICATE OF REGISTRATION IN FAVOUR OF ITP. SAME READ AS UNDER : ITA NO. 133/AGRA/2013 10 49. IN THIS PART (A) 'AUTHORISED INCOME-TAX PRACTITIONER' MEANS ANY AUTHORISED REPRESENTATIVE AS DEFINED IN CLAUSE (V) OR CLAUSE (VI) OR CLAUSE (VII ) OF SUB-SECTION (2) OF SECTION 288; (B) 'PRESCRIBED AUTHORITY' MEANS THE PRESCRIBED AU THORITY REFERRED TO IN RULE 52; (C) 'REGISTER' MEANS THE REGISTER OF INCOME-TAX PR ACTITIONERS REFERRED TO IN RULE 53. ACCOUNTANCY EXAMINATIONS RECOGNISED. 50. THE FOLLOWING ACCOUNTANCY EXAMINATIONS ARE RECOGNI SED FOR THE PURPOSE OF CLAUSE (V) OF SUB-SECTION (2) OF SECTION 288, NAMEL Y : (1) THE NATIONAL DIPLOMA IN COMMERCE AWARDED BY TH E ALL-INDIA COUNCIL FOR TECHNICAL EDUCATION UNDER THE MINISTRY OF EDUCATION , NEW DELHI, PROVIDED THE DIPLOMA-HOLDER HAS TAKEN ADVANCED ACCOUNTANCY A ND AUDITING AS AN ELECTIVE SUBJECT FOR THE DIPLOMA EXAMINATION. (2) GOVERNMENT DIPLOMA IN COMPANY SECRETARYSHIP AW ARDED BY THE DEPARTMENT OF COMPANY AFFAIRS, UNDER THE MINISTRY O F INDUSTRIAL DEVELOPMENT AND COMPANY AFFAIRS, NEW DELHI.] (2A) FINAL EXAMINATION OF THE INSTITUTE OF COMPANY SECRETARIES OF INDIA, NEW DELHI. (3) THE FINAL EXAMINATION OF THE INSTITUTE OF COST AND WORKS ACCOUNTANTS OF INDIA CONSTITUTED UNDER THE COST AND WORKS ACCOUNTA NTS ACT, 1959 (23 OF 1959). (4) THE DEPARTMENTAL EXAMINATIONS CONDUCTED BY OR O N BEHALF OF THE CENTRAL BOARD OF DIRECT TAXES FOR ASSESSING OFFICERS, CLASS I OR GROUP 'A', ITA NO. 133/AGRA/2013 11 PROBATIONERS, OR FOR ASSESSING OFFICERS, CLASS II O R GROUP 'B', PROBATIONERS, OR FOR PROMOTION TO THE POST OF ASSES SING OFFICERS, CLASS II OR GROUP 'B', AS THE CASE MAY BE. (5) THE REVENUE AUDIT EXAMINATION FOR SECTION OFFIC ERS CONDUCTED BY THE OFFICE OF THE COMPTROLLER AND AUDITOR GENERAL OF INDIA. EDUCATIONAL QUALIFICATIONS PRESCRIBED. 51. THE FOLLOWING EDUCATIONAL QUALIFICATIONS ARE PRESC RIBED FOR THE PURPOSE OF CLAUSE (VI) OF SUB-SECTION (2) OF SECTION 288 : A DEGREE IN COMMERCE OR LAW CONFERRED BY ANY OF THE FOLLOWING UNIVERSITIES: (I) INDIAN UNIVERSITIES : ANY INDIAN UNIVERSITY INCORPORATED BY ANY LAW FOR T HE TIME BEING IN FORCE. (II) RANGOON UNIVERSITY. (III) ENGLISH AND WELSH UNIVERSITIES : THE UNIVERSITIES OF BIRMINGHAM, BRISTOL, CAMBRIDGE, DURHAM, LEEDS, LIVERPOOL, LONDON, MANCHESTER, OXFORD, READING, SHE FFIELD AND WALES. (IV) SCOTTISH UNIVERSITIES : THE UNIVERSITIES OF ABERDEEN, EDINBURGH, GLASGOW AN D ST. ANDREWS. (V) IRISH UNIVERSITIES : THE UNIVERSITIES OF DUBLIN (TRINITY COLLEGE), THE Q UEEN'S UNIVERSITY, BELFAST AND THE NATIONAL UNIVERSITY OF DUBLIN. (VI) PAKISTAN UNIVERSITIES: ANY PAKISTAN UNIVERSITY INCORPORATED BY ANY LAW FOR THE TIME BEING IN FORCE. PRESCRIBED AUTHORITY FOR SECTION 288(5)(B). 52. FOR THE PURPOSES OF CLAUSE (B) OF SUB-SECTION (5) OF SECTION 288, THE 'PRESCRIBED AUTHORITY' SHALL BE THE 97 [CHIEF COMMISSIONER OR COMMISSIONER] HAVING ITA NO. 133/AGRA/2013 12 JURISDICTION OVER THE CASE IN THE PROCEEDINGS CONNE CTED WITH WHICH THE INCOME-TAX PRACTITIONER IS ALLEGED TO BE GUILTY OF MISCONDUCT. REGISTER OF INCOME-TAX PRACTITIONERS. 53. EVERY CHIEF COMMISSIONER OR COMMISSIONER SHALL MAI NTAIN IN FORM NO. 38, A REGISTER OF AUTHORISED INCOME-TAX PRACTITIONERS TO WHOM CERTIFICATES OF REGISTRATION HAVE BEEN ISSUED BY HIM UNDER RULE 55. APPLICATION FOR REGISTRATION. 54. (1) ANY PERSON WHO WISHES TO HAVE HIS NAME ENTERED AS AN AUTHORISED INCOME- TAX PRACTITIONER IN THE REGISTER SHALL APPLY TO THE 97 [CHIEF COMMISSIONER OR COMMISSIONER] WITHIN WHOSE AREA OF JURISDICTION HE HAS BEEN PRACTISING. 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) 99 [OR CLAUSE (VIA)] OR CLAUSE (VII) OF SUB-SECTION (2 ) OF SECTION 288. (2) THE APPLICANT SHALL ALSO FURNISH SUCH FURTHER I NFORMATION AS THE CHIEF COMMISSIONER OR COMMISSIONER MAY REQUIRE IN CONNECT ION WITH THE DISPOSAL OF THE APPLICATION. CERTIFICATE OF REGISTRATION. 55. IF THE CHIEF COMMISSIONER OR COMMISSIONER IS SATIS FIED THAT THE APPLICANT FULFILS THE REQUIREMENTS OF CLAUSE (V) OR CLAUSE (V I) OR CLAUSE (VIA) OR CLAUSE (VII) OF SUB-SECTION (2) OF SECTION 288 AND HAS BEEN PRACTIS ING BEFORE INCOME-TAX AUTHORITIES FOR NOT LESS THAN ONE YEAR ON THE DATE OF THE APPLICATION, THE 1 [CHIEF COMMISSIONER OR COMMISSIONER] SHALL ENTER THE NAME OF THE APPLICANT IN THE REGISTER AND ISSUE HIM A CERTIFICATE OF REGISTRATIO N IN FORM NO. 40. CANCELLATION OF CERTIFICATE. 56. (1) A CERTIFICATE OF REGISTRATION SHALL STAND CANC ELLED WHEN THE NAME OF THE HOLDER OF THE CERTIFICATE IS REMOVED FROM THE REGIS TER UNDER THESE RULES. (2) WHEN THE NAME OF THE HOLDER OF THE CERTIFICATE IS REMOVED FROM THE REGISTER, THE CHIEF COMMISSIONER OR COMMISSIONER MAINTAINING THE REGISTER SHALL NOTIFY THE FACT OF SUCH REMOVAL TO THE AUTHORISED INCOME-TAX P RACTITIONER CONCERNED AND ALSO TO OTHER CHIEF COMMISSIONERS OR COMMISSIONERS OF IN COME-TAX (WHO SHALL NOTIFY ITA NO. 133/AGRA/2013 13 THE FACT OF THE REMOVAL TO THE INCOME-TAX AUTHORITI ES SUBORDINATE TO THEM) AND TO THE APPELLATE TRIBUNAL. CANCELLATION OF CERTIFICATE OBTAINED BY MISREPRESEN TATION. 57. (1) IF AT ANY TIME THE 5 [CHIEF COMMISSIONER OR COMMISSIONER] IS SATISFIED T HAT THE CERTIFICATE OF REGISTRATION WAS OBTAINED BY MIS REPRESENTATION AS TO AN ESSENTIAL FACT, HE SHALL ORDER THE REMOVAL OF THE NAME OF THE INCOME-TAX PRACTITIONER FROM THE REGISTER. (2) NO ORDER UNDER SUB-RULE (1) SHALL BE PASSED UNL ESS THE AUTHORISED INCOME-TAX PRACTITIONER HAS BEEN GIVEN A REASONABLE OPPORTUNIT Y OF BEING HEARD IN REGARD TO THE PROPOSED REMOVAL. 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 OFFIC ER, THEREFORE, WITHOUT ANY CERTIFICATE OF REGISTRATION AS ITP CAN APPEAR BEFOR E THE INCOME-TAX AUTHORITIES AND THE TRIBUNAL. HE HAS ALSO ADMITTED BEFORE US THAT T HOUGH HE IS PRACTICING IN GWALIOR, BUT HE IS NOT REGISTERED WITH THE CIT, GWA LIOR. 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 PASSE D ANY ACCOUNTANCY EXAMINATION RECOGNIZED BY THE BOARD OR ANY PERSON W HO HAS ACQUIRED SUCH EDUCATIONAL QUALIFICATIONS PRESCRIBED BY THE BOARD IN THIS BEHALF. SECTION 50 OF THE IT RULES PROVIDES ACCOUNTANCY EXAMINATIONS RECOGNIZ ED 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 POS SESSION OF EDUCATIONAL ITA NO. 133/AGRA/2013 14 QUALIFICATION WITHOUT CONDUCTING DEPARTMENTAL EXAMI NATION BY THE BOARD ITSELF IS NOT SUFFICIENT TO HAVE ANY RIGHT TO PRACTICE AS INC OME-TAX PRACTITIONER (ITP IN SHORT). ACCORDING TO RULE 53, 54 & 55 OF THE IT RUL ES, 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 P ROVE HIS ACCOUNTANCY EXAMINATION RECOGNIZED AND EDUCATIONAL QUALIFICATIO NS 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 R EGISTERED 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 PRO VIDES FOR CANCELLATION OF SUCH CERTIFICATE, WHICH IS NOT NECESSARY IN THIS CASE BE CAUSE ADMITTEDLY, SHRI B.D. GIRI IS NOT REGISTERED WITH CIT, GWALIOR AS HE HAS NOT OBTA INED ANY CERTIFICATE OF REGISTRATION AS ITP IN HIS FAVOUR. THE ABOVE PROVIS IONS 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 AN Y CERTIFICATE OF REGISTRATION IN HIS FAVOUR UNDER THE ABOVE PROVISIONS, HE CANNOT PR ACTICE 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 TAKIN G NECESSARY ACTION IN THE MATTER BECAUSE THE LAW WOULD NOT PROVIDE ANY UNAUTHORIZED PERSON/REPRESENTATIVE TO ITA NO. 133/AGRA/2013 15 APPEAR BEFORE THE INCOME-TAX AUTHORITIES OR THE TRI BUNAL. IN THIS VIEW OF THE MATER AND THE DIRECTIONS ABOVE, THE APPEAL OF THE ASSESSE E IS ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY