Commissioner of Income Tax vs Income Tax Appellate Tribunal

K. Balakrishnan Nair, J.—The petitioner is the Commissioner of Income Tax feeling aggrieved by the stand of the 1st respondent, reflected in Ext.P2 order dated 18,03.1999 that a rectification application u/s 254(2) of the Income Tax Act, 1961, should be signed by the Assessing Officer, this Writ Petition is filed. The brief facts of the case are the following:

The departmental representative, representing the Revenue before the Income Tax Department filed Ext.P1 application u/s 254(2) of the Act seeking rectification of certain mistakes in an appellate order. The assessee raised objections stating that the application is not maintainable for the reason that it is signed by the departmental representative and not by the Assessing Officer. Upholding the said objection, the said application was dismissed by Ext.P2 order. Though, another petition was attempted, seeking modification of Ext.P2, the same was dismissed by Ext.P4 order dated 26.06.2000. Hence this Writ Petition, challenging Exts.P2 and P4.

The petitioner would point out that the authorised representative is competent to appear before any authority in any proceedings, having regard to the notification issued by the Central Government in this regard. The definition of ''authorised representative'' reads as follows:

"authorised representative means a person authorised by the assesses in writing to appear on his behalf, being -

(7) 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 the assessee maintains a current account or has other regular dealings ;

(iii) any legal practitioner who is entitled to practise in any civil court in India; or

(iv) an accountant; or (v) any person who has passed any accountancy examination recognised in this behalf by the Board; or

(vi) any person who has acquired such educational qualifications 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 authority in the said territory on behalf of any assessee otherwise than in the capacity 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 of 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.

The petitioner also points out that Section 254(2) does not contemplate any application of any aggrieved party. It is a power conferred on the Tribunal to correct any mistake found in its order. Any one can bring the mistakes to the notice of the Appellate Tribunal. The said sub-section reads as follows:

The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1) and shall make such amendment if the mistake is brought to its notice by the assessee or the (Asseessing) Officer.

In view of the above definition of authorised representative and having regard to the sweep of Section 254(2), it is submitted that even assuming the application was defective, the Tribunal was bound to consider the matter on merits. It is also pointed out that the defect, if any, pointed out by the Tribunal, is not fatal and in a similar case, arising under the Reference Jurisdiction, the Madras High Court in Commissioner of Income Tax v. P.N.N. Bank, Salem 1972 ITR 497 has held that a reference application moved by the Income Tax Officer on behalf of the Commissioner is valid. The section specifically provided that it should be signed by the Commissioner himself. So the petitioner prays for quashing Exts.P2 and P4.

Though notice was served on the respondents, no one appeared for them. The learned Senior Counsel Shri. Pathrose Mathai assisted the court as amicus curiae. The learned Counsel, relying on Rule 34A of the Income Tax Appellate Tribunal Rules, submitted that the procedure for filing an appeal before the Tribunal will apply mutatis mutandis in the matter of filing a rectification application. Rule 47(1) provides that an appeal to the Tribunal shall be filed in Form 36. The said form provides for the signature of the appellant, apart from the signature of the authorised representative. So, it is pointed out that in the light of Rule 34A, the application for rectification should be signed by the Assessing Officer. Any application signed by the authorised representative will be defective and therefore, Ext.P1 petition was rightly dismissed.

Section 254(2) does not provide that an application is a must from the side of the assessee or the assessing officer to exercise the power under it. It appears to be a power which inhere in all courts and Tribunals to correct any apparent mistake in its order. Here, the said power has been expressly conferred by a statutory provision. So, if a mistake is noticed by the Tribunal, either suo motu or on application of either of the parties, it may rectify it u/s 254(2). If a genuine mistake is pointed out in a defective application by one of the parties, still the Appellate Tribunal cannot shirk its responsibility in rectifying the apparent mistake in the records. The said section does not provide that there should be an application in the prescribed manner. Therefore, the prescription contained in Rule 34A made apparently in exercise of the power conferred on the Appellate Tribunal u/s 255(5) cannot curtail the sweep of the powers of the Tribunal u/s 254(2). Therefore, I feel that the exercise of power u/s 254(2) is not dependent upon the validity of the application submitted by the party concerned. If the jurisdictional pre-conditions contemplated u/s 254(2) are present, the tribunal is bound to exercise the said power which is conferred as an enabling power. It is a power coupled with a duty to act when circumstances warranting the exercise of that power are shown to exist. So, even assuming the application filed by the authorised representative is defective, still, if the same discloses the matters relevant u/s 254(2), the Tribunal is bound to exercise its power under the said sub-section. It is declared so. In the result, Exts. P2 and P4 are quashed and the matter is remitted to the Tribunal for a fresh decision in the matter as to whether it should exercise its power u/s 254(2) or not, in accordance with law, without any further delay.

The O.P. is disposed of as above.