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TMI Blog1966 (10) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner to file powers-of-attorney as prescribed in Form No. 43-A and rule 66-A of the Bombay Sales Tax Rules, 1959. He also directed that the said authorisations should bear a general stamp of Rs. 3.30 as provided by the Bombay Stamp Act. In view of these defects, which according to the first respondent had to be rectified, he did not accept the petitioner's powers-of-attorney filed in the case. An order to that effect was formally passed by the first respondent on 8th November, 1965. The petitioner in this petition challenges the legality of this order. Special Civil Application No. 1131 of 1965 is at the instance of Shri Gokulprasad Agarwal, who is an Advocate of this Court. He is enrolled under the Advocates Act, 1961. This petitioner appeared before the Assistant Commissioner of Sales Tax who is impleaded as the first respondent in this petition, the client having empowered him to appear and plead on his behalf and a vakalatnama was filed before that authority. On this vakalatnama he affixed a court-fee stamp of Rs. 2. The first respondent in this case also required the petitioner to file an authority in Form No. 43-A as prescribed in the Bombay Sales Tax Rules, and wanted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity of being heard. (4) Any person against whom any order of disqualification is made under this section may within one month of the date of communication of such order appeal to the Tribunal to have the order cancelled. (5) The order of the Commissioner shall not take effect until one month of the making thereof or when an appeal is preferred until the appeal is decided. (6) The Commissioner may at any time suo motu or on an application made to him in this behalf, revoke any order made against any person under sub-section (2) and thereupon such person shall cease to be disqualified." As will appear from sub-section (1) above, the authorisation has to be in a prescibed form. The word "prescribed" is defined in section 2(21) of the Act and means prescribed by rules. Rules have been made for this purpose and the relevant rules are rule 66 and rule 66-A. Under rule 66, a sales tax practitioner is eligible for having his name entered In the list of sales tax practitioners maintained under section 71, if he holds the requisite qualifications mentioned in clauses (a), (b), or (d) of sub-rule (1). Under sub-rule (2) of rule 66, the Commissioner is required to maintain a lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ....agrees to ratify all acts done by the said Shri....................in pursuance of this authority. Place.................... Signature.................... Dated.................... Statust.................... ACCEPTANCE I....................do hereby state that I am a relative of..................../a person regularly employed by..................../a legal practitioner/a Chartered Accountant/a Sales Tax Practitioner duly qualified under section 71 of the Bombay Sales Tax Act, 1959, and that I accept the aforesaid appointment. Place.................... Dated.................... Signature.................... -------------------------------------------------------------------------------------------------------------- State here the name of the dealer as entered in the certificate of registration. State here status such as proprietor, partner, director, manager, secretary or officer in charge. Note: Strike off which is not applicable." Now, the contentions of the petitioner in each of these cases are twofold: (1) That the Sales Tax Authorities cannot insist that their authorisation entitling the petitioners in either case to attend must contain all the conditions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A reference in this respect may be made to the decision of the Supreme Court in Aswini Kumar Ghosh and Another v. Arabinda Bose and Another[1953] S.C.R. 1. As held by the majority, "the practice of law in India generally involves the exercise of both the functions of acting and pleading on behalf of the litigant parties, and when an Act confers upon an Advocate a right to practise in any Court, it is legitimate to understand the expression as authorising him to appear and plead as well as to act on behalf of the suitor in all Courts..." The question that was canvassed before the Supreme Court was with respect to the right of an Advocate enrolled under section 2 of the Supreme Court Advocates Practising in High Courts Act, 1961, practising on the original side of the Calcutta High Court. It is therefore clear that so far as a legal practitioner who is an Advocate having the right to practise as an Advocate under the Advocates Act is concerned, he has a right to appear, plead and act if so authorised by his client. Section 71 of the Sales Tax Act requires the authorisation to be in a certain form, and if an Advocate is engaged to appear for an assessee before any authority under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the person to be authorised whether or not one of the terms of engagement of that person should include an authority to act on behalf of such assessee. This position also does not now seem to be seriously disputed. Therefore, the third contention which now survives for consideration is whether in the case of persons authorised other than an Advocate, authority to attend includes the authority to appear and plead on behalf of an assessee. We put it to the learned counsel appearing for the department to indicate the ambit of the words "to attend" if it were not to include the rights to appear as well as to plead on behalf of the assessee, but did not get any elucidation at the Bar. A similar provision is to be found in the law relating to incometax. Section 288(1) of the Indian Income-tax Act, 1961, which is corresponding to section 61 of the Indian Income-tax Act of 1922, makes provision for appearance of authorised representative. Subsection (1) of section 288 of the Act provides that any assessee who is entitled or required to attend before any Income-tax authority or the Appellate Tribunal in connection with any proceedings under this Act otherwise than when required under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion so that his case may be properly laid before the court'. The words 'to appear', in my opinion, mean 'to have audience before the court'. The material provisions which govern the rights of legal practitioners, either to appear or to act or to plead in court, are to be determined in the light of the provisions contained in Order III of the Code as also the Civil Rules and Orders framed under the powers conferred on this Court by Clause 37 of the Letters Patent." It is not disputed that the power to plead is not included and is something different from the power to act. The learned counsel appearing for the State invited our attention in this respect to a decision of this Court in A.S. Patel v. National Rayon CorporationA.I.R. 1955 Bom. 262. The learned Chief justice on behalf of the Court observed that pleading which is a species of the right of audience could not be included in application or act in or to any court. When section 71 itself makes a distinction between authorisation to attend and a further authorisation to act, which can be in favour of another person, by the assessee, it must clearly be intended that in order to appear and plead for audience before the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be only according to the letter of the form and nothing outside or beyond that may be included. After all the prescribed form is only indicative of the nature of the agreement which must subsist between the parties, who authorise anybody to appear on behalf of an assessee. But neither the section nor the rules imply a further power of the rulemaking authority, or for the matter of that, any officer of the department to insist that no other term of the contract of engagement shall form part of the document which evidences the contract. We therefore do not see how objection could be raised by any authority to inclusion of other terms of engagement between the assessee and the authorised person concerned, merely because a form comes to be prescribed. Such construction would unjustifiably limit the text of the agreement between the parties so far as authorisation is concerned. This takes us to the next question as to the proper fee to be paid on such authorisation in writing. The view of the department seems to be founded on the provisions of the Bombay Stamp Act, and in particular, item 48 of Schedule I of that Act which requires a powerof-attorney as defined in section 2(r), wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26., and an earlier decision reported in In re PunamchandA.I.R. 1914 Bom. 138. on which the later decision was founded. The learned counsel for the department has disputed this contention. He has relied on one of the recent decisions of the Supreme Court in Jagannath Prasad v. State of Uttar Pradesh[1963] 14 S.T.C. 536; A.I.R. 1963 S.C. 416. In that . case the question was whether a Sales Tax Officer under the U.P. Sales Tax Act could be said to be a court for the purpose of section 195 of the Code of Criminal Procedure. After examining several authorities including the decision of this Court, it was then held that a Sales Tax Officer is not a court within the meaning of section 195(2) of the Code of Criminal Procedure though Sales Tax Officers have certain powers which are similar to the powers exercised by courts. A Full Bench decision of this Court in In re Punamchand(1914) I.L.R. 38 Bom. 642; A.I.R. 1914 Bom. 138. and a later decision of this Court in State v. Nemchand[1956] 7 S.T.C. 404; A.I.R. 1956 S.C. 326. were referred to in paragraph 7 of the judgment of the Supreme Court, and yet the decision was contrary to what was decided in the earlier case. It must therefore be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o decide certain questions by judicial approach or in a judicial manner, these officers are none the less executive officers of the State. In support of this proposition the learned counsel relies on certain observations In the decision of the Supreme Court in Smt. Ujjam Bai v. State of Uttar PradeshA.I.R. 1962 S.C. 1621. At page 1666, paragraph 118, Justice Hidayatullah speaking for the Court observed as follows: "The taxing departments are instrumentalities of the State. They are not a part of the Legislature; nor are they a part of the judiciary. Their functions are the assessment and collection of taxes, and in the process of assessing taxes, they have to follow a pattern of action, which is considered judicial. They are not thereby converted into Courts of civil judicature. They still remain the instrumentalities of the State and are within the definition of 'State' in Article 12. In this view of the matter, their actions must be regarded, in the ultimate analysis as executive in nature, since their determinations result in the demand of tax which neither the Legislature nor the judiciary can collect. Thus, the actions of these quasi-judicial bodies may be open to challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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