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TMI Blog2013 (7) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... that since retired departmental Officer, therefore, without any certificate of registration as ITP can appear before the Income-tax Authorities and the Tribunal – Held that:- 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 - 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 - 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. - IT Appeal No. 133 (Agra) of 2013 - - - Dated:- 9-7-2013 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Technical) asked him to sign the blank order-sheet and he has signed the blank order-sheet before him in the matter. The written submission is also filed on record 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 examined the same but to their surprise, the Commissioner noted in the impugned order that no books of account or other material have been produced before him. During the course of arguments, the ld. counsel for the assessee were required to explain that when wrong facts have been recorded by the ld. CIT, Gwalior in the impugned 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 he was asked to explain that instead of taking recourse as per law in moving application u/s. 154 before the ld. CIT, Gwalior, whether it would be proper to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recommended for grant or refusal of registration in the matter. In the absence of detailed reasoned order and the fact that 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 establish 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 registration 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 assessee. The assessee is directed to co-operate with the ld. CIT and shall produce all the books of account and other required documents before the ld. CIT for finalization 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 doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 definition of authorized Income-tax Practitioner, prescribed authority, registration and procedure for grant of certificate of registration in favour of ITP. Same read as under : 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 authority referred to in rule 52; (c) "register" means the register of income-tax practitioners referred to in rule 53. Accountancy examinations recognised. 50. The following accountancy examinations are recognised for the purpose of clause (v) of sub-section (2) of section 288, namely : (1) The National Diploma in Commerce awarded by the All-India Council for Technical Education under the Ministry of Education, New Delhi, provided the diploma-holder has taken Advanced Accountancy and Auditing as an elective subject for the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 information as the Chief Commissioner or Commissioner may require in connection with the disposal of the application. Certificate of registration. 55. If the Chief Commissioner or Commissioner is satisfied that the applicant fulfils the requirements of clause (v) or clause (vi) or clause (via) or clause (vii) of sub-section (2) of section 288 and has been practising 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 registration in Form No. 40. Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 car ..... X X X X Extracts X X X X X X X X Extracts X X X X
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