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TMI Blog2011 (12) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1963, the Members of the Tribunal are debarred from appearing before the Tribunal on their retirement as a representative for either of the parties. Rule 13E in this regard was inserted in the in ITAT Members (Recruitment and Conditions of Service) Rules, 1963 w.e.f. 3.6.2011. Thereafter a controversy was raised whether Members retired after the said notification are eligible to represent the assessee or Department before the Tribunal. A Special Bench of the Tribunal was constituted to adjudicate this issue. The Special Bench vide order dated 15.9.2009 in the case of Concept Creations v. ACIT, Range, Panipat examined this issue in detail and has given a categorical finding that the Members who have retired after the aforesaid notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench is distinguishable on several point and is not applicable on me for several reasons. They are: a. Above amendment in service conditions would be applicable to new appointees to the ITAT as member. At the time when I joined ITAT as member I was not aware of such condition. Had I knew about it I might opted not to join the ITAT. b. This creates an artificial discrimination between two categories of Members one who retired before 03-06-2009 and others who retired after this date even though both may have been appointed to the Tribunal on the same date. It cannot be called to be a reasonable classification and offends Article 14 of the Constitution of India. c. Further Amendment by way of service conditions could only be prospective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appear before any subordinate Court also. Section 30 thereof made effective from 15th June 2011 clearly enables any advocate whose name is entered in the State Roll shall be entitled as of right to practice throughout the territories to which this Act extends i.e. he can appear in all courts including the Supreme Court, before any Tribunal and before any other authority or person before whom such advocate is entitled to appear. Advocate Act is also a superior Act as compared to the amendment made in the ITAT (Recruitment and conditions of services) Rules 1963. f. The concept of bias being the apparent underlying reason for introducing this amendment in ITAT (Recruitment and conditions of services) Rules 1963 has been apparently distorte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly Section 288 only. It cannot travel to a different legislation alien to I.T. Act unless I.T. Act was silent on the point raised before the Bench. Hon. Punjab & Haryana High Court in Kulwant Singh vs. ITO (1970) 75 ITR 99 has held that the authorised representative derives his right from the provisions of section 288 only. 6. In view of above reasons Above judgment of the Special Bench may not be applied on me and I may be permitted to make appearance before ITAT. With utmost respect Yours sincerely Sd/- (D.C.Agrawal) Advocate Enrll. No. 1221/2001 (Delhi Bar Counsel) Dated: 28th December 2011" 2. Though there may be some force in the arguments of Shri. D. C. Agrawal, yet we are bound by the order of the Special Bench of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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