9911796707
TMI Blog1969 (5) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Estate Duty in the estate duty circle on 8th May, 1963. He took over charge of the estate duty circle at Patiala some time in June, 1963. He held additional charge of Income-tax Officer, Patiala, from 13th July, 1964, to 9th April, 1965. Since 9th April, 1965, the petitioner continued to serve as Assistant Controller of Estate Duty and did not have the charge of any income-tax ward. He had nothing to do with the execution or administration of the Act and was not an income-tax authority within the meaning of sections 116 and 288(3) of the Act. On the contrary, he was an estate duty authority, being Assistant Controller of Estate Duty, under the Estate Duty Act, 1953. On 20th March, 1968, he voluntarily submitted his resignation from his employment as Assistant Controller of Estate Duty and the same was accepted, with the result that he was relieved on 16th April, 1968. The petitioner was a law graduate and was entitled to represent the income-tax assessees under section 288(2) of the Act as an authorised representative. On 17th August, 1968, he filed a power of attorney before Shri B. D. Seth, Income-tax Officer, B-Ward, Ludhiana, for representing one Baldev Sahai, proprietor o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction between the income-tax establishments and the estate duty establishments. In the very first notification dated 15th October, 1953, the Central Government, in exercise of powers conferred by section 4(2) of the Estate Duty Act, appointed every Commissioner of Income-tax, every Inspecting Assistant Commissioner of Income-tax and every Income-tax Officer for the time being functioning as such, to be respectively a Controller of Estate Duty, a Deputy Controller of Estate Duty and an Assistant Controller of Estate Duty. Since then, the jurisdiction of the particular Assistant Controller of Estate Duty-cum-Income-tax Officer had been fixed from time to time in accordance with the exigencies of administration of those laws. Under the latest notification, the jurisdiction of the petitioner was fixed as such Assistant Controller of Estate Duty-cum-Income-tax Circle, Patiala. The petitioner submitted his resignation on 20th March, 1968, and the same was accepted by respondent No. 2 on 16th April, 1968. He was working as Income-tax Officer, Class II-cum-Assistant Controller of Estate Duty, Patiala, and his resignation was accepted by respondent No. 2 as he was the appointing authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purposes of this section, 'authorised representative' 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 the assessee maintains a current account or has other regular dealings ; or (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 ...... (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, and was actually practising as such ........ (3) Notwithstanding anything contained in this section, if the authorised representative is a person formerly employed as an income-tax authority, not below the rank of Income-tax Officer, and has retired or resigned f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in section 116). Consequently, it is immaterial if, immediately before the date of his retirement or resignation, he had not acted as income-tax authority for a period of three years or more. If at any time during his service he had acted as such for a period, of three years or more, the disqualification attaches. "Formerly employed as an income-tax authority, not below the rank of Income-tax Officer" in the sub-section means in the service of the Government as an income-tax authority, not below the rank of Income-tax Officer, at any time and not necessarily immediately preceding the date of resignation or retirement. "Employed" can also be interpreted as "holding the post of" or "working as" or the state or fact of being employed" or "something on which a person or thing is employed". The petitioner, in my opinion, fully answers the requirement of this sub-section. Admittedly, he had been an Income-tax Officer and had served for not less than three years in that capacity from the date of his first appointment as an Income-tax Officer. Later on, he had resigned. It is true that he had tendered his resignation as Assistant Controller of Estate Duty. But he was holding the post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute are clear, it is unnecessary to make a reference to the Select Committee Report or the objects and reasons of the Act to find out the intention of the legislature in enacting a particular provision of the Act. The language employed in section 288(3), in my opinion, is quite clear and capable of only one construction which I have already given above. Coming to the alternative argument of the learned counsel, the point for determination is whether section 288(3) is ultra vires article 19 of the Constitution. Learned counsel submitted that the petitioner had a fundamental right to practise any profession or to carry on any occupation, trade or business as guaranteed by article 19(1)(g) of the Constitution. Section 288(3), if interpreted in the way it has been done above, would interfere with that fundamental right of his. He would be prevented from acting as an authorised representative of his client, Messrs. Dewan Chand Baldev Sahai, before the Income-tax Officer, Shri B. D. Seth. The petitioner was a law graduate and was entitled to represent the income-tax assessees under section 288(2) as an authorised representative. By virtue of section 288(3), he would not be abl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be appointed as an authorised representative so that the assessee's choice is limited to the prescribed persons only. He cannot appoint anybody or everybody as his authorised representative according to his own choice or wish. Even if it be assumed for the sake of argument that it was the petitioner's profession to act as the authorised representative of the assessees, then that profession was to be carried on subject to the restrictions contained in the section itself. It could be carried on by those persons only who possessed the qualifications mentioned in that section or who were permitted to do so by the same. Those, who were not so qualified, could not claim that they were entitled to carry on that profession, just as no person could take to the profession of an advocate, an architect, a chartered accountant, a physician or a surgeon, unless he had acquired the necessary qualifications prescribed by various statutes regulating the carrying on of those professions. It may also be noted that the restriction is operative only for two years from the date of retirement or resignation, which cannot be said to be unreasonable from any standard. It is also noteworthy that sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power of the High Courts to lay down rules relating to the admission of lawyers to represent suitors before them. It is equally subject to licence being obtained from the court before which the privilege to practise is sought, on payment of the stamp duty imposed by the Stamp Act." In view of the foregoing, I would hold that there is no merit in the contention of the learned counsel that section 288(3) is ultra vires article 19(1)(g) of the Constitution. It was then half-heartedly argued that section 288(3) was also violative of article 14 of the Constitution. There is no substance in this submission as well. All that was stated in the petition regarding article 14 was that sub-section (3) of section 288 of the Act denied the petitioner equality before the law and was violative of article 14 of the Constitution and was a colourable piece of legislation. It is undisputed that this court cannot examine the question of the unconstitutionality of the Act on the score of article 14 in the absence of specific allegations supported by the requisite material in that behalf. Undoubtedly, the presumption is always in favour of the constitutionality of an enactment and the burden is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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