Hon'ble Yogesh Chandra Gupta,J.
(Delivered by Yogesh Chandra Gupta, J.) Order on the Application No.202135 of 2005:-
The above application filed under Section 5 of the Limitation Act, for condonation of delay in filing the accompanying Income Tax Appeal under Section 260 A of the Income Tax Act, 1961 (hereinafter referred to as the Act), is up for consideration.
The appeal has been preferred against the order dated 25th of November, 2004 passed in I.T.A. No.122 (Alld.)/2001 for the Assessment Year 1997-1998. The office has reported that the said appeal is barred by time by 48 days.
The present application has been filed for condonation of delay, if any, in filing the above appeal. In support of the application, two affidavits, one of Sri R.L. Yadav, the General Manager of the appellant bank and another of Sri Ajai Kumar Gupta who was the local counsel of the appellant bank, have been filed.
In the application, the stand taken by the appellant is that there is no delay in filing the appeal and alternatively the delay, if any, in filing the appeal be condoned. It has been stated in the affidavit of Sri R.L. Yadav that the assessee was represented before the Tribunal by Sri S.P. Agrawal and Sri Ajai Kumar Gupta, Advocates, and the appeal was decided by the Tribunal by the order dated 25th of November, 2004, a copy whereof was served on 10th of December, 2004 on the counsel for the assessee appellant namely Sri S.P. Agrawal, Advocate. The certified copy of the order dated 25th of November, 2004 was not served on the assessee appellant by the office of the Tribunal in accordance with Rule 35 of the Appellate Tribunal Rules. The assessee appellant did not have any intimation of the order dated 25th of November, 2004 and it first gained the knowledge of the order from Sri Ajai Kumar Gupta, Advocate, on 24th of May, 2005. It has been further deposed that the facts as stated in the affidavit of Sri Ajai Kumar Gupta, Advocate, may be taken into consideration for the purposes of explaining the delay in filing the appeal.
Sri Ajai Kumar Gupta, Advocate, has deposed that he received the copy of the order dated 25th of November, 2004 by post from Sri S.P. Agrawal, Advocate, sometimes in the month of January, 2005 and 2 forgot to communicate to the appellant. The copy of the order was misplaced and when on 24th of May, 2005 Sri R.L. Yadav, the General Manager of the assessee bank contacted him and inquired about the result of the aforestated Income Tax Appeal No.122 of 2001, then, the deponent made efforts to search out the aforestated copy of the order dated 25th of November, 2004 and it was found on the same day i.e. 24th of May, 2005 and was supplied to Sri R.L. Yadav on that very day. The said copy was placed in other file by mistake.
On the facts as stated above, in substance, the contention of the appellant is that there is no delay in filing the appeal.
In reply, a counter affidavit on behalf of the department of Sri Sunil Kumar Srivastava has been filed on the pleas inter alia that copy of the order dated 25.11.2004 of the Tribunal was served on Sri S.P. Agrawal, Advocate, on 10th of December, 2004. In accordance with the provisions of the Rule 35 of the Income Tax Appellate Tribunal Rules, the service of the order on Sri S.P. Agrawal, Advocate, is valid and proper in asmuch as Sri S.P. Agrawal, Advocate, was duly authorised "to receive all documents" on behalf of the appellant bank which is apparent from the Vakalatnama executed by the appellant bank in favour of Sri S.P. Agrawal, Advocate. Along with the counter affidavit, a photostat copy of the Vakalatnama has been filed.
Heard Sri S.D. Singh, learned counsel for the appellant. No assistance whatsoever was rendered by Sri R.K. Upadhyay, learned standing counsel for the respondent, who after close of the argument of the appellant's counsel sought for adjournment and the said prayer was rejected. He rendered no assistance, therefore, will not be entitled to claim any fees from the department.
The learned counsel for the appellant submits that in view of Rule 35 of Income Tax Appellate Tribunal Rules as also the language employed in Section 260 A of the Income Tax Act, the copy of the order of the Tribunal was not validly served on the appellant assessee. Elaborating the argument, it was stated that the service upon the counsel for the assessee is not a valid service in as much as under Rule 35 of the Rules referred to above, the Tribunal was duty bound to communicate to the parties, after the order is signed. In other words, the service of the order to be a valid service, should be made to the assessee and to the Commissioner. Reliance was placed by him on the following decisions:-
1. Commissioner of Sales Tax, U.P., Lucknow Vs. Shiv Narain Rameshwar Prasad : (1970) 26 STC 299;
2. Sunder Lal Janeshwar Das Vs. Commissioner of Sales Tax, U.P., Lucknow: (1971) 27 STC 282;
3. M/s. Arjun Lal Upadhyay Vs. Commissioner of Sales Tax, U.P., 1987 U.P.T.C. 514; and
4. Tulsi Das Babu Lal, Jhansi and another Vs. State of U.P., 1991 U.P.T.C. 1225 (DB).
All the above cases relate to the provisions of the U.P. Sales Tax Act, 1948 and the Rules framed thereunder.
Considered the above submission of the learned counsel for the applicant but it is difficult to agree with him for the reasons mentioned hereinafter.
Section 282 of the Act is relevant to answer the controversy involved herein. The heading of the said Section is "Service of Notice Generally". Its Sub-section provides that a notice under the Act may be served on the person named either by the post or as if it were summon issued by a Court under the Code of Civil Procedure, 1908. A plain reading of the said Section would show that it provides two modes of service : (i) by post or (ii) as if it were summon issued by a Court under the Code of Civil Procedure, 1908.
It may be noted that the two modes prescribed above are disjunctive. In the case on hand, it is not the case of the department even, that the notice was served by post. The question which falls for consideration is whether a copy of the order of Tribunal was validly served or shall be deemed to be served on the appellant assessee as its copy was admittedly received by its counsel Sri S.P. Agrawal, Advocate who, later on, passed it on to another counsel of the assessee appellant and where from it was collected by the assessee appellant as per its convenience.
It is admitted case of the parties that a certified copy of the order of the Tribunal was received by Sri S.P. Agrawal, Advocate, who was the appellant's counsel before the Income Tax Appellate Tribunal. Along with the counter affidavit, a copy of Vakalatnama in favour of the said counsel has been filed which shows that the said counsel was duly authorized to receive all documents on behalf of the assessee appellant. Sri S.D. Singh, learned counsel for the appellant, as a matter of fact, did not dispute before us the fact that the said counsel was authorized to receive all the documents on behalf of the assessee appellant. This being so, it is but evident that the said learned counsel was duly authorized representative of the assessee. Order 5 Rule 12 C.P.C. lays down a provision for service on the defendant or on his agent. It says that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.
In view of the above express provision, a service of the copy of order of the Tribunal is sufficient as the same was served on the authorized representative of the assessee appellant. Rule 2 (ii) of the Income Tax Appellate Tribunal Rules 1963 defines "authorised representative". It means, beside other things, a person duly authorized by the assessee under Section 288 of the Income Tax Act to attend before the Tribunal. Section 288 of the Income Tax Act permits 4 an assessee to be represented through an authorized representative to attend before any Income Tax Authority or the Appellate Tribunal in connection with any proceedings under the Income Tax Act. Its Sub- section (2) (iii) says that any legal practitioner who is entitled to practice in any Civil Court in India can be one of the authorized representatives of an assessee provided such person is authorized by the assessee in writing to appear on his behalf. A conjoint reading of Section 288 of the Act along with the Order 5 Rule 12 C.P.C. makes it clear that a legal practitioner is authorized representative of an assessee who has executed a Vakalatnama in favour of such legal practitioner to appear on his behalf. There is inherent in the position of counsel an implied authority to do that is all expedient, proper and necessary for the conduct of the case and the settlement of dispute as said by the Apex Court in the case of Manohar Bahal Vs. K. N. Misra : AIR 1972 SC 1632. What to say of implied authority to do all that is expedient, proper and necessary, in the case on hand there being an express authorization by the appellant assessee in favour of its counsel Sri Agrawal, it cannot be said that the receipt of copy of the order of Tribunal by him was in any manner inexpedient or improper or unnecessary.
The submission of the learned counsel for the appellant that in view of the plain language of Section 260 A of the Act, service should be affected on the assessee is without any substance. Its Sub- section (2) (a) provides that an appeal can be filed within 120 days from the date on which order appealed against is received by the assessee or the Chief Commissioner or the Commissioner. The phrase "received by the assessee" means received by the assessee either himself or through his authorized agent which in the present case, would be the advocate duly appointed by him to conduct the case. A legal practitioner is an agent of the client whose brief he holds.
Under Order 3 Rule 3 C.P.C. processes served on a recognized agent of a party, or on an Advocate of the party shall be effectual as if the same had been served on the party himself as held in Jangi Bhagat Vs. CIT : AIR 1930 Patna 121. Allahabad High Court in Moti Lal Tek Chand Vs. CIT (1967) 64 ITR 377 has held that a Munim is an authorized agent to receive notices on behalf of the Firm of his employers. Service on the Secretary of Managing Director of a notice addressed to the Company held to be valid service in General Commercial Corporation Limited Vs. CIT (1966) 62 ITR 459. The crucial fact is whether the person on whom service has been affected, was empowered to accept the service or not. In the case on hand, on undisputed facts, the advocate was empowered to accept the copy of the order of the Tribunal and therefore, the service on him is valid service for the purposes of calculation of limitation for filing an appeal.
The learned counsel for the appellant rightly accepted the position that in view of the recent Full Bench decision of the Court CIT Vs. Shri Mohd. Farooq, 2009 U.P.T.C 1162 (F.B.) an 5 application under Section 5 of the Limitation Act for condonation of delay in filing the appeal is not maintainable.
Besides above, the period of limitation for the purposes of filing of an appeal starts running from the date of receipt of the copy of the order of the Tribunal, which cannot be an uncertain or disputed date. For the purposes of calculation of period of limitation, its starting point must be a definite point and it cannot be left to be guessed. Nor the said event can be left at the sweet-will of either party to a litigation. On the facts of the present case, if the date of service on an assessee is taken as the learned counsel contends for the purposes of calculation of limitation, it will be on the sweet will of such assessee not to collect a copy from the office of his lawyer and to extend the period of limitation to the extent one desires. Such an interpretation would be against the judicial norms and will amount travesty of justice.
So far as the cases relied upon by the appellant are concerned, they were delivered under different Statutes and cannot be pressed into service in view of specific provisions in this regard under Sections 282 and 288 of the Income Tax Act, therefore, need not be discussed.
In view of the above discussion, we find no merit in the application. The application is accordingly dismissed. The appeal is dismissed as barred by time.
(Prakash Krishna, J.) (Yogesh Chandra Gupta, J.) Order Date :- 29.1.2010 LBY