Kerala H.C : a rectification application under s. 254(2) of the IT Act, 1961, should be signed by the AO, this writ petition is filed

High Court Of Kerala

CIT vs. Income Tax Appellate Tribunal

Section 254(2), ITAT Rule 34A

K. Balakrishnan Nair, J.

OP No. 30403 of 2000

4th July, 2006

Counsel Appeared

P.K. Ravindranatha Manon & George K. George, for the Applicant : M. Pathrose Mathai, Amicus Curiae


K. Balakrishnan Nair, J. :

The petitioner is the CIT. Feeling aggrieved by the stand of the 1st respondent, reflected in Ext. P2 order dt. 18th March, 1999 that a rectification application under s. 254(2) of the IT Act, 1961, should be signed by the AO, this writ petition is filed. The brief facts of the case are the following. The Departmental Representative, representing the Revenue before the IT Department filed Ext. P1 application under s. 254(2) of the Act seeking rectification of certain mistakes in an appellate order. The assessee raised objections stating that the application is not maintainable for the reason that it is signed by the Departmental Representative and not by the AO. Upholding the said objection, the said application was dismissed by Ext. P2 order. Though, another petition was attempted, seeking modification of Ext. P2, the same was dismissed by Ext. P4 order dt. 26th June, 2000. Hence this writ petition, challenging Exts. P2 and P4. The petitioner would point out that the Authorised Representative is competent to appear before any authority in any proceedings, having regard to the notification issued by the Central Government in this regard. The definition of ‘Authorised Representative’ reads as follows : “’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; (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 (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 IT 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 cl. (iv) of sub-s. (2) of s. 61 of the Indian IT Act, 1922 (11 of 1922) and was actually practising as such.”

The petitioner also points out that s. 254(2) does not contemplate any application of any aggrieved party. It is a power conferred on the Tribunal to correct any mistake found in its order. Anyone can bring the mistakes to the notice of the Tribunal. The said sub-section reads as follows : “(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subs. (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the AO.” In view of the above definition of Authorised Representative and having regard to the sweep of s. 254(2), it is submitted that even assuming the application was defective, the Tribunal was bound to consider the matter on merits. It is also pointed out that the defect, if any, pointed out by the Tribunal, is not fatal and in a similar case, arising under the reference jurisdiction, the Madras High Court in CIT vs. P.N.N. Bank Ltd. (1969) 72 ITR 497 (Mad) has held that a reference application moved by the ITO on behalf of the CIT is valid. The section specifically provided that it should be signed by the CIT himself. So the petitioner prays for quashing Exts. P2 and P4.

4. Though notice was served on the respondents, no one appeared for them. The learned senior counsel Shri Pathrose Mathai assisted the Court as amicus curiae. The learned counsel, relying on r. 34A of the ITAT Rules, submitted that the procedure for filing an appeal before the Tribunal will apply mutatis mutandis in the matter of filing a rectification application. Rule 47(1) provides that an appeal to the Tribunal shall be filed in Form No. 36. The said Form provides for the signature of the appellant, apart from the signature of the Authorised Representative. So, it is pointed out that in the light of r. 34A, the application for rectification should be signed by the AO. Any application signed by the Authorised Representative will be defective and, therefore, Ext. P1 petition was rightly dismissed.

5. Sec. 254(2) does not provide that an application is a must from the side of the assessee or the AO to exercise the power under it. It appears to be a power which inheres in all Courts and Tribunals to correct any apparent mistake in its order. Here, the said power has been expressly conferred by a statutory provision. So, if a mistake is noticed by the Tribunal, either suo motu or on application of either of the parties, it may rectify it under s. 254(2). If a genuine mistake is pointed out in a defective application by one of the parties, still the Tribunal cannot shirk its responsibility in rectifying the apparent mistake in the records. The said section does not provide that there should be an application in the prescribed manner. Therefore, the prescription contained in r. 34A made apparently in exercise of the power conferred on the Tribunal under s. 255(5) cannot curtail the sweep of the powers of the Tribunal under s. 254(2). Therefore, I feel that the exercise of power under s. 254(2) is not dependent upon the validity of the application submitted by the party concerned. If the jurisdictional pre-conditions contemplated under s. 254(2) are present, the Tribunal is bound to exercise the said power which is conferred as an enabling power. It is a power coupled with a duty to act when circumstances warranting the exercise of that power are shown to exist. So, even assuming the application filed by the Authorised Representative is defective, still, if the same discloses the matters relevant under s. 254(2), the Tribunal is bound to exercise its power under the said sub- section. It is declared so. In the result, Exts. P2 and P4 are quashed and the matter is remitted to the Tribunal for a fresh decision in the matter as to whether it should exercise its power under s. 254(2) or not, in accordance with law, without any further delay. The OP is disposed of as above.

[Citation : 289 ITR 191]

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