1984 PLP (Trib (PTD)

Laws Cited

Representation

• M. Saeed Rana for Appellant.
• Imtiaz Anjum A. C., D. R. for Respondent.
• Date of hearing : 15th November, 1983.
• --S. 132 (4)-Income-tax Act (XI of 1922), S. 31 (8)-Commencement of period for appeal before Income-tax Appellate Tribunal-Order passed by Appellate Assistant Commissioner in appeal served on Advocate of assessee-Validity-Held : Provisions as contained in S. 132 (4) of Ordinance 1979 and S. 31 of Act 1922 about service of such order on assessee mandatory in nature-Service of order on assessee's Advocate, held, could not be deemed to be legal-Limitation period for purpose of appeal before Appellate Tribunal started from date of service on assessee.
• ---- S. 157--"Power of attorney" executed in favour of Advocate by. Assessee empowering Advocate to get execution of order or decree on behalf of assessee-Such power, held, related to civil proceedings and had no relevancy to income-tax proceedings-After completion of arguments power of attorney given by assessee to his Advocate, held further, stood automatically terminated-Appellate Assistant Commissioner was, therefore, required to dispatch appellate order to assessee directly on his given address.
• 2. The office has raised a preliminary objection of latches. The assessee's appeal was heard by the learned A. A. C. on 24-1-1983 and order was passed therein on 19-2-1983. As per appellate record the impugned order was served on the assessee's Advocate through a process server on 12-3-1983. As against that this appeal filed on 23-5-1983 is reported to be time-barred by 12 days.
• 3. The assessee was intimated the lacuna of latches rids letter dated, 12-9-1983 and in reply there to an application for condonation of delay along with an affidavit has been filed. The appellant's plea is that in column No. 1 of memo. of first appeal, assessee's own address was given and in column No. 10 address of Advocate of the assessee was furnished. The assessee's case is that the appellate order bad to be served on the permanent address as given in column No. 1 of the memo of first appeal. Address of the counsel was given in column No. 10 just for intimation of date of hearing of appeal. It was contended that Advocate was engaged for filing and arguing the appeal before the learned A. A. C. and after conclusion of hearing of appeal on 24-1-1983, power-of-attorney given by the assess" stood terminated. It has been stated that service of the impugned order effected by the process server of the learned A. A. C. on the appellant's 'defunct Advocate on 12-3-1983 was neither valid nor legal. It was further argued that the appellant's counsel after receipt of the appellate order fell sick and on his recovery he sent the same by registered post. The order having reached the assessee on 8-5-1983, it was contended that limitation shall start from the date of actual receipt of the order. In the affidavit the assessee has also deposed that for income-tax proceedings, he has been engaging his Advocate by authorising him through a separate and in dependent power-of-attorney at each stage. The D.R.'s case was that as per contents of power-of attorney the assessee's Advocate was empowered to get execution of an order or decree on behalf of the assessee and as such service of the appellate order made on the Advocate shall be deemed to be proper service on the assessee.
• 5. After giving careful consideration to the legal provisions regarding the issue involved hold that on conclusion of hearing order of the learned A. A. C. has to be served on the assessee. Use of the word "shall " in section 130 of the Income-tax Ordinance, 1979, has made the provision to be R mandatory. Similar was the provision in the Repealed Income-tax Act, 1922. Provision of service of the appellate order on the assessee being mandatory, service of the same on the assessee's defunct Advocate or Authorized Representative cannot be deemed to be a valid and legal compliance.
• The DR's plea regarding contents of "Power-of-Attorney" authorising the assessee's Advocate to receive the appellate order is devoid of any force. If the assessee specifically authorise, his Advocate in this behalf or gives hi permanent address as to be through his Advocate only then the appellate order can be served on the Advocate. On going through the contents of Power-of -Attorney given by the assessee to his Advocate, I find that narration and word ing used therein is regarding civil proceedings. Reference about empowering C the Advocate for execution of any order or decree is exclusively for civil cases. Forms and contents of power-of-attorney in civil and criminal proceedings are different. Contents of power-of-attorney in civil cases has no relevancy t the Income-tax proceedings. Form of power-of-attorney used by the assessee does not contain any reference of appearance by the Advocate Mo--c the 1. T. O., A. A. C., C. I. T. (A) or income-tax Appellate Tribunal. Wording used therein regarding empowering the Advocate for execution of any order or decree is relevant to civil proceedings only and has no bearing on the Income tax proceedings. By virtue of contents of power of attorney given by the assessee his Advocate was competent to file and argue the appeal. After completion of arguments the power-of-attorney given by the assessee to his Advocate stood automatically terminated and thereafter the learned A. A. C. was required to despatch the appellate order to the assessee directly on the given address.
• As a result of the above discussion, I bold that service of the appellate order made on the assessee's Advocate was not legal and valid. It was no service in the eye of law. The impugned order shall be deemed to have been served on the assessee on the date on which it was received by him from his -Advocate. In the instant case, the assessee having received the appellate order on 8-5-1983 as against that appeal filed on 23-5-1983 is in time. Preliminary objection of latches stands overruled.

Headnotes / Summary

Judgment & Decree