S.S.K. Trading Company, Rep. by Its Prop. S. Sampath Kumar Vs. the Commercial Tax Officer - Court Judgment

Excerpt:
civil - power of advocate - advocates act, 1961 - respondent had sent communication to petitioner wherein it was written that petitioner's advocate was authorized only to appear and not to send any correspondences / petition on its behalf - hence, present petition to challenge same - held, an advocate enrolled under advocates act is entitled to send reply or notice or appear on behalf of his client - even otherwise, an advocate can be authorised to do certain acts on behalf of his client, unless statute specifically prohibits - in absence of any prohibition under the tamil nadu general sales tax act, or the rules made thereunder, it was open to dealer to make his representation through his attorney by properly authorising said attorney - accordingly, communication, to extent it prohibits petitioner's advocate from appearing on his behalf, was held illegal - petition disposed of - t.n. estates (abolition & conversion into ryotwari) act, 1948 [act no. 26/1948]. sections 5(2) & 67; [a.p. shah, cj, mrs. prabha sridevan & p. jyothimani, jj] suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. -- t.n. estates (abolition & conversion into ryotwari) act, 1948. sections 5(2) & 67; suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. orderk. chandru, j.1. with the consent of both the parties, the writ petition itself is taken up for final disposal.2. the prayer in the writ petition is to issue a writ of certiorarified mandamus calling for the records relating to the communication of the respondent, dated 10.10.2005 made in tngst asst. no. 2921997/2002-2003 and quash the same and forbear the respondent from preventing the petitioner from sending communication / petition through advocates for statutory notices. 3. the petitioner in the present writ petition challenges the impugned communication of the commercial tax officer, perundurai dated 10.10.2005 informing the petitioner about certain things as found noted in paras 3, 4 and 5 of the impugned order, which are extracted as follows:3. further, you are informed that the legal practitioner who are authorized as provided for under section 52 of the tngst act 59 read with rule 49 and 51 are only for the purpose of appearance before the authority and not for making correspondences on behalf of the dealers.4. the letter signed by your advocate is therefore not a procedural one prescribed under the provisions of the tngst act 59. so also any authorization as provided for under section 52 read with the rule 49 should be in the form xiii as prescribed.5. please ask your advocates not to make such correspondences directly to the assessing officer in future. it is enough them to appear before the assessing officer with prescribed authorization.4. the petitioner is only aggrieved against the above portion of the letter of the commercial tax officer, perundurai, who is shown as the respondent herein. in fact, the provisions referred to by the respondent have no relevance to the context in which they have been referred to by the respondent. section 52 of the tamil nadu general sales tax act, 1959, reads as follows:52. appearance before any authority in proceedings.- any person who is entitled to appear before any authority other than the special tribunal in connection with any proceedings under this act may, subject to such conditions as may be prescribed, be represented before such authority -(a) by his relative or a person employed full time by him, if such relative or person is duly authorized by him in writing in this behalf; or(b) by a legal practitioner; or (c) by an accountant or sales tax practitioner possessing the prescribed qualifications and duly authorised by him in writing in this behalf.rules 49 and 51 of the tamil nadu general sales tax rules, 1959, read as follows:rule 49. the person specified in clauses (a) to (c) of section 52 of the act appearing on behalf of a dealer or other person in any proceedings before any sales tax authority other than special appellate tribunal shall file before such authority an authorization given by the dealer or such person in form xiii. rule 51: authorisation of representative and appointment of legal practitioner.- an authorisation given by any person under rule 49 or an appointment of a legal practitioner by such person to represent him in any proceedings before any sales tax authority, other than the special appellate tribunal shall be valid only for the purpose of appearance before such authority or until it is cancelled in writing by the person who gave the authorisation or made the appointment of the legal practitioner:provided that when the said person desires to cancel the appointment of the legal practitioner or the authorisation of the chartered accountant or the sales tax practitioner in the course of the proceedings before any such sales tax authority, he may do so with the consent of the legal practitioner, chartered accountant or the sales tax practitioner already on record or when such consent is refused, with the permission of the sales tax authority. 5. the above rules are only relating to the appearance of the legal practitioner on being instructed by his/her client by sending appropriate reply or notice. an advocate enrolled under the advocates act, 1962 is entitled to perform such an act. even otherwise, as an attorney he can be authorised to do certain acts on behalf of his client, unless the statute specifically prohibits such a conduct on the part of an advocate. section 52 of the tngst act, in fact, provides for, in a wider context, where a relative or a full time employee or an accountant of the dealer can even be authorised to represent his case before the taxing officers. it is not as if only the advocates are given monopoly to appear. when the intention of the act is too wide, it is not proper on the part of the respondent to write a reply informing the dealer that he or she cannot send the proceedings through his/her lawyer and more so, the contents of para 5 of the impugned notice is totally unwarranted. in the absence of any prohibition under the tngst act, or the rules made thereunder, it is open to the dealer to make his representation through his attorney by properly authorising the said attorney.6. in the circumstances, paragraphs 3, 4 and 5 of the impugned order are clearly illegal and are liable to be set aside and accordingly, they are set aside. the writ petition is disposed of to the extent indicated above. consequently, the connected miscellaneous petition is closed. no costs.

Judgment:
ORDER

K. Chandru, J.

1. With the consent of both the parties, the writ petition itself is taken up for final disposal.

2. The prayer in the writ petition is to issue a writ of certiorarified mandamus calling for the records relating to the communication of the respondent, dated 10.10.2005 made in TNGST ASST. No. 2921997/2002-2003 and quash the same and forbear the respondent from preventing the petitioner from sending communication / petition through advocates for statutory notices.

3. The petitioner in the present writ petition challenges the impugned communication of the Commercial Tax Officer, Perundurai dated 10.10.2005 informing the petitioner about certain things as found noted in paras 3, 4 and 5 of the impugned order, which are extracted as follows:

3. Further, you are informed that the legal practitioner who are authorized as provided for under Section 52 of the TNGST ACT 59 read with Rule 49 and 51 are only for the purpose of appearance before the authority and not for making correspondences on behalf of the dealers.

4. The letter signed by your advocate is therefore not a procedural one prescribed under the provisions of the TNGST ACT 59. So also any authorization as provided for under Section 52 read with the Rule 49 should be in the form XIII as prescribed.

5. Please ask your advocates not to make such correspondences directly to the Assessing Officer in future. It is enough them to appear before the Assessing Officer with prescribed authorization.

4. The petitioner is only aggrieved against the above portion of the letter of the Commercial Tax Officer, Perundurai, who is shown as the respondent herein. In fact, the provisions referred to by the respondent have no relevance to the context in which they have been referred to by the respondent. Section 52 of the Tamil Nadu General Sales Tax Act, 1959, reads as follows:

52. Appearance before any authority in proceedings.- Any person who is entitled to appear before any authority other than the Special Tribunal in connection with any proceedings under this Act may, subject to such conditions as may be prescribed, be represented before such authority -

(a) by his relative or a person employed full time by him, if such relative or person is duly authorized by him in writing in this behalf; or

(b) by a legal practitioner; or

(c) by an accountant or sales tax practitioner possessing the prescribed qualifications and duly authorised by him in writing in this behalf.

Rules 49 and 51 of the Tamil Nadu General Sales Tax Rules, 1959, read as follows:

Rule 49. The person specified in Clauses (a) to (c) of Section 52 of the Act appearing on behalf of a dealer or other person in any proceedings before any sales tax authority other than Special Appellate Tribunal shall file before such authority an authorization given by the dealer or such person in Form XIII.

Rule 51: Authorisation of representative and appointment of legal practitioner.- An authorisation given by any person under Rule 49 or an appointment of a legal practitioner by such person to represent him in any proceedings before any Sales Tax authority, other than the Special Appellate Tribunal shall be valid only for the purpose of appearance before such authority or until it is cancelled in writing by the person who gave the authorisation or made the appointment of the legal practitioner:Provided that when the said person desires to cancel the appointment of the legal practitioner or the authorisation of the Chartered Accountant or the Sales Tax Practitioner in the course of the proceedings before any such Sales Tax Authority, he may do so with the consent of the legal practitioner, Chartered Accountant or the Sales Tax Practitioner already on record or when such consent is refused, with the permission of the Sales Tax authority.

5. The above Rules are only relating to the appearance of the legal practitioner on being instructed by his/her client by sending appropriate reply or notice. An advocate enrolled under the Advocates Act, 1962 is entitled to perform such an act. Even otherwise, as an attorney he can be authorised to do certain acts on behalf of his client, unless the statute specifically prohibits such a conduct on the part of an advocate. Section 52 of the TNGST Act, in fact, provides for, in a wider context, where a relative or a full time employee or an accountant of the dealer can even be authorised to represent his case before the Taxing Officers. It is not as if only the advocates are given monopoly to appear. When the intention of the Act is too wide, it is not proper on the part of the respondent to write a reply informing the dealer that he or she cannot send the proceedings through his/her lawyer and more so, the contents of para 5 of the impugned notice is totally unwarranted. In the absence of any prohibition under the TNGST Act, or the Rules made thereunder, it is open to the dealer to make his representation through his attorney by properly authorising the said attorney.

6. In the circumstances, paragraphs 3, 4 and 5 of the impugned order are clearly illegal and are liable to be set aside and accordingly, they are set aside. The writ petition is disposed of to the extent indicated above. Consequently, the connected miscellaneous petition is closed. No costs.