1966 (10) TMI 141 - HC - VAT and Sales Tax

Court rules authorizations must include appearance right, reject restriction to attendance only. Form 43-A for terms.

LM Mahurkar and Another Versus Sales Tax Officer, Circle II, Nagpur and Others

LM Mahurkar and Another Versus Sales Tax Officer, Circle II, Nagpur and Others - [1967] 20 STC 199 (Bom) Issues Involved:1. Legality of the requirement for authorisation to be in a prescribed form.2. Proper fee to be paid on the authorisation document.Issue-Wise Detailed Analysis:1. Legality of the Requirement for Authorisation to be in a Prescribed Form:The court examined whether the Sales Tax Authorities could insist that authorisation entitling practitioners to attend must be in the prescribed form and include all conditions and terms specified therein. Section 71 of the Bombay Sales Tax Act, 1959, and rules 66 and 66-A of the Bombay Sales Tax Rules, 1959, were central to this issue. Section 71(1) states that any person entitled or required to attend before any authority may do so if authorised in the prescribed form, which is Form 43-A.The court noted that the statutory requirement for authorisation in the prescribed form was incorporated in 1965. It was argued that an Advocate's right to practice under the Advocates Act, 1961, should not be controlled by the Sales Tax Act. The court referred to the Supreme Court decision in Aswini Kumar Ghosh and Another v. Arabinda Bose and Another, establishing that an Advocate's right to practice includes the right to appear, plead, and act on behalf of a client.The court concluded that authorisation under section 71 must include a right to appear and plead, not just to attend. The form prescribed (Form 43-A) should be interpreted to allow for the inclusion of terms agreed upon between the assessee and the authorised person. The court rejected the argument that no other terms could be included in the authorisation document, stating that such a restriction would unjustifiably limit the agreement between the parties.2. Proper Fee to be Paid on the Authorisation Document:The second issue was whether the authorisation document should bear a court-fee stamp of Rs. 2 as per the Bombay Court-fees Act or a general non-judicial stamp of Rs. 3.30 as per the Bombay Stamp Act. The court examined item 12 of Schedule II of the Bombay Court-fees Act, which prescribes a court-fee of Rs. 2 for a mukhtyarnama or vakalatnama.The court considered whether the Sales Tax Authorities could be equated to a Revenue Court or an executive officer under the Court-fees Act. It referred to previous decisions, including the Supreme Court's ruling in Jagannath Prasad v. State of Uttar Pradesh, which held that a Sales Tax Officer is not a court within the meaning of section 195 of the Code of Criminal Procedure, but an executive officer.The court concluded that Sales Tax Officers and other authorities under the Sales Tax Act are executive officers. Therefore, a vakalatnama or mukhtyarnama filed before them should bear a court-fee stamp of Rs. 2 as per item 12 of Schedule II of the Bombay Court-fees Act, not a non-judicial stamp of Rs. 3.30 under the Bombay Stamp Act.Conclusion:The petitions were allowed, and it was held that:1. Authorisation in the prescribed form (Form 43-A) must include the right to appear and plead, and additional terms agreed upon between the assessee and the authorised person can be included.2. The authorisation document should bear a court-fee stamp of Rs. 2 as provided in item 12 of Schedule II of the Bombay Court-fees Act, not a non-judicial stamp of Rs. 3.30 under the Bombay Stamp Act.The petitioners were entitled to costs against the respondents.