Serving Order On Chartered Accountant Doesn’t Count As Service On Assessee: Bombay High Court

The issue before the bench was whether the copy of the order passed by the Tribunal when served upon the Chartered Accountant is sufficient service and whether it can be construed as ‘copy received by the assesse/applicant’.

Justices Bharati Dangre and Nivedita P. Mehta stated that the Chartered Accountant since is not also authorised specifically to accept copy of the order, cannot be said to be a recognised agent of the Assessee.

In this case, the applicant/assessee has filed an application for condonation of delay of 40 days in filing the appeals.

The applicant/assessee along with her husband, were assessed to tax for the Assessment Year 2009-2010 and they having filed the Appeals before the Commissioner of Income Tax (Appeals), their appeals came to be allowed.

The Income Tax Appellate Tribunal heard the Appeals of the Revenue, where the Assessees were represented by Sandeep Bhandare, a Chartered Accountant.

The department submitted that the authorised representative of the applicant, Sandeep P. Bhandare, Chartered Accountant has received the copy of the order and therefore the Applicants cannot claim that they were unaware of the order passed.

After looking into Rule 35 of the Income-tax (Appellate Tribunal) Rules, 1963 the bench observed that upon the order being passed under Section 254 by the Appellate Tribunal, it shall send a copy of the order to the assessee and even the Rules make it imperative for the Tribunal, after the order is signed to cause it to be communicated to the assessee and to the Commissioner.

The bench further opined that “the parlance of Order 5 Rule 12 of CPC cannot be made applicable in the present case as Rule 12 contemplate an agent empowered to accept service and a Chartered Accountant definitely do not act as an agent of the assessee but he represent the assessee in the proceedings before the Income Tax Officer/Appellate Authority and there is no specific authorisation to a Chartered Accountant as it may be in case of a lawyer, who, by taking Vakalatnama, has agreed to accept documents on behalf of his client.”

The bench opined that service upon the Chartered Accountant do not absolve the Tribunal of serving the copies of the order upon the assessee, who has adopted a specific stand that it is only upon receipt of the recovery notice the applicant gained knowledge about the impugned order and thereafter preferred an application for certified copy of the order which was received on 17.05.2024 and the appeal was preferred with a delay of 40 days.

In view of the above, the bench allowed the application.

Case Title: Mrs. Neelam Ajit Phatarpekar v. The Assistant Commissioner of Income Tax

Case Number: MISCELLANEOUS CIVIL APPLICATION NO.491 AND 492 OF 2024

Counsel for Applicant/Assessee: Dharan Gandhi with Gaurang panandiker