I.T.A. NO. 1562/LB OF 1984-85, DECIDED ON 8TH OCTOBER, 1985. Versus I.T.A. NO. 1562/LB OF 1984-85, DECIDED ON 8TH OCTOBER, 1985.
ORDER
This further appeal filed at the instance of an assessee relating to assessment year 1983‑84 is directed against an order, dated 19‑8‑1984 passed by the learned A.A.C., of Income‑tax, G------Range, G-------dismissing the assessee's appeal in limine on account of latches.
2. The 'acts in brief are that the first Appellate Authority dismissed the assessee's appeal as being time‑barred holding the same to have been filed on 13‑2‑1984 as against service of demand notice made on 8‑1‑1984. The assessee explained that the demand notice was served on its counsel 'on 24‑1‑1984 who had no' authority under law to accept service of ‑ the same. It was also stated that date of receipt of the demand notice was interpolated just to make the appeal out of time. These submissions did not find favour with the first Appellate Authority who dismissed the appeal as barred by time.
3 The assessee's learned A.R., contended that under section 85 of the I.T. Ordinance, 1979 (hereinafter called the Ordinance) demand notice is to be served upon ' an assessee' or any other arson liable to an such tax on behalf of the assessee. It was further submitted that the learned counsel appearing before the I.T.O., in connection with the assessment proceedings was not legally empowered to receive the demand notice as provided under section 85 of the Ordinance because he was neither 'an assessee' nor 'a person liable to such tax on behalf of the assessee'. When confronted with this situation, the learned Departmental Representative after perusal of assessment record stated that the power‑of‑attorney given by the assessee to its counsel for appearance before the I. T .O., contained provision for acceptance of 'any notice' on behalf of the assessee and demand notice also being e notice, its service on the assessee's counsel was a valid service in the eye of law.
4. Having given careful consideration to the controversy involved, I find that there is force in the contentions of the learned Authorised Representative of the assessee. It has been correctly pointed out that an Advocate/A.R., appearing before the I.T.O., in the assessment) proceedings is not entitled to receive a demand notice and any service of demand notice made on an Advocate/A.R., cannot be termed to be a valid and proper service. When section 85 of the Ordinance specifically lays down that demand notice is to be served on an 'assessee' or 'any other person liable to any such tax', an Advocate/A.R., will not come within the ambit of that provision because of the simple reason that the Advocate/A.R., is neither 'an assessee' nor 'a person liable to make payment of tax'. Position in the case of an Advocate/A.R., is rather the reverse; as the assessee pays him for the services rendered for appearance before the I.T.O. in the assessment proceedings. When law does not provide for service of demand notice on a person other than as specified in section 85 of the Ordinance; even by a power‑of‑attorney, the assessee cannot authorise his Advocate/A.R., to accept service of demand notice. In the presence of a specific provision for service of demand notice, no other mode of service will be valid in law. Plea of the learned D.R. that demand notice being a notice and acceptance of service of any notice by the assessee's Advocate having been provided in the power‑of‑attorney, the service be deemed to be valid is against established principles of law. When a specific provision exists in a statute, its scope cannot be enlarged or extended by intendment. Legislature had intentionally provided for service of demand notice on an 'assessee' or 'a person liable to such 'tax' just to make recovery of tax from a proper person. Thus, acceptance of service of en ordinary notice by an Advocate/A.R., as pet terms and conditions of power‑of‑attorney cannot be equated with service of demand notice. In these circumstances, alleged service of demand notice on the assessee's Advocate being no service in the eye of law, the learned A.A.C. erred in dismissing the appeal on the issue of latches. Legally no demand notice having been served as provided under section 85 of the Ordinance, no delay can be attributed to the assessee in filing the appeal before the First Appellate Authority on 13‑2‑1984. The appeal filed before the learned A.A.C., is thus, held to be in time.
5. As a result, I vacate the impugned order and remit the assessee's appeal to the learned A.A. C., for decision on merits.
M. Y. H. Case remanded.