An income-tax practitioner who is not disqualified under Section 61(3) of the Income-tax Act, 1922, but has not appeared before any income-tax authority as an income-tax practitioner before the Estate Duty (Amendment) Act of 1958, is not qualified to appear in estate duty proceedings under Section 83 of the Estate Duty Act, 1953, and Rule 41 of the Estate Duty Rules, 1953.

C.S.P. Singh, J.

1. THE petitioner passed his B.Com. (Commerce) from Bundelkhand University in the year 1978. Thereafter, he started practice before the I.T. authorities. It transpires that the petitioner sought to appear in an estate duty case relating to the estate of Smt. Kesharbai of Jhansi. THE Asst. Controller of E.D., Agra, by order dated 31st August, 1981, informed the petitioner that under instructions from higher authorities he would not be allowed to appear in that case. THE petitioner has filed the present petition challenging this order. In the counter-affidavit filed by the Department, the stand has been taken that the petitioner was not qualified to appear in estate duty cases, and the impugned order was passed on this consideration. Section 83 of the E.D. Act sets out the persons, who are entitled to appear before the authorities in connection with proceedings under the Act. Five categories of persons are entitled to appear: (1) a relative of the accountable person, (2) a person regularly employed by the accountable person, (3) a legal practitioner, (4) chartered accountants, and (5) any other person having such qualification as may be prescribed. It is admitted that the petitioner does not come under the first four categories. He rests his case on the fifth category, as he contends that he is an I.T. practitioner, and as such entitled to appear. We have seen that Section 83 requires us to fall back upon the Rules for finding out the other persons who can appear. It is necessary to extract this rule at this stage : "41. Qualification of certain persons to appear as authorised representatives.--Any person may, if authorised by the person accountable in writing in this behalf, represent him for the purpose of Section 83, provided-

(i) Such person is an income-tax practitioner as defined in Clause (iv) of Sub-section (2) of Section 61 of the Income-tax Act;

(ii) he has at any time before the commencement of the Estate Duty (Amendment) Act, 1958 (XXXIII of 1958), appeared before any income-tax authority in his capacity as income-tax practitioner; and

(iii) he is not disqualified to represent an assessee in any income-tax proceeding by reason of any direction made under Sub-section (3) of Section 61 of the Income-tax Act."

THE word "income-tax practitioner" talked of in Rule 41 is not defined by the Rules, and the Rules relegate us to the definition of the word as contained in Clause (iv) of Sub-section (2) of Section 61 of the Indian I.T. Act, 1922. Section 61(2)(iv) of the Indian I.T. Act, 1922, defines the word "income-tax practitioner" in the following terms :

"(a) any person who, before the 1st day of April, 1938.....attended before an income-tax authority on behalf of any assessee otherwise than in the capacity of an employee or relative of that assessee;

(b) any person who has passed any accountancy examination recognised in this behalf by the Central Board of Revenue ; or

(c) any person who has acquired such educational qualifications as the Central Board of Revenue may prescribe for this purpose."

THE petitioner does not meet the test set out in Sub-clauses (a) and (b) of Clause (iv). He has sought to bring his case under Sub-clause (c). Rule 46 of the Rules framed under the 1922 Act sets out the educational qualifications prescribed by the CBR for purposes of Sub-clause (c) of Clause (iv) of Sub-section (2) of of Section 61 of the Indian I.T. Act, 1922. One of the qualifications prescribed is a degree in commerce from an Indian University incorporated by any law for the time being in force. It was not disputed that the petitioner holds a degree in commerce from an Indian University. Thus, the petitioner is an I.T. practitioner as defined in Section 61(2)(iv) of the Indian I.T. Act, 1922. THE question, however, arises as to whether this would be sufficient for purposes of Rule 41 and Section 83 of the E.D. Act.

2. WE have already extracted Rule 41 of the E.D. Rules. It will be noticed that Sub-rules (i) and