JUDGMENT : 1. By way of this appeal, the assessee has challenged the judgment & order of the Tribunal whereby the Tribunal has allowed the appeal preferred by the revenue and set aside the order of the CIT(A) which has allowed the appeal preferred by the original assessee (Tahal Consulting Engineers Ltd.) an assessing firm which was assessed by the department pursuant to the contract entered between the department and the Tahal Consulting Engineers Ltd. 2. Brief facts of the case are that the assessee is a company registered in Israel, through two separate contracts the State Government of Rajasthan and Gujarat awarded the contracts in the field of water resources planning in their respective states. The entire liability of Indian Income-tax was under taken to be borne and paid by the respective departments of the State Government. At the time of entering into the contracts, double taxation avoidance treaty between Government of India and Israel did not exist. Both the State Governments, deposited income-tax on the technical services fees paid to the assessee who is a foreign company. The assessee furnished its return of income offering the tax at concessional rate of 10% prescribed under the double taxation avoidance agreement which came into force on 15/5/1996. The assessee appended notes to the statement of total income of Indian operations of the assessee which was filed with the return of income showing Income from other sources for the period ended 31/3/1997. 3. While admitting the matter this Court has framed the following issues :- "(i). Whether the ITAT was justified in law in having refused to rectify its earlier order dated 31/7/2002 in the peculiar facts and circumstances of the case? (ii) Whether the ITAT was justified in law in having taken the view that the humble appellant, acting as authorised signatory of M/s. TCE or as an authorised representative, did not have the requisite locus standi to move and maintain an application under section 254(2) of the I.T. Act in respect of the errors apparent on the face of its order dated 31/7/2002. (iii) Whether the ITAT was justified in not having removed the typographical and clerical errors as also its uncalled for direction to the Revenue to carry out proceedings in the name of TCE apparent on the face of the order dated 31/7/2002? 4. (iii) Whether the ITAT was justified in not having removed the typographical and clerical errors as also its uncalled for direction to the Revenue to carry out proceedings in the name of TCE apparent on the face of the order dated 31/7/2002? 4. The writ petition was also preferred by the assessee who has entered into contract with this Tahal Consulting Engineers Ltd. and the tax liability was on the State Government therefore, State Government has also challenged the order of the Tribunal, rejecting the rectification application under Section 254(2) of the Income Tax, 1961. Since common issues are involved therefore, while delivering the common judgment, the questions which have been posed for our consideration have been stated above. 5. Counsel for the appellant Mr. A. Kasliwal has taken us to the provision of Section 254 (2) and contended that in view of the provision of 254, the Tribunal ought to have corrected the mistake which was apparent of the face on record and ought to have referred the question in favour of the appellant/petitioner and has also taken us to the provision under Section 260A and provision of Section 2(7) where the assessee is defined and he has contended that in view of sub-clause 1, the assessee includes persons like petitioner/appellant who is likely to be affected pursuant to the order passed by the authority. He contended that if provision of Section 160(i) 163 & 166 of the Income Tax Act are taken into consideration, the petitioner/appellant should be regarded as agent of the Tahal Consulting Engineers Ltd. Therefore, he contended that the tax liability was on the assessee namely present appellant, State Government and therefore the writ petition or the appeal either of them is to be allowed by this Court. 6. Counsel for the respondent Mr. Singhi has taken us to the order of the Tribunal and contended that the order of the AO is accepted by the present petitioner/appellant and Tahal Consulting Engineers Ltd. has not preferred any appeal. The present appellant/petitioner has accepted the order of AO. In that view of the matter in view of the principle of acquiescence and waiver the matter is finally concluded and he cannot be allowed to reopen it and the Tribunal has found that the original assessee Tahal Consulting Engineers Ltd. is entitled for the relief. The present appellant/petitioner has accepted the order of AO. In that view of the matter in view of the principle of acquiescence and waiver the matter is finally concluded and he cannot be allowed to reopen it and the Tribunal has found that the original assessee Tahal Consulting Engineers Ltd. is entitled for the relief. This is a case where rule of inconvenience is referred, therefore, present appeal and writ petition have been preferred. He has also taken us to the provision of Section 161 and contended that rival contentions which are raised in reply to the writ petition reads as under :- "1. That the contents of para 1 of the preliminary objection are admitted to the extent that a misc. application was filed by the petitioner before the learned ITAT claiming itself to be representative assessee of M/s Tahal Consultancy Engineers Limited (herein after for the sake of brevity referred as TCL) and for rectification of the order dated 31/7/2002 and the same was dismissed by the learned ITAT vide its Order dated 19/5/2003. The ITAT has disputed not only the veracity and propriety of the petitioner's claim for rectification of its earlier order dated 31/7/2002 but has also disputed the humble petitioner's locus standi to move an application under section 254(2) before it. 1.1. It respectfully submitted that under the Income Tax Act, 1961 the term 'Assessee' has been defined vide section 2(7) of the Income Tax Act as under :- (a) every person in respect of whom any proceedings under this Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person; (b) every person who is deemed to be an assessee under any provision of this Act. It is respectfully submitted that clause (b) of Section 2(7) has recognize a deemed assessee to be an assessee which includes a representative assessee. It is respectfully submitted that clause (b) of Section 2(7) has recognize a deemed assessee to be an assessee which includes a representative assessee. 1.2 Further it is respectfully submitted that Section 160 of the Income Tax Act 1961 has defined the expression 'Representative Assessee' which is reproduced herein below for ready reference of this Hon'ble Court :- Sec.160 - Representative Assessee - (1) For the purpose of this Act, "representative assessee" means- (i) in respect of the income of a non resident specified in sub-section (1) of section 9, the agent of the non resident, including a person who is treated as an agent under Section 163; It is respectfully submitted that to bring more clarity the Legislature has defined the expression 'Agent' used in the definition of the term representative assessee vide section 163 of the Income Tax Act and the same read as under :- Sec. 163 who may be regarded as agent- 1. For the purposes of this Act, 'agent', in relation to a non resident includes any person in India) who is employed by or on behalf of the non resident; or (b) who has any business connection with the non resident; or (c) from or through whom the non resident is in receipt of any income, whether directly or indirectly: or (d) who is the trustee of the non resident: and includes also any other person who, whether a resident or non resident, has acquired by means of a transfer, a capital asset in India. A bare perusal of the aforesaid sections clearly provides that every Representative Assessee must be deemed to be an Assessee for all the purpose of Income Tax. 1.3. It is further submitted that the Department had vide Circular No. 707 dated 11/7/95, recognised that employer, employing a Non resident can claim the refund. The text of the said circular is reproduced hereunder for ready reference :- "Under provisions of this section, any person from or through whom the non resident is in receipt of any income whether directly or indirectly can be regarded as an agent in relation to the non resident. Accordingly, the company itself employing a non resident who has left India without claiming refund of taxes borne by the employer can file the return and can be assessed in its own name in respect of that income under section 161(1) and claim the refund". 1.4. Accordingly, the company itself employing a non resident who has left India without claiming refund of taxes borne by the employer can file the return and can be assessed in its own name in respect of that income under section 161(1) and claim the refund". 1.4. It is further stated that an appeal has already been filed by the humble petitioner under section 260-A of Income Tax Act, 1961 against the impugned order of ITAT dated 19/5/2003 and the same has been registered before this as D.B. Income Tax Appeal No. of 2003. 1.5. Further, the contents of para 1 of preliminary objection denied to the extent that TCE had written a letter dated 15/11/97 filed on 17/11/97 with ACIT, Co. Circle Jaipur about they being represented by Chief Engineer, Canal Div. I, ID&R, Irrigation Department, Jaipur and copy of which was also received by IDR. The said communication explicitly confirming and conveying the status of ID&R viz-a-viz TCE and the Income Tax Deptt. 2. That the contents of para 2 of the preliminary objections are denied as being incorrect. It is respectfully submitted that there is no question of arraying TCE as a party on the ground that TCE has appointed Investigation, Design and Research (ID&R) Division of Irrigation Department of Government of Rajasthan, as its Representative to take care of all its taxable liabilities in its letter dated 29/7/1997 and place on record as Annexure-8. It is respectfully submitted that TCE has rightly not been arrayed as a party as no relief is sought against TCE. Even otherwise these proceedings relate to quantification of tax liability as to which TCE can have no say. 3. That in respect of the contents of para 3 of the preliminary objections it is respectfully submitted that the order of dated 4/10/2002 (served upon CA of the assessee on 28/5/2003 viz. after seven months and 24 days) was merely consequential and had only raised and quantified the demand only and as such was not impugned in the writ petition. Further, ID&R also writing to Income Tax Department on -8.99 for issue of notices to them in the case." 7. after seven months and 24 days) was merely consequential and had only raised and quantified the demand only and as such was not impugned in the writ petition. Further, ID&R also writing to Income Tax Department on -8.99 for issue of notices to them in the case." 7. He further contended that the view taken by the Tribunal is just and proper and the appeal is not preferred by the original assessee and assuming without admitting even after the petitioner is concealing it to be that the assessee has contended under Section 27, he has not preferred the appeal. He cannot substitute himself for original appellant/petitioner and there cannot be two assessee for the same assessment year. In that view of the matter, the writ and the appeal both deserve to be dismissed. 8. Mr. Kasliwal contended that if such a contention is accepted by the department, it will be unjust and they will be entitled for the collection of tax which they are otherwise not entitled. 9. We have heard learned counsel for the parties. 10. Before proceedings with the matter, it will not be out of place to mention what is the locus of the present appellant/petitioner. The present appellant/petitioner is entitled to enter into contract with a foreign firm Tahal Consulting Engineers Ltd. and assessment of earlier year was made in name of the Tahal Consulting Engineers Ltd. and proceedings were initiated by Tahal Consulting Engineers Ltd. and it was concluded in the name of Tahal Consulting Engineers Ltd. Now to say after three years that he wants to substitute for the Tahal Consulting Engineers Ltd. under the Income Tax Act is not permissible inasmuch as precedent of previous year is required to be accepted. Therefore, on the first principle of the Income Tax Act, the department is bound by the earlier precedent year and same thing will apply on the assessee namely Tahal Consulting Engineers Ltd. The present appellant/petitioner was never a party to the earlier proceedings therefore, this principle will apply in the case of the appellant but at least Tahal Consulting Engineers Ltd. ought to have preferred the appeal and not the present appellant. 11. 11. Therefore in view of the well settled principle, the appeal filed by the present appellant is on doubted preposition of law and the second principle of the Income Tax Act, the petitioner/appellant as contended by him if he is assessee should have preferred an appeal since he was entitled for refund amount which was their claim under the Income Tax Act. Now, having succeeded before the CIT(A) and after the observations made by the Tribunal that Tahal Consulting Engineers Ltd. is not entitled for refund to come in the proceedings at a belated stage are never contemplated by any law therefore, impugned proceedings at a very belated stage is not known to any proceedings. 12. In that view of the matter, the writ or appeal by assessee should not be accepted and we are of the opinion that it will not be healthy practise inasmuch as otherwise other side will take advantage and will add any assessee at any stage treating this precedent having liability to the assessee under the judgment which has been cited in favour of the assessee. 13. In that view of the matter, for the well settled principle of law, the law has to be assumed for both the sides while refunding or referring the taxing statute. In that view of the matter, if the imposition of tax is not referred in the taxing statute, it should not apply even in the case of refund. In that view of the matter, for the consistency of law, we are of the opinion that the parties should be continuously joined all throughout proceedings. 14. All the issues are answered in favour of the department against the assessee. 15. In that view of the matter, the appeal and the writ petition are misconceived and deserve to be dismissed. 16. The same are dismissed.