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Mackinnon Mackenzie and Co. Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1983)LC1218DTri(Delhi)
AppellantMackinnon Mackenzie and Co. Ltd.
RespondentCollector of Customs
Excerpt:
.....a.no. 19/83 under section 129-a of the customs act, 1962. the appellant has submitted that the appeal filed was dismissed vide order dated 26-4-1983 by mistake. the appeal on behalf of the appellant company was filed by shri deva priya mitra, manager, personnel and administration. the said appeal was verified and signed by him and was filed on the 4th day of january, 1983. shri nadkarni, on behalf of the appellant has submitted before us that the appeal was dismissed through mistake. he has submitted that the grounds of appeal and memorandum of appeal was filed by an officer of the company of the status of a manager, deva priya mitra, holding the power of attorney issued by the company under clause (25) of the article 144 of the articles of association, to, inter alia file an appeal.....
Judgment:
1. This is a Misc. Petition filed by Mackinnon Mackenzie & Co. Ltd., Bombay arising oat of an appeal CD (Bom) A.No. 19/83 under Section 129-A of the Customs Act, 1962. The appellant has submitted that the appeal filed was dismissed vide Order dated 26-4-1983 by mistake. The appeal on behalf of the appellant company was filed by Shri Deva Priya Mitra, Manager, Personnel and Administration. The said appeal was verified and signed by him and was filed on the 4th day of January, 1983. Shri Nadkarni, on behalf of the appellant has submitted before us that the appeal was dismissed through mistake. He has submitted that the grounds of appeal and memorandum of appeal was filed by an officer of the Company of the status of a Manager, Deva Priya Mitra, holding the Power of Attorney issued by the Company under Clause (25) of the Article 144 of the Articles of Association, to, inter alia file an appeal relating to Customs. He has further submitted that the statement of the grounds of appeal and the forms of verification were signed by him by virtue of the authority under the Power of Attorney. He has filed two copies of the power of attorney. He further submitted that 'Principal Officer' has not been defined under the Companies Act.

However, 'Officer' has been defined in Sub-Section (30) of Section 2 of the Companies Act. According to this definition, an officer includes, inter alia, a Manager of the Company. He therefore submitted that it is a fit case where the Court should exercise its discretion under Section 129-B(2) of the Customs Act and the application for rectification of mistake is within the limitation of four years. He has further submitted that the amendment of the Order will not have the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party. The appellant has further submitted that a photocopy of the power of attorney was also duly attached with the rectification application filed before this Court. He further submitted that the appellant shall suffer irreparable loss if the mistake is not rectified.

2. The Learned Departmental Representative on the other hand had objected to the rectification proceedings. He has submitted that it is not a mistake.

3. We have gone through the facts of the case. We find that Shri D.P.Mitra, Manager, Personnel and Administration was having a Power of Attorney dated 11th November, 1982 duly on non-judicial stamp paper duly attested by Notary. Sub-Section (35) of Section 2 of the Income-Tax Act, 1961 defines 'Principal Officer' as under : 'Principal Officer' used with reference to a local authority or a company or any other public body or any association of persons or any body of individuals means; (a) the secretary, treasurer, manager or agent of the authority, company, association or body, or (b) any person connected with the management or administration of the local authority, company, association or body upon whom the Income-Tax Officer has served a notice of his intention of treating him as the Principal officer thereof".

4. In the Kanga and Palkhivala's The Law and Practice of Income-Tax, 7th edition, Volume 1, pags 69, 'Principal Officer' has been defined as, Principal Officer, in reference to a local authority or other public body, a company of a body or association of persons, means its secretary, treasurer, manager or agent. Even in the Code of Civil Procedure, it has been provided that Power of Attorney can also sign a Plaint or written statement on behalf of the Company and Order XXIX Rule 1 of Code of Civil Procedure, 1908 is reproduced as under :- "(S. 435). In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case".

5. It was held in the case of Singer Manufacturing Company v. Yar Muhammad (1912) Punjab Rec. No. 8, page 33, 10 L.C. 141, and it was also held in the case of Delhi and London Bank v. Oldham, (1894) 21-Cal. 60. 20 LA. 139 that power of attorney can always sign on behalf of the company. Briefly, the facts are that the Manager at Lucknow of the local branch of the Delhi and London Bank was authorised by a power of attorney to manage the affairs of the Bank, and to substitute any person for himself. In pursuance of this power he gave a power of attorney to the accountant of the Bank to manage the affairs of the Bank but the power omitted words giving authority to sue. It was held that the accountant was under the circumstances the principal officer of the bank and that he could as such sign and verify the plaint in a suit filed by the Bank.

6. The fact that the signatory of the appeal was holding a power of attorney duly constituted before a Notary Public was not brought to the notice of the Court and this was a material fact which was overlooked by the Court and has an important bearing on the ultimate decision or right of the appellant. Such a mistake can be rectified and original decision can be altered in view of the Judgment ITO v. Income Tax Tribunal-58 ITR 634. Reference of the same has been taken from Law and Practice of Income Tax by Kanga & Palkhiwala, 7th edition, Vol. I, page 928. In view of the legal position and facts of the case discussed above, we find that it is a mistake apparent from record and we hold that the appeal was properly instituted in conformity with the requirements of Law and we hereby direct reopening of the hearing of the appeal. We further direct the appellant as well as the respondent to appear in the Court on 20th July, 1983, at 11.03 A.M. for the final hearing of the appeal.


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