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Global Technical Services (P.) Vs. Income-tax Officer (Nz) - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Delhi
Decided On
Judge
Reported in(1983)6ITD725(Delhi)
AppellantGlobal Technical Services (P.)
Respondentincome-tax Officer (Nz)
Excerpt:
.....high court long back in damodar prasad v. cit 3 itc 405. the hon'ble court held that where an appeal form is unsigned, the appeal can be dismissed and there is no necessity of giving a notice. it has been further found that the appeal form was not verified in the prescribed manner. it is clear that the facts of that case are totally different from the facts of the case on hand. further, the proposition laid down in that decision that no notice is necessary to be issued by the aac calling upon the assessee to rectify the defect had been too broadly stated. this case as is seen was decided as early as 19-2-1929. the law has developed so much in between specially after india became republic and adopted a written constitution, that rule of law has been given the foremost place and the.....
Judgment:
1. This is an appeal by an assessee, a Private Ltd. Company, against an order of the Commissioner (Appeals) dismissing the appeal filed by the assessee in limine.

2. The assessee filed an appeal against the order passed by the ITO under Section 221(1) of the Income-tax Act, 1961 ('the Act'). The assessee filed the form of appeal in Form No. 35 prescribed under Rule 45 of the Income-tax Rules. The form has been signed on behalf of the assessee. The form of verification has also been signed. In between there is statement of facts and grounds of appeal. A blank space is provided for signature below the grounds of appeal but that has not been signed on behalf of the assessee. In other words, it remained blank. The Commissioner (Appeals) having looked to the memo of appeal filed, noticed the absence of signature underneath the heading 'grounds of appeal'. He thought fit to reject the appeal in limine as not maintainable. In so doing he did not call upon the assessee to show cause. In fact, the Commissioner (Appeals) wrote in his order that it was not necessary to do so. This order of the Commissioner (Appeals) is challenged in appeal be fore us.

3. We are a little puzzled as to the way in which the Commissioner (Appeals) chose to dispose of the appeal in limine. Apart from the fact that presently we will show how the order of the Commissioner (Appeals) is erroneous, the Commissioner (Appeals) wrongly felt that no show-cause notice even would be necessary to be issued to the assessee before dismissing the appeal in limine. At this stage it is necessary to mention that the Commissioner (Appeals) referred to a passage occurring in Kanga and Palkhivala's Income-tax relating to Section 249 of the Act. Therein there is reference to a case decided by the Patna High Court long back in Damodar Prasad v. CIT 3 ITC 405. The Hon'ble Court held that where an appeal form is unsigned, the appeal can be dismissed and there is no necessity of giving a notice. It has been further found that the appeal form was not verified in the prescribed manner. It is clear that the facts of that case are totally different from the facts of the case on hand. Further, the proposition laid down in that decision that no notice is necessary to be issued by the AAC calling upon the assessee to rectify the defect had been too broadly stated. This case as is seen was decided as early as 19-2-1929. The law has developed so much in between specially after India became Republic and adopted a written Constitution, that rule of law has been given the foremost place and the same envisages the concept of principles of natural justice. Principles of natural justice require giving an opportunity to any person before an adverse order is passed. This principle is so well settled that it is made applicable even to administrative actions apart from the fact that they are totally applicable to the judicial and quasi-judicial proceedings. The Commissioner (Appeals), in our view, committed an elementary error in not calling upon the assessee to show cause why the appeal should not be dismissed in limine.

4. Coming to the merits on which the appeal has been dismissed by the Commissioner (Appeals), here again we find that the Commissioner (Appeals) acted rather hastily and erroneously. The form of appeal, as already been mentioned, has been signed and the verification has been signed. Only that portion where the assessee should have signed underneath the grounds of appeal has been left blank. This is a mere irregularity and not a fatal defect. The defect is so minor that it should have been ignored or the assessee should have been asked to rectify that mistake. The Commissioner (Appeals) again referred to the cases in CAIT v. Sri Keshab Chandra Mandal [1950] 18ITR 569 (SC), and Special Manager, Court of Wards, Naraindas Narsinghdas v. CIT [1950] 18 ITR 204 (All..). The facts in the case reported in Naraindas Narsinghdas' case {supra) are totally different. The form of appeal was not signed by the assessee which was necessary but it was signed by an agent and this was held to be not proper. It may be mentioned here that the second point about the maintainability of the appeal before the Tribunal against the order of the AAC refusing to entertain the appeal on the ground that it is time barred, the decision of the Court has been overruled by the Supreme Court in a subsequent decision and to that extent it is no longer good law. Be that as it may in the case reported in the same volume at page 569 the Supreme Court held that where the agent is not permitted to sign but he signs, the return would be invalid. This is clearly distinguishable. The Commissioner (Appeals) further referred to the decision of the Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply [1970] 1 SCR 22 and tried to distinguish that case on the ground that the principles of the, Code of Civil Procedure have no application to the income-tax proceedings. This is also an incorrect approach. Most of the principles under the Code of Civil Procedure are based on certain basic principles of natural justice and also for the purpose of doing substantial justice to the parties by the Courts. Such principles have a bearing even under the other enactments. Maybe that the technical rules of procedure are inapplicable. The Commissioner (Appeals) further observed that under the income-tax law there is no inherent right of appeal. He perhaps does not know that there is no inherent right of appeal under any law. The statute must provide for the right of appeal, be it income-tax law or any other law. Therefore, the so-called distinction made by him between the income-tax law and the civil law pales into insignificance. It is also undisputed that whenever a right of appeal is given, the conditions required for filing a valid appeal have to be fulfilled and nobody can dispute this proposition. What we are concerned here is whether the assessee should be given an opportunity if at all there is a mistake, especially a mistake of the kind we have noticed in the present case. It is also incorrect to observe that the defect in this case goes to the root of the appeal. Mistake is very trivial and it does not affect the substantial right of the assessee in filing the appeal.

5. In view of the above, we restore the appeal to the file of the Commissioner (Appeals) with a direction to him to allow the assessee to rectify the defect which has been noticed and dispose of the appeal on merits according to law. 6. The appeal is allowed.


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