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Smt. Prabha Golecha Vs. Inspecting Assistant - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Jaipur
Decided On
Judge
Reported in(1984)7ITD683(JP.)
AppellantSmt. Prabha Golecha
Respondentinspecting Assistant
Excerpt:
.....for the assessment years 1976-77 and 1977-78, returns were filed by smt. prabha golecha, wife of shri hemchand golecha, on 21-2-1978 and 31-3-1978, respectively and then the original assessments had been made by the ito on 30-3-1978 and 31-3-1978 for these years, respectively. why returns were filed by smt. prabha golecha, the facts clarifying this question have to be stated. shri hemchand golecha had gone to geneva with his wife on 22-1-1976. his wife returned to india alone in may 1976. shri hemchand golecha had left for brazil on 6-7-1976 from geneva and was scheduled to arrive there on 7-7-1976. he had reached the airport of brazil on the scheduled date but since then his whereabouts have not been heard till date. all the efforts made by the members of his family remained without.....
Judgment:
1. These are in all five appeals : three under the Income-tax Act, 1961 ('the Act') and two under the Wealth-tax Act, 1957 ('the 1957 Act').

Two income-tax appeals arise from the Orders passed Under Section 144 of the Act, read with Section 147(a) and Under Section 146 of the Act relating to the assessment year 1977-78 and one appeal arises from the Order passed Under Section 144 for the assessment year 1978-79 against the Order of the Commissioner of Income-tax (Appeals). The wealth-tax appeals relate to the assessment years 1976-77 and 1977-78 against the Order of the Commissioner of Wealth-tax (Appeals). As all the appeals raise a common question, they are disposed of together by a combined Order. The facts arising out of these appeals are that for the assessment years 1976-77 and 1977-78, returns were filed by Smt. Prabha Golecha, wife of Shri Hemchand Golecha, on 21-2-1978 and 31-3-1978, respectively and then the original assessments had been made by the ITO on 30-3-1978 and 31-3-1978 for these years, respectively. Why returns were filed by Smt. Prabha Golecha, the facts clarifying this question have to be stated. Shri Hemchand Golecha had gone to Geneva with his wife on 22-1-1976. His wife returned to India alone in May 1976. Shri Hemchand Golecha had left for Brazil on 6-7-1976 from Geneva and was scheduled to arrive there on 7-7-1976. He had reached the airport of Brazil on the scheduled date but since then his whereabouts have not been heard till date. All the efforts made by the members of his family remained without success. As he could not be heard for quite sometime, his wife, Smt. Prabha Golecha, filed returns for the assessment years 1976-77 and 1977-78 and believing her case to be correct that the whereabouts of Shri Hemchand Golecha have not. been heard since 7-7-1976, the department proceeded to make assessments on the returns filed by her. Thereafter, the I AC (Assessment) issued a notice Under Section 148 of the Act for the assessment year 1977-78 and a notice Under Section 139(2) of the Act for the assessment year 1978-79 to Shri Hemchand Golecha. Also for both the years the notices Under Section 142(1) of the Act had been issued. Whereas, notice Under Section 139(2) stood served on 17-5-1978, it is not known from the Order of the IAC (Assessment) as to when the notice Under Section 148 was served for the assessment year 1977-78. No return was filed in response to the notices issued Under Sections 148 and 139(2). Also, the notices issued Under Section 142(1) remained uncomplied with. So, the IAC (Assessment) made a reassessment for the assessment year 1977-78 Under Section 144, read with Section 147(a) and an assessment Under Section 144 for the assessment year 1978-79 on him. The wealth-tax assessments also were made ex parte Under Section 16(5) of the 1957 Act, as the notices issued to Shri Hemchand Golecha Under Sections 14(2) and 16(4) of the 1957 Act remained uncomplied with for both the assessment years 1976-77 and 1977-78. In response to such notices, Smt. Prabha Golecha filed returns of the net wealth of her husband, but they were not accepted by the IAC (Assessment) on the ground that she was not competent to file returns on behalf of her husband to whom the notices were issued. Smt.

Prabha Golecha also made an application Under Section 146 to get the reassessment Order relating to the assessment year 1977-78 passed Under Section 144, read with Section 147(a) set aside, but that was also rejected by the IAC (Assessment) on the ground that no such application could be validly made by her on behalf of her husband.

2. Against these Orders, Smt. Prabha Golecha filed appeals but they were all dismissed in limine on the ground that in all these cases, Shri Hemchand Golecha was the assessee and, therefore, forms of appeals, the grounds of appeal and the verification appended thereto could have been signed only by him and not by Smt. Prabha Golecha. The form of appeal, the grounds of appeal and the form of verification appended thereto having not been signed by Shri Hemchand Golecha, the Commissioner of Income-tax (Appeals) took the view that the appeals were invalid. Almost, a similar view was taken in the wealth-tax appeals by the Commissioner of Wealth-tax (Appeals).

3. Aggrieved by the Orders of the Commissioner of Income-tax (Appeals) and the Commissioner of Wealth-tax (Appeals), Smt. Prabha Golecha has filed appeals before the Tribunal. We have heard Shri B. Khosla, the learned representative for Smt. Prabha Golecha and Shri A.P. Saxena, the learned representative for the revenue. The argument of Shri Sexena is that in all these cases Shri Hemchand Golecha is the assessee and it is he who can file the appeals. He further argues that Smt. Prabha Golecha can file appeal either under the authorisation of her husband or as a legal heir and she being neither is not competent to file appeals. For the purpose of the income-tax Shri Saxena drew our attention to Rule 45 of the Income-tax Rules, 1962. Referring to Clause (a) of Sub-rule (2) of Rule 45, Shri Saxena argues that Shri Hemchand Golecha, meaning thereby the assessee, being an individual should have signed the form of appeal, grounds of appeal and the form of verification appended thereto himself and that he could authorise somebody else to sign the form of appeal, the grounds of appeal and the form of verification only if he was absent from India. Shri Saxena says that Shri Hemchand Golecha having gone abroad could have anthorised his wife to sign the papers and file the appeal on his behalf but there is no evidence on record to show that he duly authorised his wife in this behalf. Also it is argued that the death of Shri Hemchand Golecha having not been proved and it having not been established that he had died prior to filing of appeals, his wife could not act as a legal heir. In short, the argument of Shri Saxena is that the lady cannot prosecute the appeals in any other capacity. So far as the contention of the revenue that the lady cannot prosecute the appeals either Under the authorisation or being the legal heir is concerned, we agree with the revenue, because no valid authorisation from Shri Hemchand Golecha in favour of his wife has been established and also it has not been proved that Shri Hemchand Golecha had died prior to filing of the appeals. Shri Khosla made a vain attempt before us that Under Section 108 of the Indian Evidence Act, 1872, Shri Hemchand Golecha, who has not been heard for last seven years, will be presumed to be dead and, therefore, his wife can act as a legal heir. This position has to be seen vis-a-vis the dates when the appeals were filed either before the Commissioner of Income-tax (Appeals)/the Commissioner of Wealth-tax (Appeals) or before the Tribunal. The last date of the whereabouts of Shri Hemchand Golecha being known is 7-7-1976 and the period of seven years has elapsed on 7-7-1983, but the income-tax appeals were filed on 15-4-1982 and the wealth-tax appeals were filed in the month of June and October 1982. It means that all these appeals were filed before the period of seven years elapsed. Under Section 108, there is no presumption as to the date of death. The only presumption is that if a person has not been heard for last seven years, then he will be presumed to be dead but there is no presumption as to when did he die during the period of seven years. For proving a particular date of death, the onus will be on Smt. Prabha Golecha which she has miserably failed to discharge.

4. Shri Khosla having not succeeded on the plea that the appeals were validly filed by Smt. Prabha Golecha either as a legal heir or as an authorised person, he relied before us on Kikabhai Abdulali v. ITAT [1957] 32 ITR 762. In this authority, the Bombay High Court has Ruled down that the right to appeal to the Tribunal from an Order passed by the AAC or the right to apply for a reference of a question of law arising out of an Order of the Tribunal is not confined technically to the party who is a party to the appeal but is a much wider right which may be exercised by any person who becomes liable to pay tax by any Order against which the appeal is preferred. Relying on this authority which Shri Khosla relied on before the Commissioner of Income-tax (Appeals) also, he argues that Under both the Sections 246 and 253 of the Act, an appeal can be filed by any assessee aggrieved by the Orders of the ITO or the AAC/the Commissioner of Income-tax (Appeals), as the case may be. Shri Khosla submits that Smt. Prabha Golecha is an aggrieved assessee within the meaning of Sections 246 and 253 and she is well entitled to file appeals against the Orders of the Commissioner of Income-tax (Appeals)/ the Commissioner of Wealth-tax (Appeals) and the Tribunal. Section 2(7) of the Act defines the expression 'assessee' meaning as a person by whom any tax or any other sum of money is payable and then it gives an inclusive definition Under Sub-clauses (a), (b) and (c). The question is whether Smt. Prabha Golecha can be said to be an 'assessee' within the meaning of Section 2(7).

Reassessment and assessments under the Income-tax/the Wealth-tax Act have been made by the department on Shri Hemchand Golecha, whereabouts of whom have not been heard now for more than seven years. In these circumstances, the demand arising from such Orders will be recovered from Smt. Prabha Golecha and/or from her sons, being the legal heirs of Shri Hemchand Golecha. So the tax is payable from Smt. Prabha Golecha.

The conduct of the department and the past proceedings fully support our view. For the assessment years 1976-77 and 1977-78, Smt. Prabha Golecha had already filed returns on behalf of her husband, whose whereabouts were not heard for some time and then the department believing the version of Smt. Prabha Golecha to be correct, made the assessments on her returns. It is only for the assessment year 1977-78, reassessment has been made. It means the assessment Order relating to the assessment year 1976-77 still stands and the demand arising thereon will certainly be forced against her. For the years under appeal also, she cannot be spared in any way because her husband, on whom the reassessment/assessments have been made, has not been heard now for more than seven years. On these facts, it is evident that the department will force recovery against her and/or against her sons. So without any doubt, the tax is payable from her within the meaning of Section 2(7) and she is an assessee for all purposes. Then the question is whether she is aggrieved. In the case of Adi Pherozshah Gandhi v.H.M. Seervai AIR 1971 SC 385, the Hon'ble Supreme Court observed as follows : From these cases it is apparent that any person who feels disappointed with the result of the case is not a 'person aggrieved'. He must be disappointed of a benefit which he would have received if the Order had gone the other way. The Order must cause him a legal grievance by wrongfully depriving him of something....

(p. 389) 5. Smt. Prabha Golecha is surely deprived of a benefit, which she would have received if the Order of the IAC (Assessment) had gone the other way for the years under appeal. The Orders of the IAC (Assessment) have surely caused a legal grievance to Smt. Prabha Golecha by wrongfully depriving her of some benefit. We, therefore, hold that she is an aggrieved assessee within the meaning of Sections 246 and 253, read with Section 2(7). Similar view has been taken by the Allahabad High Court in the case of Naresh Kumar Gupta v. CIT [1983] 144 ITR 556.

6. Shri Saxena has stressed the point that even as an aggrieved assessee, Smt. Prabha Golecha could have filed appeals herself in her own name but the instant appeals have been filed in the name of her husband by her under her signature. It is not disputed that Smt. Prabha Golecha has filed all the appeals and all of them bear her signatures.

It is also not in dispute that in the title in the form of appeals the name of Shri Hemchand Golecha appears in all the appeals. Since the name of Shri Hemchand Golecha appears in the title in the forms of all the appeals, the contention of the revenue is that for all purposes the appeals will be said to have been filed by Shri Hemchand Golecha and, therefore, within the meaning of Sub-rule (2) of Rule 45, it is he who could sign them and he having failed to sign them, all the appeals are liable to be dismissed being invalid. We do not agree with this submission. The questions : as to who has filed the appeals and whether the appeals having been filed by a proper person would stand vitiated by virtue of the fact that the name in the form of appeals has been wrongly given, are two different questions and they should not be mixed up with each other. We have already found that Smt. Prabha Golecha, being an assessee aggrieved, is entitled to file appeals Under Section 246 and Under Section 253. Then the question is whether the appeals so having been filed will be vitiated on the ground that she having failed to file them in her own name, filed them in the name of her husband. In our view, writing of the name of the husband in the title of the appeals will not vitiate them. The question is whether writing of the name of the husband in the title of the appeals gives rise to an invalidity or irregularity. The appeals have been filed by Smt. Prabha Golecha who, in our opinion, is fully competent to file them. That being so, the mere fact that the title of all the appeals contained the name of her husband will not cause any invalidity but only an irregularity. It is not the title but the facts as to who filed the appeals and whether the appeals have been filed by a legally competent person are important. In our opinion, there is full compliance of Rule 45, inasmuch as all the appeals have been signed by Smt. Prabha Golecha, who is an individual appellant. Defect in the title of the appeals being merely an irregularity can be cured before the Tribunal as well as before the Commissioner of Income-tax (Appeals)/the Commissioner of Wealth-tax (Appeals). Legal position obtaining under the Income-tax Act equally prevails under the Wealth-tax Act. Section 24(4) and Section 26 of the 1957 Act and Rule 6 and Form F of the Wealth-tax Rules, 1957, are relevant for the purpose of wealth-tax.

Form F requires that form of appeal, grounds of appeal and the form of verification appended thereto should be signed by the appellant. In the instant cases; Smt. Prabha Golecha being the appellant has validly signed them.

7. The Commissioner of Income-tax (Appeals) and the Commissioner of Wealth-tax (Appeals), as the case may be, have dismissed all the appeals in limine on the ground that the appeals having not been signed by the assessee, were not valid. They have not gone into the merits of the case. We having taken the view that the appeals are not invalid, but merely irregularity has arisen in that in the title of the appeals, name of the appellant's husband has been wrongly mentioned, the Commissioner of Income-tax (Appeals)/the Commissioner of Wealth-tax (Appeals) will Order the appellant to remove such defect occurring in the title in the form of the appeals within the period specified by them and then they will dispose of the appeals on merits.

8. As similar defect has also occurred in the appeals, which have been heard by us, we direct the appellant to correct the title and substitute the name of her husband by her own name in the title in the forms of appeal within 8 days from the date of the receipt of the Order. When the defect is rectified, the registry will bring it to our notice to enable us to amend the title of the Tribunal's Order. If the defects are not removed, then all the appeals will stand dismissed for non-prosecution.


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