Skip to content


Sheonath Singh Vs. Commissioner of Income-tax, West Bengal - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberIncome-tax Ref. No. 29 of 1955
Judge
Reported inAIR1958Cal606,[1958]33ITR591(Cal)
ActsIncome Tax Act, 1922 - Sections 33(3) and 61; ;Income Tax Rules, 1922 - Rule 22; ;Appellate Tribunal Rules, 1946 - Rule 17
AppellantSheonath Singh
RespondentCommissioner of Income-tax, West Bengal
Appellant AdvocateSankar Ghosh and ;B.P. Roy, Advs.
Respondent AdvocateE.R. Mever and ;B.L. Pal, Advs.
Cases ReferredKendall v. Hamilton
Excerpt:
- chakravartti, c.j.1. one mr. sheo nath singh objected to the adding back of a sum of rs. 14,000/- in his assessment for the year 1944-45 and having failed to obtain complete relief from the appellate assistant commissioner, became desirous of preferring an appeal to the appellate tribunal. the order of the appellate assistant commissioner was passed on the 30th of july, 1954 and a copy of it reached mr. singh on 5th of august following. making allowance for certain holidays, the last day for filing the appeal before the appellate tribunal would be 13th of october, 1954. on 30th of september, 1954, a memorandum of appeal was filed in the office of the tribunal, but it was neither signed nor verified by mr. singh. it was both signed and verified by an authorised representative, one mr. s.k......
Judgment:

Chakravartti, C.J.

1. One Mr. Sheo Nath Singh objected to the adding back of a sum of Rs. 14,000/- in his assessment for the year 1944-45 and having failed to obtain complete relief from the Appellate Assistant Commissioner, became desirous of preferring an appeal to the Appellate Tribunal. The order of the Appellate Assistant Commissioner was passed on the 30th of July, 1954 and a copy of it reached Mr. Singh on 5th of August following. Making allowance for certain holidays, the last day for filing the appeal before the Appellate Tribunal would be 13th of October, 1954. On 30th of September, 1954, a memorandum of appeal was filed in the office of the Tribunal, but it was neither signed nor verified by Mr. Singh. It was both signed and verified by an authorised representative, one Mr. S.K. Ray, and along with the memorandum was filed a document of authority. The Assistant Registrar of the Tribunal pointed out that the memorandum had not been signed by the appellant, whereupon the authorised representative said that the appellant was in England at the time and that a revised memorandum of appeal would be filed as soon as he returned. Subsequently, on 13th of October, 1954, a second memorandum was filed which was verified by Mr. Singh and signed below the verification, but not further signed below the grounds of appeal, as set out in the statutory form. There, it was again signed by the authorised representative, Mr. S.K. Ray. Still later on 14th of December, 1954 Mr. Singh signed both the memoranda at all the places where the signature of the appellant was required. As the memoranda stood after these further signatures, that of 30th of September, 1954, was signed and verified by both Mr. Singh and his authorised representative and that of 13th of October, 1954, was verified by him and signed both by the authorised representative and himself.

2. When the appeal came up for hearing, a preliminary objection was taken on behalf of the Department that the memorandum of appeal was not in order and that by it no appeal before the Tribunal had been filed. The authorised representative explained to the Tribunal the circumstances in which the memoranda, as originally filed, could not contain, in one case, neither the signature, nor the verification of the appellant and, in the other case, his signature and contended that the memoranda might be accepted. The Tribunal did not agree. They held that the absence of the appellant's signature in the memorandum of appeal was a material defect and that since the memorandum had not been brought to order within the period of limitation, it could not in law be treated as a proper memorandum at all. In their order, the Tribunal said that even when the appellant was made aware of the defect, no prayer was made on his behalf for the condonation of the delay on the ground of there having been sufficient reason for filing the appeal in a defective form. On those two grounds, they refused to admit the appeal and made an order dismissing it.

3. I may pause here for pointing out that the Tribunal do not seem to have had any clear notion of what they were doing. If the appeal was no appeal at all, there could hardly be any question of admitting it, the only question being one of receiving it and directing it to be registered. But assuming that by saying that they were refusing to admit the appeal, they meant that they were rejecting the memorandum of appeal, the further order made by them dismissing the appeal can in no view be supported. If an appeal is no appeal at all, there can be nothing to dismiss,

4. The assessee was dissatisfied with the Tribunal's order and required them to refer the matter to this Court for its opinion. Accordingly, the Tribunal has referred to this Court the following question of law :

'Whether on the facts and in the circumstances of this case the Tribunal was justified in refusing to admit the appeal based on the memorandum of 30th September, 1954 and 13th October, 1954 filed by the assessee?'

5. In order to appreciate the contentions advanced before us by the parties, it will be necessary to refer to certain provisions in the Income-tax Act and certain Rules. It will be convenient to read them first.

6. The filing of an appeal before the Appellate Tribunal is provided for in Section 33(3) of the Act. So far as is material, the section says that 'an appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner'. The form has been prescribed by Rule 22 of the Rules framed by the Central Board of Revenue in exercise of the power conferred by Section 59 of the Act. The language of Rule 22 is : 'An appeal under Section 33 or 33-B to the Appellate Tribunal shall be in the following form'. And then the form is set out. The form begins with headings for various entries relating to the history of the proceeding and the address of the parties. Then, after providing a space for the relief claimed in the appeal, it directs that the grounds of appeal shall then be set out. Below the space provided for the grounds of appeal appear the following entries:

'Signed.

(Appellant.)

Signed.

(Authorised representative, if any.)'

Below the space thus provided for the signatures is the form for the verification. The form is in the first person singular and begins with the words:

'I, the appellant do hereby declare'.Below that recital is a space for the date of theverification and still lower down is the entry 'Signed'. Although against the word 'Signed', it is notstated that the appellant is to sign it, there can beno question, having regard to the language of therecital portion, that the intention is that the appellant himself should verify the contents of the memorandum.

7. By virtue of Sub-section (5) of Section 59 of the Act, Rules made under the section have to be published in the Official Gazette and it is provided that, upon such publication, they shall have effect as if enacted in the Act. The form is thus not only a statutory form, but also a part of the statute.

8. It was contended before us on behalf ofthe assessee that the form did not require that wherethere was an authorised representative, the memorandum of appeal should be signed by both the representative and the appellant. It was said thatwhile the memorandum was always to be verifiedby the appellant himself, it could be signed by theauthorised representative, if there was such representative, without also being signed by the appellant. What was thus contended amounted to say-'signed ''signeding that the entries, (Appellant)' and (Authorised representative, if any)', were to be taken not conjunctively, but disjunctively. It will be noticed that, even on that argument, the memorandum of 30-9-1954, as originally filed, would not be saved, because it was not even verified by the appellant.

9. On the question of the true construction of the form, I do not think that the argument, on behalf of the assessee can be accepted. We were invited to contrast the form for an appeal to the Appellate Assistant Commissioner, prescribed by Rule 21, where elaborate directions are given as to how the form of appeal and the form of verification are to be signed. The very first direction is that in the case of an individual, the form should be signed by the individual himself. It was said that there was no such direction contained in the form for an appeal to the Appellate Tribunal, prescribed by Rule 22, and it would be reasonable to infer from that circumstance that the form did not intend, even where the assessee was an individual, that the appeal should be signed by him personally. Our attention was also drawn to Rule 17 of the Rules framed by the Appellate Tribunal where it is provided that where a memorandum of appeal is signed by an authorised representative, the assessee shall append to the memorandum a document authorising the representative to appear for him. The argument was that Rule 17 clearly contemplated that a memorandum of appeal could be signed by an authorised representative and since there was no direction, as in the case of the form for an appeal to the Appellate Assistant Commissioner, that the appellant himself was to sign the memorandum, a signature of the authorised representative would be sufficient in law. That argument does not appear to me to be tenable.

10. It is true that the respective forms or entries provided for the signature of the appellant and the authorised representative are not connected by the conjunction '&' but equally they are not disconnected by the word 'or'. There is also no clear provision, as is to be found in the Code of Civil Procedure, as to whether the memorandum should be signed by the appellant and his authorised representative or by the appellant or his representative. Still, however, it appears to me that since the form requires the memorandum to be always verified by the appellant himself and since there is a space provided for the signature of the appellant, it could not have been the intention of the framers of the form that an appellant, who would have to deal with the memorandum personally for the purpose of verifying its contents, need not also sign it under the grounds of appeal. One can understand a provision authorising the signing and verification of a document by a person other than the party, but if the party concerned is required by a provision to handle the document and to put his signature at least in one place, it does not stand to reason that if the form also contains a space for his signature at another place, that signature would be optional. An assessee desiring to appeal to the Appellate Tribunal would have to have the memorandum in his hands for the purpose of verifying it and he would have to sign the memorandum below the verification. J cannot conceive of any reason why the framers of the form should have provided another space for his signature, if it was not intended that he himself should sign the document also there.

11. The construction which appears to me to be the true construction is suggested by two other circumstances. The entries for the signature of the authorised representative read as signed '(Authorised representative, if any)'. which clearly means that the memorandum will be signed by an authorised representative, only if there be an authorised representative. There may be cases where there is no authorised representative at all and, in such a case, the memorandum will undoubtedly have to be signed by the appellant himself. The words 'Authorised representative, if any' cannot, to my mind, be read as suggesting that if there be an authorised representative and he signs, it will be unnecessary for the appellant also to sign it. The form of expression used appears to roe to be only a variant of the form in which, ordinarily, an asterisk is placed against a direction to do a certain thing with a foot-note at the bottom that if that thing is not relevant, the direction may be crossedout. The combined effect of the headings or entries in the form appears to me to be that the memorandum shall always be signed by the appellant, but if there he an authorised representative, it shall also be signed by him.

12. It is also to be noticed that the Act, wherever it requires or authorises an assessee tofile any document, always requires that it should be signed by himself. It is not provided anywhere that an authorised representative may sign a document on behalf of the assessee. What the functions of an authorised representative, as contemplated by the Act, are will appear both from Section 61 of the Act and from Rule 17, to which the learned Counsel for the assessee himself referred. Section 61, which is the only section providing for the participation of authorised representatives in proceedings under the Act, only says that the assessee may attend by a person authorised by him in writing in this behalf. The function which can be performed by the authorised representative is thus only the function of attendance or appearance on behalf of the assessee. It is that function which is emphasised by Rule 17 of the Appellate Tribunal Rules when it lays down that when a memorandum of appeal is signed by an authorised representative, the assessee shall append to the memorandum a document, authorising the representative to appear for him. The intention appears to be that if an assessee has an authorised representative and if the authorised representative signs the memorandum of appeal, then, in view of the functions of the authorised representative, as contemplated by the Act, it must be presumed that the assessee intends to attend by him and, therefore, it is necessary that he should file along with the memorandum signed by an authorised representative a document authorising him to appear and attend on the assesse's behalf. The provisions do not suggest that the authorised representative, while he can sign a memorandum of appeal as an authorised representative, can also sign it in the place and capacity of the appellant.

13. When I say that the intention of the form is that a memorandum of appeal must, in any event, be signed by the appellant himself, I do not intend to suggest that signing by the appellant must always be signing by the appellant by his own hand. There may be a case where a constituted attorney signs the memorandum or the more obvious ease where the appellant being a company, it is signed by some person authorised to sign on the company's behalf. Whether such cases are also excluded is not a question which calls for decision in the present case, but I should not be understood as saying that they too are excluded.

14. It was also contended by the learned Counsel that the signature of the authorised representative in the present case should be treated as the signature of the appellant himself. I do not at all agree that it can be so treated, but it also seems to me that, on the facts of the present case, the question does not arise. The authorised representative, when he signed the memoranda of appeal, purported to sign them on his own behalf as a representative. He did not purport to sign them as the appellant.

15. On the question of construction, therefore, I am of opinion that the decision must go against the assessee and it must be held that, as originally filed neither of the memoranda of appeal was in the statutory form. The next question is, and in fact that is the question referred to us, whether the Tribunal was justified in refusing to 'admit' the appeal on the grounds given by them.

16. It will be pertinent at this stage to recall what the Tribunal have in fact held. They have first taken note of the fact that the memoranda of appeal were not in the statutory form and then they have said that no application for condonation of the delay, because of the existence of sufficient grounds for not filing the appeal in the proper form within the period of limitation, was filed, although the assessee came to know of the defect in his memoranda. The view of the Tribunal thus appears to have been that the memoranda, as originally filed, could not possibly be accepted, even with the amendments subsequently made whereby the appellant's signature at all the relevant places was supplied; and, secondly, that proper memoranda of appeal came into existence only on 14th of December, 1954, when the period of limitation had long expired and those memoranda could be accepted only if the assessee applied for the acceptance of one of them under Section 33 (2-A) of the Act and made out sufficient grounds for the delay in filing a proper appeal. The Tribunal's view thus was that the memoranda of appeal, without the amendments, were thoroughly bad and indeed nullities, that the amendments made after the expiry of limitation were by themselves of no avail and that relief could only be given to the assessee under Section 33 (2-A), for which he had not even applied.

17. In my opinion, the view taken by the Tribunal is entirely wrong. To take the first ground for that view first, it has been expressed in the following words :

'The non-signature of the appellant at the proper places required by statute was material and we cannot admit an appeal, not properly signed at the proper time, that is, within the period of limitation.'

Thus the Tribunal think that the absence of the signature on the memorandum of appeal when it was filed was an illegality and the continuance of the memorandum in that condition up to the end of the period of limitation made it impossible to treat that memorandum as a proper memorandum, even though the signature might have been supplied subsequently. The basis of that view is that a memorandum of appeal, not properly signed, is a wholly invalid document and of no effect.

18. However rigid may be the principles applicable to appeals filed before the Tribunal, they cannot be more rigid than the principles applicable to plaints and memoranda of appeal filed before the Civil Courts. As to plaints, Order 6, Rule 14 of the Code of Civil Procedure lays down that 'every pleading shall be signed by the party and his pleader (if any)'; and as to memoranda of appeal, Order 41, Rule 1 lays down that 'every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader'. In the case of the plaint, it is to be signed by both the plaintiff and his pleader, if he has a pleader, but in the ease of a memorandum of appeal, it can be signed by either of them. The language of the Rules, however, is in both cases as mandatory as the language of Rule 22, ot the Rules framed by the Central Board of Revenue and they too are contained in a statute. Yet, it has been the uniform view of all High Courts that the absence of or defect in the signature of the plaintiff or the appellant on the plaint or the memorandum of appeal, as the case may be, is not an illegality, but only an irregularity which does not in any case affect the jurisdiction of the Court to entertain the plaint or the memorandum. How far the Courts have gone can be seen from the well-known decision of the Privy Council in the case of Mohini Mohun Das v. Bungsi Buddan Saha Das, ILR 17 Cal 580 (A), where, of the several co-plaintiffs of a plaint, only one of them had signed and verified it, but the Privy Council, nevertheless, held that the suit must be deemed to have been filed by the other plaintiffs also in spite of the absence of any signature or verification by them, if only it was shown that the suit had been filed with their knowledge and authority. It has repeatedly been pointed out that what the Courts have to look to in such cases is whether the real plaintiff or the real appellant had intended and caused the plaint or the memorandum to be placed before the Court and if such intention appears clearly from the proved circumstances of the case, then any defect or omission to comply with any of the procedural rules regarding signature or verification is to be treated as a mere procedural defect which can be set right at any time by permitting an amendment of the document, irrespective of the question of limitation. In such cases, there is no question of making any application for condonation of the delay on the basis that only when the defect is remedied does a proper plaint or a proper memorandum of appeal come into existence and if by that time the period of limitation has expired, condonation of the delay in filing a proper plaint or a proper memorandum of appeal must be obtained from the Court. The original plaint or memorandum of appeal being a valid document, in spite of defects, there was a valid plaint or memorandum filed within limitation.

19. I think it will be otiose to cite cases after the decision of the Privy Council to which I have already referred, but, I might invite attention to a few. Long ago, in the case of Basdeo v. John Smidt, ILR 22 All 55 (FB) (B), the rule was thus laid down :

'The mere fact that the plaint in a suit has not been signed by the plaintiff named therein or by any person duly authorised by him in that behalf, as required by Section 51 of the Code of Civil Procedure (it was the Code of 1882), will not necessarily make the plaint absolutely void. A defect in the signature of the plaint, or the absence of signature, where It appears that the suit was in fact filed with the knowledge and by the authority of the plaintiff named therein, may be waived by the defendant, or, if nectary, cured by unendment at any stage of the suit.'

To refer to another Allahabad decision, it was held in Bisheshar Nath v. Emperor, ILR 10 All 147 : (AIR 1918 All 275) (C), that Order 6, Rule 14 of the Code of Civil Procedure which requires a pleading to he signed by a party was merely a matter of procedure. It was added that it was the business of the Court to see that this provision was carried out and where a suit was duly authorised, the proper signing of the plaint was a matter of practice only and if any mistake or omission had been committed, it could be amended by the Court at any time when it was satisfied that the suit had been duly authorised. To cite next a Madras decision, it was held in Lodd Govincloss Krishnadas Varu v. Muthiah Chetty, AIR 1925 Mad 660 (D), that although the plaint in that case had not been signed by the plaintiff, but was signed by a person who purported to act as his agent, without, however, obtaining the requisite authority to sign and verify the plaint on his behalf, it could not be said that, before such leave was obtained, there was no plaint before the Court at all. It was true that the plaint was defective, but leave subsequently granted to the agent to sign and verify the plaint would effectively remove the defect and make the suit based on it a good suit. Coming now to our own Court, it was held in the case of Mohiuddm v. Pirthichand Lal, AIR 1915 Cal 444 (E), where the defect was discovered at the appellate stage, that where a plaint had not been signed and verified as required by law and the omission came to notice in the Appellate Court, the Appellate Court could not dismissthe suit on the ground of such defect, became the defect did not affect the merits of the case or the jurisdiction of the Court to entertain the plaint.

20. Somewhat different, but governed by the same principle, is another line of cases where the legal practitioner who filed the plaint or a memorandum of appeal or an application for execution had no authority at all to act at the time he filed the document and the defect was not removed till after the expiry of limitation. In all such cases it was held that the defect was not a material defect, going to the validity of the plaint or the memorandum or the application or to the jurisdiction of the Court to entertain the document, hut it was only an irregularity which the Court, on a consideration of the circumstances, could itself direct to be removed at any time. Illustrations of that principle are to be found in the cases of Jagadeesh Chandra Dhabal Deb v. Satya Kinkar Shahana, ILR 63 Cal 733 (F) and Brojo Nath Surma v. Iswat Chandra Dutt, ILR 19 Cal 482 (G). The principles applicable to cases of this kind are discussed at great length and with much felicity of phrase in the decision of this Court in Chhayemannessa Bibi v. Basirar Rahman, ILR 37 Cal 399 (H), which has almost become a locus classicus on the subject. The principles on which the Court acts on such occasions were laid down by Bowen, L. J., in the case of Cropper v. Smith (1884) 26 Ch D 700 (I), where be said that the Courts existed to decide the rights of parties and not to punish them for their mistakes in the conduct of their cases and that the proper function of the Court was not in such cases to impose discipline, but to decide the points of controversy between the parties, if it appeared that the parties really desired to bring up the matter before the Court for adjudication. In even more eloquent words was the principle stated by Lord Penzance in Kendall v. Hamilton, (1879) 4 AC 504 at page 525 (J), when he said that procedure was after all the machinery of the law, the channel and means whereby law was administered and justice reached; and that procedure would be strangely departing from its proper office, when, in place of facilitating, it was permitted to obstruct and even extinguish legal rights and was thus made to govern where it ought to subserve.

21. It will be clear from the uniform view of the Courts, as reflected in the decisions which I have cited, that the rule as to the signature of a plaint or a memorandum of appeal by the plaintiff or the appellant, although expressed in the relevant statute in the language of a mandatory provision, has never been regarded as mandatory, but the rule being a procedural rule has been treated as only directory, non-compliance or defective compliance therewith being held to be irregularities, curable by the Court at its own instance and not illegalities affecting the jurisdiction of the Court. Rule 13 of the Appellate Tribunal Rules to which the Tribunal did not refer, appears to be based on that view. The Tribunal, in my view, were, therefore, clearly in error in holding that the non-signature of the appellant at the proper places of the memoranda of appeal, as required by the statutory rule, was a material defect which prevented them from accepting the documents as good memoranda and that although the defects had been subsequentlyremoved, the period of limitation having meanwhile expired, the removal was of no assistance to the assessee. This last point was specifically dealt with in the case of ILR 37 Cal 399 (H), to which I have already referred, where it was held that, in similar cases, the Court might in its discretion allow the document to be amended and if such amendment was allowed, it would take effect from the date when the document had originally been filed.

22. It was contended by Mr. Meyer that the assessee had never asked the Tribunal to exercise then inherent power of allowing the memoranda to be rectified or the power to accept the memoranda as good memoranda, in view of the fact that the defects had since been removed. I do not think that that contention has much force, because the assessee was asking the Tribunal to accept the memoranda as good memoranda. Secondly, all the facts were before the Tribunal and they clearly misled themselves in law by thinking that the initial defects in the memoranda were fatal, leaving them powerless to accept them and that they could accept them only as memoranda, filed after the period of limitation had expired, provided grounds for condoning the delay had been made out. Their view of the law that the only alternatives before them was either to reject the memoranda as bad or to accept them as good memoranda filed for the first time on 14th of December, 1954, on sufficient cause for the delay having been made out, was, in my view, clearly erroneous. The memoranda, as originally filed, were not nullities. The Tribunal had power to accept the memoranda in the condition in which they found them at the time they were hearing the appeal, provided they were satisfied that the assessee had in fact intended the appeal to be placed before them and had done so through the authorised representative, although he had not himself signed the plaint. Of the fact that he had such intention, there could not possibly be any doubt in the case. It appears that the second memorandum, filed on 13th October, 1954, was verified by the assessee on 6th, which suggests that he was still out of India, but it is clear that he authenticated the statements with memorandum and cause it to be lodged with the Tribunal. The Tribunal failed to apply the correct principles and came to an erroneous decision on a view of the law which, in my opinion, was clearly wrong.

23. The principles which I have tried to explain will apply to both the memoranda, because by 14th December both had been brought to order. What the actual decision would be, if the proper principles were applied, it is not for us to say and we can only hold that the Tribunal was not justified in refusing to admit the appeal on the foot of the two memoranda of appeal filed before them or either of them on the grounds given in the appellate order and particularly in the view that the defects were material defects which affected their jurisdiction to entertain the memoranda. The proper principles are those which I have endeavoured to explain,

24. For the reasons given above, the answer to the question referred to the Court must be in the negative.

25. The assessee will have the costs of this Reference.

Guha, J.

26. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //