MASUD J. - The question of law raised in the reference has been referred to us under the order of the High Court of Judicature at Calcutta dated the 3rd June, 1960. The relevant year of assessment is 1952-53 and the corresponding accounting period is the Diwali year 2008. The Income-tax Officer has made the assessment under the provision of section 22(4) of the Income-tax Act, 1922, on account of the failure on the part of the assessee to comply fully with the notice under section 22(4) issued by him. In the assessment order the assessee was described as 'Messrs. Chandmull Pannalal, Prop : Pannalal Juniwal', and the assessment was made in the status of an individual. Being aggrieved by the assessment, an appeal was filed before the Appellate Assistant Commissioner by 'Chandmull Pannalal', the grounds of the appeal having been verified as Pannalal, the karta of the Hindu undivided family. The Appellate Assistant Commissioner dismissed the appeal and confirmed the assessment by its consolidated order dated 10th February, 1958. Thereafter, a second appeal was filed by 'Chandmull Pannalal' before the Appellate Tribunal, but the memorandum of appeal was verified by Pannalal Juniwal describing himself as the karta of the Hindu undivided family. A preliminary objection was taken before the Tribunal on behalf of the department to the effect that as the appeal was file by 'Chandmull Pannalal', a Hindu undivided family, through Pannalal Juniwal, the karta of the Hindu undivided family, the appeal was incompetent. The Tribunal found that the assessment had been made on 'Chandmull Pannalal' in the status of an individual and, as such, the appeal filed by 'Chandmull Pannalal', the Hindu undivided family, was not maintainable and, accordingly, the appeal was dismissed on the said preliminary point. On the above facts the following question of law has been referred to the High Cour :
'Whether in the facts and circumstances of the case an appeal lay by the Hindu undivided family against the order of the Income-tax Officer assessing the individua ?'
It may be noted that the preliminary point of law has been raised for the first time by the revenue before the Tribunal, although the memorandum of appeal before the Appellate Assistant Commissioner against the assessment of the Income-tax Officer had been made by Pannalal as karta of Chandmull Pannalal, a Hindu undivided family. Under section 33 of the Act appeals to the Appellate Tribunal can only be filed by an assessee objecting to an order passed by the Appellate Assistant Commissioner within 60 days of the date on which such order is communicated to him. 'Assessee' under section 2(2) means a person by whom income-tax or any other sum of money is payable under the Act, and includes every person in respect of whom any proceeding under the Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him. Now, in this particular case, the assessment has been made against 'Messrs. Chandmull Pannalal, Prop : Sri Pannalal Juniwal', as an individual. According to the revenue the appeal should have been filed by the said Chandmull Pannalal Juniwal in his individual capacity and not by him as the karta of 'Chandmull Pannalal', a Hindu undivided family. There is some force in this connection inasmuch as the appellant before the Tribunal cannot strictly be called the 'assessee' within the meaning of section 33. But in our opinion the objection raised is of a highly technical nature and is more one of form than of substance. Notice under section 22(2) was served on 'Chandmull Pannalal, Prop : Chandmull Pannalal Juniwal'. The Income-tax Officer has made the assessment in the name of 'Chandmull Pannalal, Prop : Chadmull Pannalal Juniwal'. The order of the Appellate Assistant Commissioner has also described the assessee as 'Messrs. Chandmull Pannalal, Prop : Sri Pannalal Juniwal'. Neither the department nor the Appellate Assistant Commissioner of Income-tax at the stage questioned the maintainability of the appeal although under section 30, the appeal before the Appellate Assistant Commissioner has not duly been filed by the person against whom the assessment order has not duly been filed by the person against whom the assessment order has been made by the Income-tax Officer. The obvious reason why no objection has been made at that stage is because there was no mistake as to the identity of the assessee although the description of the assessee has not been correctly made. It is unfortunate that this preliminary point has been raised for the first time before the Tribunal and the Tribunal without deciding the merits of the appeal dismissed the same on such preliminary ground. Apart from this reference, there are three more references pending before us where the similar point of law has been referred to the High Court for different assessment years. A similar point was raised in L. N. Gadodia & Co. v. Commissioner of Income-tax, where Falshaw J. at page 419 has state :
'The point raised in a highly technical one and it would certainly appear to involve great hardship on the assessee if he were not only to be denied any further relief to which he might be entitled without any hearing on the merits of his appeal by the Tribunal, but were also to be deprived of the relief granted to him by the Appellate Assistant Commissioner, including his recognition as a registered firm instead of a Hindu undivided family, simply on the ground that the appellants have not been correctly described in the memorandum of appeal preferred to the Appellate Assistant Commissioner.'
Similarly, Tek Chand J. has, on a similar point of law, stated in Gian Chand Vir Bhan v. Commissioner of Income-ta :
'The decision of the Tribunal does not appear to be correct and the applicant ought not to have been deprived of a hearing simply because he had described himself as a member of the partnership firm.... The contention which Vir Bhan desires to raise before the Tribunal, among others, is that his firm should have been taxed not as Hindu undivided family but as on ordinary partnership firm. At the worst, signing his name and describing himself as member of the firm can be deemed as a misdescription and for such a misdescription the right of appeal cannot be taken away.
Mr. Sachindra Kumar Ray, learned advocate for the applicant, has strongly relied on these two cases and has submitted that the principles of law decided in those two cases should be applied to the instant case inasmuch as the facts are more or less similar. Mr. Balai Pal, learned counsel for the Commissioner of Income-tax, has not challenged the correctness of those two decisions but he has tried to distinguish those two cases from the facts of the instant case on the ground that in both the cases notices were issued by the Income-tax Officer to the assessee as a partner and the appeals also were field in both the cased by the partner. But the distinction that he has sought to make is without any difference. In L. N. Gadodia & Co. v. Commissioner of Income-tax, Gadodia & Co. consisted of two members, Gadodia and his son, Ram Gopal. The application of Gadodia & Co., for registration under section 26A of the Income-tax Act was dismissed and Gadodia & Co. was assessed in the status of a Hindu undivided family. Two appeals were filed by Ram Gopal in the name of their firm, Gadodia & Co., one against the order refusing under section 26A and the other against the assessment order on the ground that the Income-tax Officer has erred in assessing Gadodia & Co. in the status of a joint Hindu family. The Appellate Assistant Commissioner accepted the appeal and, in accordance with the decision of the Tribunal in regard to the assessment of the assessee for the immediately preceding assessment year, directed the Income-tax Officer to register the firm and granted some other relief also. A further appeal was filed by Gadodia on behalf of the firm, Gadodia & Co., before the Appellate Tribunal to obtain certain other reliefs. The department raised a preliminary objection to the maintainability of the appeal contending that the appeal before the Appellate Assistant Commissioner ought to have been in the name of the joint Hindu family and no appeal could have been filed in the name of the firm. The Punjab High Court held, on the facts, that whether Gadodia & Co. was a joint family or a firm, the appeal to the Appellate Assistant Commissioner was on behalf of Gadodia and Ram Gopal who were its members, and as in the appeal they challenged not only the assessment but the basis for it, the appeal from the order of the Income-tax Officer was by the assessee and was, therefore, maintainable. Similarly, in Gian Chand Vir Bhan v. Commissioner of Income-tax, Vir Bhan, at his own instance, was assessed in the status of a Hindu undivided family for the assessment years 1944-45 and 1945-46. He took a plea in the proceeding for the assessment year 1946-47 that a partition had taken place in the family and the business was being carried on by a firm consisting of the erstwhile coparceners. That plea was rejected. For the assessment year 1947-48 a notice under section 22(2) was issued to the firm but the assessment was made in the status of a Hindu undivided family. On appeal, the Appellate Assistant Commissioner also treated the assessee as a Hindu undivided family. The firm preferred an appeal to the Income-tax Tribunal, Vir Bhan signing the memorandum of appeal in his capacity as a partner of the firm and not as the karta of the Hindu undivided family. The Appellate Tribunal dismissed the appeal as incompetent on the ground that Vir Bhan has styled himself as a member of the firm. Khosla C.J. and Tek Chand J. held that whether as representative of the family or as representative of the firm Vir Bhan was competent to prefer the appeal before the Appellate Tribunal. As the memorandum of appeal was signed by Vir Bhan who was competent to sign it in either capacity, the Punjab High Court held that the Tribunal was wrong in dismissing the appeal in limine. Thus, in both these cases the assessees contention as members of a partnership firm has been rejected by the Income-tax Officer and the assessment was made as Hindu undivided family. The appeals have in fact been filed by the partner although they should have been filed by the Hindu undivided family. But even then the Punjab High Court decided against the department. The learned advocate for the assessee has referred us to page 14 of the paper-book to show that the business concerned has been named as Chandmull Pannalal, Chandmull being the father of Pannalal, and that Pannalal after the death of his father, Chandmull, and the birth of his sons, who were three in number, formed a Hindu undivided family. Mr. Pal, on behalf of the department, has not raised any dispute on this point. But, apart from these facts, in the instant case, the Income-tax Officer in his assessment order has described the assessee as 'Sri Chandmull Pannalal, Prop : Chandmull Pannalal Juniwal'. The Appellate Assistant Commissioner has made his order against the assessee describing as 'Messrs. Chandmull Pannalal, Prop : Sri Chandmull Pannalal'. Pannalal Juniwal from the very beginning contended that the assessment of the business should be made as a Hindu undivided family, and, accordingly, Pannalal Juniwal instead of describing himself as proprietor signed the memorandum of appeal as karta of Chandmull Pannalal. Thus, Pannalal whether in individual capacity or as karta of the Hindu undivided family is competent to verify the memorandum of appeal in either capacity. What has been assessed is the business, styled as 'Chandmull Pannalal' and Pannalal is the person in charge of the business either as individual proprietor or as a member of the Hindu undivided family.
For the reasons stated above, the answer to the question will be in the affirmative and in favour of the assessee. Each party shall bear and pay the costs of this reference.
MITTER J. - I agree.
Question answered in the affirmative.