CHELAMALA SETTI ADEYYA Vs. COMMISSIONER OF GIFT TAX

JUDGEMENT

(1.) THE question we are called upon to answer in this reference is formulated in these terms :

(2.) THE facts giving rise to this reference are shortly these :

(3.) IT is seen that neither S. 22, nor r. 5 requires the assessee to annex the demand notice to the appeal petition. All that r. 5 contemplates is that the appeal should be filed in the form indicated, viz., Form D. Even Form D does not specifically require the assessee to attach the notice of demand. It is no doubt true that there is an implied requirement in the above, in that, it says "the notice of demand attached hereto was served upon your petitioner". But does the failure to comply with this implied requirement result in the dismissal of the petition on the ground of its being time barred ? It is manifest from the Form that it makes it obligatory on the assessee to sign the appeal and to verify it in the manner indicated therein. But in regard to the filing or annexing the notice of demand to the appeal petition it does not make it imperative to file the notice. It is plain that the attaching of a copy of the order and also the verifying of the appeal in the manner prescribed in the Form applicable thereto, are made madatory by r. 5(2) and the non fulfilment of the provisions thereof will result in the presentation being not in accordance with law. The Form itself thus makes the distinction between the two, thereby establishing that the omission to file the notice of demand does not incur any penal consequences. It is only when there is a failure to fulfil mandatory terms of a provision of law that the presentation could be ignored, that is, that there was no presentation in law. But the omission to attach a notice, as in this case, can be construed only as an irregularity in the presentation. That can be cured by the production of the notice of demand subsequently.