GOURI KUMARI DEVI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) In this case the Income-tax Officer, Gaya, completed the assessment of income-tax for the assessee by his order dated the 19th December, 1948. On appeal the order of assessment was confirmed by the Appellate Assistant Commissioner on the 19th November, 1954. Thereafter the assessee preferred an appeal to the Income-tax Apnellate Tribunal, Patna Bench which was numbered as I.T.A. 6452 of 1954-55. The memorandum of appeal was not signed by the assessee herself but by Srimati Parbati Devi, who had the general power of attorney on behalf of the assessee. When the appeal was taken up for hearing on the 21st February, 1956, an objection was taken by the authorised agent of the Income-tax Department that the appeal was not maintainable as it was not signed by the assessee herself. This objection was accepted by the Income-tax Appellate Tribunal on the ground that there was nn power granted to Srimati Parbati Devi for signing the memorandum of appeal to the Income-tax Appellate Tribunal by the power-of-attorney dated the 5th of January, 1952 The appeal was accordingly rejected by the Income-tax Appellate Tribunal. At the instance of the assessee the Income-tax Appellate Tribunal has referred the following questions of law for the opinion of the High Court:--

(2.) On the first question the learned Counsel for the assessee submitted the argument that under Clauses 1, 2 and 13 of the power-of-attorney dated the 5th January, 1952, Srimati Parbati Devi had the power to sign the memorandum of appeal before the Income-tax Appellate Tribunal and there was no justification for the Appellate Tribunal to hold that Srimati Parbati Devi was not so empowered. Having perused the relevant clauses of the power-of-attorney dated the 5th January, 1952, we are of opinion that the contention put forward on behalf of the assessee must be accepted as correct and it must be held that the power is granted under the document to Srimati Parbati Devi to file an appeal before the Income-tax appellate Tribunal and aiso to sign the memorandum of appeal. Even assuming in favour of the Income-tax Department that the power-of-attorney did not enable Srimati Parbati Devi to sign the memorandum of appeal, we are still of opinion that the failure of the assessee to sign the memorandum of appeal was a mere irregularity and not an illegality, and the Income-tax Appellate Tribunal should have allowed the petition of the assessee filed on the 20th April, 1956, for amending the memorandum of appeal and affixing her signature thereto. Any irregularity of the assessee in not signing the original memorandum of appeal could be rectified by an amendment, and the amendment would take effect from the date the memorandum of appeal was originally filed A similar view has been expressed by tho Calcutta High Court in Sheonath Singh v. Commissioner of Income-tax, West Bengal 1958-33 ITR 591 : (AIR 1958 Cal 606), in which a memorandum of appeal, signed and verified only by the authorised representative and not by the assessee, was filed. Subsequently a second memorandum was filed in which the assessee had signed below the verification but only the authorised representative had signed below the grounds of appeal. Later on both the memoranda of appeal were signed at all places by the assessee. It was held by the Tribunal that as the memoranda filed before the due data were materially defective owing to the absence of the assessee's signature and were not brought to order within the period of limitation they could not be treated as proper memoranda at all and, therefore, dismissed the appeal. It was held in these circumstances by the Calcutta High Court that the absence of or defect in the signature of the appellant in the memorandum of anneal was not an illegality or fatal but only an irregularity which could be rectified by amendment the amendment taking effect from the date when the document had originally been filed. It was further held that the Tribunal was wrong in holding that the absence of the signature of the appellant at the proper places in the memorandum of appeal was a material defeat which prevented them from accepting the document as good. With regard to the analogous provisions of Order 6, Rule 14, there is authority for the view that the omission or failure on the part of the plaintiff to sign the plaint is a mere irregularity which can subsequently be rectified and the omission is not a vital defect. That is the view expressed by the Judicial Committee in Mohini Mohun Das v. Bungsi Budun Saha Das, ILR 17 Cal 580 and by the Madras High Court in Lodd Govindoss Krishnadas v. Muthiah Chetty, AIR 1925-Mad 660. For these reasons we are of opinion that in the facts and circumstances of this case the signature of Parbati Devi in the memorandum of appeal as duly constituted agent of the assessee was a valid signature and, in any event, in view of the petition filed by the assessee on the 20th April, 1956 removing the defect of want of her signature, there was a proper appeal presented before the Income-tax Appellate Tribunal and that appeal could not be dismissed on the ground that it was barred by time. Accordingly, we answer the first question referred by the Income-tax Appellate Tribunal to the High Court in favour of the assessee and against the Income-tax Department.

(3.) In view of our answer to the first question, the second question becomes academic and it is not necessary to furnish any answer to the second question.The assessee is entitled to costs of this reference. Hearing fee Rs. 200.00.