Commissioner Of Agricultural Income Tax, Bengal vs Keshab Chandra Mandal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1950 Supreme(SC) 16

SUPREME COURT OF INDIA
9th May 1950
FAZL ALI, PATANJALI SASTRI, MAHAJAN, B.K. MUKHERJEA AND S.R. DAS, JJ.
Commissioner of Agricultural Income-tax, West Bengal - Appellant
Versus
Keshab Chandra Mandal Respondent.
Appeal No. 88 of 1949.
Advocates appeared
Shri K.P. Khaitan, Senior Advocate, Supreme Court, (Shri B. Sen, Advocate, Supreme Court, with him) instructed by P.K. Bose, Agent - For Appellant.

Advocates:
B.SEN, K.P.KHAITAN, P.K.BOSH

Headnote:Bengal Agricultural Income-tax Act, 1944 (Bengal Act IV of 1944), Ss. 24, 57-Bengal Agricultural Income Tax Rules, 1944 framed under section 57 of the Act-Rule II, Form No. 5.-Return under S. 24- Declaration signed by illiterate assessee by the pen of his son-if properly signed and valid.
       Under section 63( I) of the Bengal Agricultural Income-tax Act, 1944 (Bengal Act IV of 1944) the following questio!l of law was referred to the High Court :
       Whether in the circumstances of this case, 1 the declaration in the form of return signed by the illiterate assessee by the pen of his son should be treated as properly signed and a valid return."
       The High Court answered the question in the affirmative. The Commissioner thereupon applied to the High Court for a certificate under section 64(2) of the Act which having been granted there was an appeal to the Supreme Court.
       Held (reversing the judgment of the High Court)2: (per Fazl Ali, Patanjali Sastri, Mukherjea and Dass JJ ; Mahajan J. dissenting) : The
       1. In this case a return of an illiterate assessee was signed in the vernacular as follows:
       Sri Keshab Chandra MandaI Ba : Sri Jugal Chandra MandaI" the latter being the son of the assessee.
       2. Reported as 53 C.W.N. 744. provisions of the Bengal Agricultural Income-tax Act, 1944, and the Rules framed thereunder indicate an intention to exclude the common law rule qui facit per alium facit per. se in the matter of affixing signature to the return of income made by an assessee who was an individuaI.1 It was abundantly clear on the records that there was no physical contact between the assessee and the signature appearing on the return. The return therefore was not properly signed and was not a valid return.
       Per Mahajan J.: The question referred was whether the return "signed by the illiterate assessee with the pen of his son" was valid; it mu;;t be assumed that there was such contact, and as there was nothing whatsoever on the record to establish that the assessee did not touch the pen or the hand of the Son when the signature was affixed, the High Court rightly answered the question in the affirmative.

Judgment

Das J.- There is no serious dispute as to the facts leading up to this appeal. They are shortly as follows.:

2. In response to a notice issued under S.24(2), Bengal Agricultural Income-tax Act, 1944, the assessee, who is the respondent before us, submitted a return showing his total agricultural income for the assessment year 1944-45 to be Rs. 835. This return is dated 3rd April 1945 and just below the declaration appears the following writing in vernacular: "Sri Keshab Chandra Mandal." On 18th April 1945, the Agricultural Income-tax Officer noted on the order sheet that the case would be taken up at Bankura Dak Bungalow on 6th May 1945 and directed the office to inform the party to appear with all settlement records, vouchers etc. On 6th May 1945, the assessee filed a petition before the Agricultural Income-tax Officer who had gone to Bankura stating inter alia that he had been advised that the return which he had submitted before under the advice of a Headmaster of a school was not a proper return that there were many mistakes in the return and many things had been omitted and that, therefore, it was absolutely necessary for him to submit a fresh return and praying for 15 days time for doing so and also for a form of return. This petition was signed in vernacular as follows: "Sri Keshab Chandra Mandal x Ba: Sri Jugal Chandra Mandal," Below that was the signature of his pleader H. Nandi. With this petition was attached a Vakalatnama signed in vernacular in the manner following : Sri Keshab Chandra Mandal x Ba: Sri Jugal Chandra Mandal of Balya." It will be noticed that in both the signatures, against the name of Sri Keshab Chandra Mandal there was a cross mark. The Vakalatnama contained the following entry : "I hereby appoint on my behalf Srijukta Babu Hangsa Gopal Nandi, Pleader, to do all works in connection with this case and as I do not know to read and write I put in x mark in the presence of the under mentioned person, as a token thereof."

3. His son Sri Jugal Chandra Mandal attested the cross mark in the Vakalatnama

4. On receipt of this petition the Agricultural Income-tax Officer allowed time for one day and fixed the case for 7th May 1945 at 10 A.M. The assessee was directed to submit a fresh return and to produce account books and other necessary papers. It was also stated in the order sheet that if the assessee failed to comply with the order, assessment would be made under S. 25 (5) of the Act.

5. On 7th May 1945 the assessee did not appear personally. His son Jugal Chandra Mandal appeared with pleader Babu Hangsa Gopal Nandi. The son, Jugal Chandra Mandal, had not brought any letter of authority from the assessee. A return was submitted which was signed in vernacular as follows : "Sri Keshab Chandra Mandal Ba : Sri Jugal Chandra Mandal." It will be noticed that in this last signature there was no cross mark. 5a. The Agricultural Income-tax Officer stated in his assessment order as follows ; "A fresh return is submitted today. A remarkable difference is noticeable between the two returns. First return shows total agricultural income Rs. 835 whereas the revised or the fresh one shows an income of Rs. 1,077-12-6. This is really strange. The first one appears to have been signed by the assessee himself but the second one has been signed by Jugal his son for the assessee. Under the circumstances, I can put no reliance on any of these returns. I do not make any assessment based on these returns."

6. The Agricultural Income-tax Officer there after immediately proceeded with the assessment and assessed Rs. 4,968-12 -1 as the assessable income.

7. The assessee preferred an appeal from this order to the Assistant Commissioner, Agricultural Income-tax, Bengal. The Assistant Commissioner by his order dated 14th August 1945 dismissed the appeal and confirmed the assessment under S. 35 (4) (a) (i).

8. The assessee thereupon preferred a further appeal before the Income-tax Appellate Tribunal. The Income-tax Appell

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