JUDGMENT - PATEL J.N., J.:---Rule made returnable forthwith. Heard learned Counsel for the parties.

2. The appellants assesses have filed their return of Income for the year 1993-1994 on 27-10-1993 declaring a total income as nil. On being assessed the Assessment Officer passed an order of assessment dated 29-3-1996 determining the income at Rs. 6,09,000/- (I.T.A. No. 2/2000) and Rs. 5,38,444/- (I.T.A. No. 3/2000) and passed the assessment orders which were impugned by the appellants in the appeals filed before the Commissioner Income Tax under section 249 of the Income Tax Act. The same came to be dismissed. Being aggrieved by the said order the appellants then moved the Income Tax Tribunal, Nagpur, under section 253(1) of the Income Tax Act, 1961, by filing appeals in prescribed form No. 36 as provided under Rule 47(1) of the Income Tax Appellate Tribunal Rules, 1963 (for short the "said Rules"). Form No. 36 is required to be signed at three places by the appellants, one in front of the form below Item No. 12 and at two places on the reverse side. One of the signatures on the reverse side of the form is to be affixed below the 'verification'. The appellants did not sign 'verification' statement but the appellants have signed the form at two other places as per the requirement. On the appeals being presented it was placed before the Tribunal after being registered. When the Tribunal took up the appeals for admission, it was dismissed by passing the impugned order dated 16-5-2000.

3. The Tribunal observed that failure on part of the appellants in verifying the appeal is not a curable defect by placing reliance on various decisions. It was also held that neither the Tribunal nor the registry of the Tribunal is in any way mandatorily obliged to look into and search defect and bring it to the notice of the appellants or his authorised representatives requesting them to rectify the defects and thereafter proceed to admit and entertain the appeals in accordance with the law. It is thus not the legal duty of the Tribunal or registry of the Tribunal to point out flaws. Moreover, lack of verification and non-subscribing the signature in the statutory appeal forms, though mandated by law cannot constitute a defect or irregularity to be cured at the instance of this Tribunal or at the request of the registry of the Tribunal. This omission goes to the root of the matter and affects the jurisdiction of the Tribunal. Thus the appeals were treated as invalid and came to be dismissed.

4. The learned Counsel appearing for the appellants has drawn our attention to the Income Tax Appellate Tribunal Rules, 1963 which regulate the procedure of the Appellate Tribunal and procedure of the Benches and submitted that the Honourable Tribunal without giving an opportunity to the appellants to rectify the defect has dismissed the appeals.

5. Rule 4-A of the said Rules vests certain powers and functions on the Registrar of the Tribunal. Relevant portion of the rule reads as under:

"4-A. (1) the Registrar shall have.............

(2) Subject to any general or special order of the President, the Registrar shall have the following powers and duties

(i) ....................

(ii) ....................

(iii) to scrutinise all appeals and applications so received to find out whether they are in conformity with Rules;

(iv) to point out defects in such appeals and applications to the parties requiring them to rectify by affording reasonable opportunity and if within time so granted defects are not rectified, to obtain the orders of the Bench for the return of the appeals and applications."

6. In our opinion the learned Members of the Tribunal overlooked the procedural aspect of the matter by ignoring Rule 4-A(2)(iii) and (iv) of the said Rules. On receiving the appeals preferred by the appellants it was incumbent on the Registrar to have scrutinised the appeals and applications whether they are in conformity within the Rules and point out the defect in such applications requi

Click Here to Read the rest of this document