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HIGH COURT OF CALCUTTA
CHAKRABARTI, B. K. GUHA
SHEONATH SINGH - Appellant
Versus
COMMISSIONER OF INCOME-TAX, WEST BENGAL - Respondent
Income-Tax Ref. 29 Of 1955
Decided On : AUGUST 22, 1957
INCOME TAX - APPEAL TO APPELLATE TRIBUNAL - MEMORANDUM OF APPEAL - SIGNATURE OF APPELLANT - WHETHER MANDATORY OR DIRECTORY - POWER OF TRIBUNAL TO ACCEPT MEMORANDUM WITH DEFECTS - LIMITATION.
Fact of the Case:
The assessee filed two memoranda of appeal before the Appellate Tribunal, one on 30th September, 1954, and the other on 13th October, 1954. The first memorandum was neither signed nor verified by the assessee, but was signed and verified by an authorized representative. The second memorandum was verified by the assessee, but was signed only by the authorized representative. On 14th December, 1954, the assessee signed both the memoranda at all the places where the signature of the appellant was required. The Tribunal refused to admit the appeal on the ground that the absence of the appellant's signature in the memorandum of appeal was a material defect and that since the memorandum had not been brought to order within the period of limitation, it could not in law be treated as a proper memorandum at all.
Finding of the Court:
The Court held that the rule requiring the memorandum of appeal to be signed by the appellant was directory and not mandatory. The absence of the appellant's signature on the memorandum of appeal was not a material defect which affected the jurisdiction of the Tribunal to entertain the memoranda. The Tribunal had power to accept the memoranda in the condition in which they found them at the time they were hearing the appeal, provided they were satisfied that the assessee had in fact intended the appeal to be placed before them and had done so through the authorized representative, although he had not himself signed the plaint.
Issues: Whether the rule requiring the memorandum of appeal to be signed by the appellant was mandatory or directory.
Ratio Decidendi: The Court held that the rule requiring the memorandum of appeal to be signed by the appellant was directory and not mandatory. The Court relied on the following principles: * The rule as to the signature of a plaint or a memorandum of appeal by the plaintiff or the appellant, although expressed in the relevant statute in the language of a mandatory provision, has never been regarded as mandatory, but the rule being a procedural rule has been treated as only directory, non-compliance or defective compliance therewith being held to be irregularities, curable by the Court at its own instance and not illegalities affecting the jurisdiction of the Court. * The proper function of the Court is not in such cases to impose discipline, but to decide the points of controversy between the parties, if it appeared that the parties really desired to bring up the matter before the Court for adjudication. * Procedure is after all the machinery of the law, the channel and means whereby law was administered and justice reached; and that procedure would be strangely departing from its proper office, when, in place of facilitating, it was permitted to obstruct and even extinguish legal rights and was thus made to govern where it ought to subserve.
Final Decision: The Court held that the Tribunal was not justified in refusing to admit the appeal on the foot of the two memoranda of appeal filed before them or either of them on the grounds given in the appellate order and particularly in the view that the defects were material defects which affected their jurisdiction to entertain the memoranda.
( 1 ) ONE Mr. Sheo Nath Singh objected to the adding back of a sum of Rs. 14,000/- in his assessment for the year 1944-45 and having failed to obtain complete relief from the Appellate Assistant Commissioner, became desirous of preferring an appeal to the Appellate Tribunal. The order of the Appellate Assistant Commissioner was passed on the 30th of July, 1954 and a copy of it reached Mr. Singh on 5th of August following. Making allowance for certain holidays, the last day for filing the appeal before the Appellate Tribunal would be 13th of October, 1954. On 30th of September, 1954, a memorandum of appeal was filed in the office of the Tribunal, but it was neither signed nor verified by Mr. Singh. It was both signed and verified by an authorised representative, one Mr. S. K. Ray, and along with the memorandum was filed a document of authority. The Assistant Registrar of the Tribunal pointed out that the memorandum had not been signed by the appellant, whereupon the authorised representative said that the appellant was in England at the time and that a revised memorandum of appeal would be filed as soon as he returned. Subsequently, on 13th of October, 1954, a second memorandum was filed which was verified by Mr. Singh and signed below the verification, but not further signed below the grounds of appeal, as set out in the statutory form. There, it was again signed by the authorised representative, Mr. S. K. Ray. Still later on 14th of December, 1954 Mr. Singh signed both the memoranda at all the places where the signature of the appellant was required. As the memoranda stood after these further signatures, that of 30th of September, 1954, was signed and verified by both Mr. Singh and his authorised representative and that of 13th of October, 1954, was verified by him and signed both by the authorised representative and himself.
( 2 ) WHEN the appeal came up for hearing, a preliminary objection was taken on behalf of the Department that the memorandum of appeal was not in order and that by it no appeal before the Tribunal had been filed. The authorised representative explained to the Tribunal the circumstances in which the memoranda, as originally filed, could not contain, in one case, neither the signature, nor the verification of the appellant and, in the other case, his signature and contended that the memoranda might be accepted. The Tribunal did not agree. They held that the absence of the appellant's signature in the memorandum of appeal was a material defect and that since the memorandum had not been brought to order within the period of limitation, it could not in law be treated as a proper memorandum at all. In their order, the Tribunal said that even when the appellant was made aware of the defect, no prayer was made on his behalf for the condonation of the delay on the ground of there having been sufficient reason for filing the appeal in a defective form. On those two grounds, they refused to admit the appeal and made an order dismissing it.
( 3 ) I may pause here for pointing out that the Tribunal do not seem to have had any clear notion of what they were doing. If the appeal was no appeal at all, there could hardly be any question of admitting it, the only question being one of receiving it and directing it to be registered. But assuming that by saying that they were refusing to admit the appeal, they meant that they were rejecting the memorandum of appeal, the further order made by them dismissing the appeal can in no view be supported. If an appeal is no appeal at all, there can be nothing to dismiss,
( 4 ) THE assessee was dissatisfied with the Tribunal's order and required them to refer the matter to this Court for its opinion. Accordingly, the Tribunal has referred to this Court the following question of law :"whether on the facts and in the circumstances of this case the Tribunal was justified in refusing to admit the appeal based on the memorandum of 30th September, 1954 and 13th Octob
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