1986 (1) TMI 139 - AT - Income Tax

Summary

Issues:
- Dismissal of appeals by Commissioner (Appeals) due to forms not personally signed by partners
- Interpretation of clause (cc) of sub-rule (2) of rule 45 regarding signing of forms by constituted attorney
- Whether irregularity of not personally signing forms by partners is curable
- Rectification of defects in filing forms and condonation of delay

Analysis:
The judgment revolves around the dismissal of appeals for assessment years 1980-81 and 1981-82 by the Commissioner (Appeals) because the forms were not personally signed by any partner of the assessee-firm but by the constituted attorney. The assessee argued that under clause (cc) of sub-rule (2) of rule 45, the attorney could sign the forms and that any irregularity could be rectified by obtaining partner signatures. The Tribunal did not opine on the attorney's signing authority but held that the omission of partner signatures could be a curable irregularity. Citing a precedent, the Tribunal emphasized that the defect could be rectified, and the memo of appeal would be deemed lawful once corrected.

The Tribunal referenced a case where a similar defect was rectified by obtaining proper signatures, highlighting that the rule mandating specific signatories was of a mandatory nature. The Tribunal disagreed with the Commissioner (Appeals) for not following the principle of allowing rectification of defects, asserting that such power should have been exercised in this case. Additionally, the Tribunal rejected the Commissioner's view on the limitation period, stating that rectifying the defect would relate back to the original filing date, thus condoning any delay in filing.

Regarding a rectified memo of appeal signed by the managing partner after the limitation period, the Tribunal held that the rectification should be accepted as the memo would be deemed filed on the original date. The Tribunal emphasized that procedural rules should not impede justice and that the assessee should be given a reasonable opportunity to rectify any errors. Consequently, the appeals were treated as allowed for statistical purposes, emphasizing the importance of rectifying procedural defects to ensure a fair hearing on the merits.