1973 (9) TMI 4 - HC - Income Tax

Whether in the presence of the karta of the Hindu undivided family, it is lawful for a member of the Hindu undivided family to sign and verify the memorandum of appeal before the first appellate authority and, if so, whether the said appeal so presented suffers from a curable irregularity or is illegal - When memorandum of appeal by HUF is signed not by a karta but by another, whether it is illegal and also whether it can be allowed to be rectified

Summary

Issues:
1. Whether a member of a Hindu undivided family can sign and verify the memorandum of appeal in the presence of the karta of the family?
2. Whether non-compliance with the rule mandating the karta of the family to sign the memorandum of appeal renders the appeal a nullity or can be rectified?

Analysis:
1. The High Court of Orissa was tasked with determining whether a member of a Hindu undivided family could sign and verify the memorandum of appeal in the presence of the karta of the family. The case involved an appeal filed by an assessee, a Hindu undivided family, where the appeal petition was initially signed by an authorized representative rather than a member of the joint family. The court referred to Rule 45(2)(b) of the Income-tax Rules, 1962, which unequivocally states that in the case of a Hindu undivided family, the memorandum of appeal should be signed by the karta of the family. The subsequent rectification by having the son sign the appeal did not meet the requirements of the rule since the son was not the karta of the family. The court emphasized that the rule is mandatory, and non-compliance with it renders the appeal defective.

2. The court delved into whether the non-compliance with the rule mandating the karta of the family to sign the memorandum of appeal would render the appeal a nullity or if the defect could be rectified. Citing previous judgments, the court highlighted that in cases of defects in signing appeals, opportunities should be given for rectification before dismissing the appeal. The court referred to decisions from the Calcutta High Court and emphasized that the law should allow for rectification of such defects before deeming the appeal as invalid. The court noted that both the Appellate Assistant Commissioner and the Appellate Tribunal agreed that the memorandum of appeal should have been signed by the karta of the family, and the disagreement between them was on the exercise of discretion in allowing further opportunities for rectification. Ultimately, the court concluded that the defect in signing the appeal was an illegality but should be allowed to be rectified by providing the assessee with the opportunity to comply with the rule.

In conclusion, the High Court of Orissa clarified the mandatory requirement for the karta of a Hindu undivided family to sign the memorandum of appeal and emphasized the need for opportunities to rectify such defects before dismissing the appeal. The court's decision highlighted the importance of following procedural rules while allowing for rectification of errors to uphold the principles of justice.