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TMI Blog1986 (9) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... B) Shri Campbell signed the Memorandum of Appeal filed against the assessment order in his capacity as such Attorney. This did not meet with the requirement of r. 45 r/w s. 249 of the Act. The assessee was, therefore, asked to show cause why its appeal should not be dismissed in limine. (C) The assessee s case was that Shri Campbell could act on behalf of the assessee as its attorney and hence could sign the memorandum of appeal. In any case, the defect was not fatal to the appeal. But this argument had no substance. (D) the assessee filed its return in the status of AOP. There being more than one trustee in the case of assessee. r. 45(E) applied. That rule required the Memorandum of Appeal to be signed either by one of the trustees or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and to act otherwise in the matter as the said attorney shall be advised or think proper." 4. Sec. 249 requires that an appeal to the Commissioner(A) shall be in the prescribed form and shall be verified in the prescribed manner. The relevant rule is r. 45. Rule 45(1) stipulates that the appeal shall be in Form No. 35. There is no dispute here that the "Memorandum of Appeal was in the prescribed form". Rule 45(2) carries various stipulations relating to different kinds of assessees. What is relevant for the dispute before us is r. 45(2)(e). This reads as under: "452. The form of appeal prescribed by sub-rule 1. the grounds of appeal and the form of verification appended thereto shall be signed: (e) in the case of any other associati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee himself and not by his agent. But in this very decision, the Court observed that when the statute pemits signature by an agent, the writing of the name of the principal by the agent is regarded as the signature of the principal himself. In other words, the relevant question is whether the Statute and the Rule therein permit the operation of the common law rule of qui facit per alium facit per se. Hence this decision does not come in the way of accepting the assessee s claim here. 5. In Sheonath Singh, it was held that the Memorandum of Appeal before the Tribunal must always be singed and verified by the appellant himself and if there be an authorised representative it should also be signed by him, The Court took, into account s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document had originally been filed. The Court, therefore, found the Tribunal to be wrong in holding that the appeal had to be dismissed in limine. Here again the decision turned on a reading of s. 61 of the old Act of 1922 r/w r. 22 made thereunder as also r. 7 of the Tribunal Rules, 1946. Hence this decision does not come in the way of accepting the assessee s claim if it meets the requirements of r. 45 (2)(e) in the light of s. 2(35) referred to above. The result is that we find no valid reason given by the commissioner(A) for dismissing the appeal at the threshold. We vacate his order and restore the appeal to his file for disposal afresh on merits after giving the assessee a reasonable opportunity of being heard. 6. The assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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