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TMI Blog1988 (9) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... s he received share of income and interest income late from different sources. In his order and on reasons recorded by him, the AAC found that the penalty was not justified. He, therefore, cancelled the penalty order. Hence, this appeal by the Revenue. 4. The learned Departmental Representative has urged that the AAC erred in cancelling the penalty, referring to the various points noted by the ITO. It is submitted that the appeal by the Revenue may be allowed. 5. In his turn, the learned counsel for the assessee raised a preliminary objection that the appeal by the Revenue is not maintainable as in this appeal by the Revenue, the dead person was made a respondent. It is stated that late Jwalla Prasad Sikaria who had been made respondent in the present appeal died on 18th Jan., 1985 which fact was known to the ITO right from the start i.e. when the penalty proceedings were going on and the legal representative mentioned have been impleaded. It is submitted also that the legal representative did comply with the requirements and in fact went up in appeal before the AAC against the penalty orders. It is submitted that these facts were very much known to the ITO who was aware of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble High Court abated for non-substitution of legal representative. On the facts of that case, it was held that there can be no abatement of a reference on account of the death of the assessee and non-substitution of the legal representatives on record. The Hon'ble High Court was dealing with the requirement of the Order XXII of the CPC, which was held to have no application to the facts of that case and that there was no abatement. It is also pointed out by the learned counsel that the appeal before the AAC was preferred by the legal heirs and the ITO was aware of that position particularly when the AAC also passed the order mentioning the above two persons as legal heirs of the deceased. It is submitted that inspite of that basis fact, the ITO had made a deceased person as a respondent and, therefore, the appeal by the Revenue requires to be declared nullity and be dismissed as such. 7. On the other hand, the learned Departmental Representative submits that the appeal by the Revenue was very much valid as, in fact, the above two persons are the legal heirs of the deceased keeping in view the provisions of s. 159 as well as r. 12 of the IT Tribunal s rule. It is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d both the sides at length and we have gone through the various papers and decisions cited before us for our consideration. At the out-set, it may be mentioned that the right of appeal is a substantive right and is a creature of the statute as held by the Hon'ble Supreme Court in the case of Mela Ram and Sons vs. CIT (1956) 29 ITR 607 at 614 (SC). In the case of Unique Motors and General Insurance CO. AIR 1970 Del 90 it was held that the right of appeal is a valuable right and its deprivation is not to be likely assumed. 9. In the present case before us, the appellant is the ITO A-Ward, Spl. Circle, Gauhati and the respondent has been shown as late Jwalla Prasad Sikaria, Sikaria House, F.B. Gauhati, as per the memorandum given in Form No. 36. In a departmental appeal it cannot be said that the ITO is the appellant as, in fact, the ITO has merely filed an appeal at the direction and command of the CIT concerned, as the CIT alone has got the right of appeal before the income-tax Tribunal as contemplated by s. 253(2) of the IT Act. In the case of CIT vs. Anil Kumar Roy Choudhry Anr.(1967) 66 ITR 367(SC), the Hon'ble Supreme Court while dealing with s. 33(2) of 1922 Act, held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present appeal before us would not bring about or initiate any fresh proceedings as the proceedings were already on right from the beginning. Actually, the ITO had already impleaded these two persons as legal heirs of the deceased ab initio. Therefore, this is not a case where substitution of legal heirs in place of the deceased respondent is called for as sought to be made out by the learned counsel for the assessees. The authorities cited on behalf of the assessee are considered, but we find that the facts of the present case before us are totally distinguishable. The case of Smt. Ganga Devi Saraf was a case of substitution sought to be made by the GTO in the appeal before the IT Tribunal when it has been shown the dead person as a respondent in view of the fact that the AAC had passed the order in the name of the deceased person. The Tribunal disallowed the claim for substitution of the legal heirs in that decided case and has treated the appeal by the Revenue as nullity. But as indicated above, in the appeal before us by the Revenue no substitution is called for as the legal heirs were already impleaded and the only short coming was that the name of the legal heirs were not me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnature of the appellant in the memo of appeal is not an illegality or fatal but only an irregularity which could be rectified by amendment which will take effect from the date when the document had originally been filed. For this proposition, we may refer to the decisions as reported in Sheonath Singh vs. CIT (1958) 33 ITR 591 (Cal), Addl. CIT vs. K. Padmalochan Sahu (1974) 95 ITR 113 (Ori). Similar view was expressed by the Hon'ble Patna High Court in the case of Gouri Kumar Devi vs. CIT (1959) 37 ITR 220 (Pat). In the case of Gian Chand Vir Bhan vs. CIT (1960) 39 ITR 414 (Punj), it was held that signing with an incorrect status or capacity may at the worst, deemed to be a misdescription for which a right cannot be taken away. But a memo of appeal which is not in a proper form may be rejected by the Tribunal under s. 12 but it has prescribed that the Tribunal may return a defective appeal for being amended within the time allowed and the so amended appeal may be represented and considered. This is the view expressed by the Hon'ble Allahabad High Court in the case of Behari Lal Laximinarayan vs. ITO (1960) 39 ITR 649 (All). The same Allahabad High Court in the case of Chhotey Lal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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