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TMI Blog1957 (8) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the 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 the 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 the 30th of September, 1954, was signed and verified by both Mr. Singh and his authorised representative and that of the 13th of October, 1954, was verified by him and signed both by the authorised representative and himself. 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in the prescribed form and shall be verified in the prescribed manner. The form has been prescribed by rule 22 of the Rules framed by the Central Board of Revenue in exercise of the power conferred by section 59 of the Act. The language of rule 22 is: An appeal under section 33 or 33B to the Appellate Tribunal shall be in the following form. And then the form is set out. The form begins with headings for various entries relating to the history of the proceeding and the address of the parties. Then, after providing a space for the relief claimed in the appeal, it directs that the grounds of appeal shall then be set out. Below the space provided for the ground of appeal appear the following entries: Signed. (Appellant.) Signed (Authorised representative, if any) Below the space thus provided for the signatures is the form for the verification. The form is in the first person singular and begins with the words: I, ..........., the appellant do hereby declare. Below, that recital is a space for the date of the verification and still lower down is the entry signed. Although against the word signed, it is not stated that the appellant is to sign it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule 17 clearly contemplated that a memorandum of appeal could be signed by an authorised representative and since there was no direction, as in the case of the form for an appeal to the Appellate Assistant Commissioner that the appellant himself was to sign the memorandum, a signature of the authorised representative would be sufficient in law. That argument does not appear to me to be tenable. It is true that the respective forms or entries provided for the signature of the appellant and the authorised representative are not connected by the conjunction and but, equally, they are not disconnected by the word or . There is also no clear provision, as is to be found in the Code of Civil Procedure, as to whether the memorandum should be signed by the appellant and his authorised representative or by the appellant or his representative. Still, however, it appears to me that since the form requires the memorandum to be always verified by the appellant himself and since there is a space provided for the signature of the appellant, it could not have been the intention of the framers of the form that an appellant, who would have to deal with the memorandum personally for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Act are, will appear both from section 61 of the Act and from rule 17, to which the learned counsel for the assessee himself referred. Section 61, which is the only section providing for the participation of authorised representatives in proceedings under the Act, only says that the assessee may attend by a person authorised by him in writing in this behalf . The function which can be performed by the authorised representative is thus only the function of attendance or appearance on behalf of the assessee. It is that function which is emphasised by rule 17 of the Appellate Tribunal Rules when it lays down that when a memorandum of appeal is signed by an authorised representative, the assessee shall append to the memorandum a document, authorising the representative to appear for him. The intention appears to be that if an assessee has an authorised representative and if the authorised representative signs the memorandum of appeal, then, in view of the functions of the authorised representative as contemplated by the Act, it must be presumed that the assessee intends to attend by him and, therefore, it is necessary that he should file along with the memorandum signed by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted, even with the amendments subsequently made whereby the appellant's signature at all the relevant places was supplied; and, secondly, that proper memoranda of appeal came into existence only on the 14th of December, 1954, when the period of limitation had long expired and those memoranda could be accepted only if the assessee applied for the acceptance of one of them under section 33(2A) of the Act and made out sufficient grounds for the delay in filing a proper appeal. The Tribunal's view thus was that the memoranda of appeal without the amendments were thoroughly bad and indeed nullities that the amendments made after the expiry of limitation were by themselves of no avail and that relief could only be given to the assessee under section 33(2A), for which he had not even applied. In my opinion, the view taken by the Tribunal is entirely wrong. To take the first ground for that view first, it has been expressed in the following words: The non-signature of the appellant at the proper places required by statute was material and we cannot admit an appeal, not properly signed at the proper time, that is within the period of limitation. Thus, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd caused the plaint or the memorandum to be placed before the court and if such intention appears clearly from the proved circumstances of the case, then any defect or omission to comply with any of the procedural rules regarding signature or verification is to be treated as a mere procedural defect which can be set right at any time by permitting an amendment of the document irrespective of the question of limitation. In such cases, there is no question of making any application for condonation of the delay on the basis that only when the defect is remedied does a proper plaint or a proper memorandum of appeal come into existence and if by that time period of limitation has expired, condonation of the delay in filing a proper plaint or a proper memorandum of appeal must be obtained from the court. The original plaint or memorandum of appeal being a valid document in spite of defects, there was a valid plaint or memorandum filed within limitation. I think it will be otiose to cite cases after the decision of the Privy Council to which I have already referred, but I might invite attention to a few. Long ago, in the case of Basdeo v. John Smidt [1900] I.L.R. 22 All. 55 the rule w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but governed by the same principle, is another line of cases where the legal practitioner who filed the plaint or a memorandum of appeal or an application for execution had no authority at all to act at the time he filed the document and the defect was not removed till after the expiry of limitation. In all such cases it was held that the defect was not a material defect, going to the validity of the plaint or the memorandum or the application or to the jurisdiction of the court to entertain the document, but it was only an irregularity which the court on a consideration of the circumstances, could itself direct to be removed at any time. Illustrations of that principle are to be found in the cases of Jagadeesh Chandra Dhabal Deb v. Satya Kinkar Shahana [1936] I.L.R. 63 Cal. 733 and Brojo Nath Surma v. Isswar Chundra Dutt [1892] I.L.R. 19 Cal. 482. The principles applicable to cases of this kind are discussed at great length and with much felicity of phrase in the decision of this court in Chhayemannessa Bibi v. Basirar Rahman [1910] I.L.R. 37 Cal. 399, which has almost become a locus classicus on the subject. The principles on which the court acts on such occasions were laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed, it would take effect from the date when the document had originally been filed. It was contended by Mr. Meyer that the assessee had never asked the Tribunal to exercise their inherent power of allowing the memoranda to be rectified or the power to accept the memoranda as good memoranda, in view of the fact that the defects had since been removed. I do not think that that contention has much force, because the assessee was asking the Tribunal to accept the memoranda as good memoranda. Secondly, all the facts were before the Tribunal and they clearly misled themselves in law by thinking that the initial defects in the memoranda were fatal, leaving them powerless to accept them and that they could accept them only as memoranda filed after the period of limitation had expired, provided grounds for condoning the delay had been made out. This view of the law that the only alternatives before them was either to reject the memoranda as bad or to accept them as good memoranda filed for the first time on the 14th of December, 1954, on sufficient cause for the delay having been made out was, in my view, clearly erroneous. The memoranda as originally filed were not nullities. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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