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TMI Blog2005 (3) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... te of its filing and even subsequent thereto, as the appeal admittedly was filed within the period of limitation. X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of the Income-tax Act and presented as many as 12 questions before the Tribunal. The Tribunal vide its order dated April 2,1983 referred the following 3 questions to this court: "1. Whether, on the facts and circumstances of the case, the Tribunal is right in law in holding that an opportunity for curing a defect would carry meaning when the defect could have been cured on the day when the defect occurred? 2. Whether, on the facts and circumstances of the case, the Tribunal is right in law in holding that a procedural defect could be cured ex post facto only if it could have been cured on the day it occurred? 3. Whether the Tribunal was justified in law in holding that the appeal filed on October 23,1981 before the Commissioner of Income-tax (Appeals) signed by the professional representative of the assessee liable to be declared incompetent?" The answer to the questions referred by the Tribunal, to this court, which in fact, to a great extent, are interdependent, revolves around the interpretation of the provisions of rule 45, as it existed in the statute for the relevant year 1978-79. The same reads as under:- "45.(1) An appeal to the Appellate Assistant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etent person to sign the verification appended to the appeal. In the case of a firm it has to be signed by the managing partner and if the managing partner is not available to sign and verify the return, or where there is no managing partner, by any partner, of course with the exception of the partner being a minor. The appeal before the Commissioner (Appeals) has to be filed in Form No. 35, Appendix II, of the Income-tax Rules, 1962, as applicable at the relevant point of time. In accordance with the prescribed form, the appeal is to be signed by the appellant and the verification also is to be done by the same person. It can be noticed for the purposes of reference that the verification of the memorandum of appeal as prescribed in the form states "the appellant do hereby declare that what is stated above is true to the best of knowledge and belief". This would indicate that the facts stated in the memorandum of appeal are to be correct as per the information and belief, obviously relatable to the records and not to the personal knowledge of the appellant. This would be of some significance, particularly while examining the matter in regard to the rule being absolutely mandatory i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance related to a substantive provision and had caused prejudice to the other party and may have the effect of taking away a settled right. Law relating to procedure may always not prove fatal to the proceedings initiated by the assessee and it would be in the interest of justice, fair and equitable to provide an opportunity to the assessee to rectify the irregularity committed in regard to compliance with the procedural rules. Unless, the non-compliance with the procedure is of such a nature that it necessarily creates a bar or takes away a substantive right vested in the other side, where the appeal is filed in accordance with the form but is only signed by an authorised representative and not by a specified person under rule 45 of the Rules, thereupon the appellant should be granted an opportunity to correct this error rather than dismiss the appeal as not maintainable, particularly when the appeal is otherwise complete in all respects and has been filed within the prescribed period of limitation. At this stage, it may be appropriate to refer to some provisions of other 13 procedural laws mainly the Code of Civil Procedure. There is an obligation upon the plaintiff to sign and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court held that it could be treated as a fresh plaint and the matter proceeded in accordance with law. Reference can also be made to a case under the Court Fees Act (7 of 1870) wherein it was held that even if the court is of the opinion that the plaintiff is liable to pay ad valorem court fee of a higher value, than affixed on the plaint, even then, demand of justice would be to grant an opportunity to the person to make the deficiency good, rather than reject the plaint. In the case of Anil Rishi v. Gurbaksh Singh, AIR 1999 P & H 121, it was held as under: "Having come to this conclusion that the plaintiff respondent herein is liable to pay the ad valorem court fee, the necessary corollary thereof is whether the plaintiff would be entitled to pay the requisite court fee or the plaint is liable to be rejected. It is a settled principle of law that wherever or whenever the court comes to a conclusion that plaintiff is liable to pay court fee larger than the court fee, affixed by the plaintiff, it must grant time to the plaintiff to make up deficiency in court rather than rejecting the plaint right at the threshold for payment of inadequate court fee." In a case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igned by a duly authorised representative, i.e., the chartered accountant who had been pursuing the matter on behalf of the assessee and had filed his authority before the Assessing Officer. The Commissioner of Income-tax (Appeals) was in continuation of the earlier proceedings as it was an appeal against an order of assessment where the said authorised representative was fully competent to represent the case of the assessee and bind the assessee by his acts and deeds. The order of assessment was made on September 25, 1981, the appeal was filed on October 23, 1981 duly signed by the authorised representative which in turn was dismissed on October 26, 1981. We may only notice here for the purposes of proper appreciation of facts and the law applicable thereto that the assessee had also filed another appeal which was again dismissed by the Commissioner of Income-tax (Appeals) as well as by the Tribunal on April 2, 1983 on the ground of limitation and that the earlier order of the Assessing Officer had merged in the order of the Commissioner of Income-tax. This order itself is sub judice before us in I.T.R. 480/83. In support of the contention that such a defect, if at all, should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a material defect which prevented them from accepting the document as good and that although the defects had subsequently been removed the period of limitation having meanwhile expired the removal was of no assistance to the assessee." Learned counsel appearing for the respondent relied upon a judgment of this court in the case of CIT v. Eurasia Publishing House P. Ltd. [1998] 232 ITR 381 and also in Mela Ram and Sons v. CIT [1956] 29 ITR 607 (SC) to contend that the doctrine of merger would be applicable to I.T.R. No. 480/83 and as such the present reference should also be dismissed. We find no merit in this contention inasmuch as I.T.R. 465/83 which is the order first in point of time and has to be decided on its merits or demerits. Firstly, the doctrine of merger as explained in the said judgment would hardly be applicable to the present case, even on the facts. We may notice here that in that very judgment of CIT v. Eurasia Publishing House P. Ltd. [1998] 232 ITR 381 (Delhi), the court even clearly stated the principle that a mistake which is patent and obvious can be corrected and the doctrine of merger does not apply where the appeal is dismissed on the ground of default, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curable, would be a fair and just interpretation of the relevant rule. From the above discussion of law, particularly, keeping in view the facts and circumstances of the present case, we have no hesitation in answering the questions referred, by stating that the irregularity committed by the assessee was curable and could be rectified on the date of its filing and even subsequent thereto, as the appeal admittedly was filed within the period of limitation. In view of our above discussion, I.T.R. No. 465/83 is answered in the above terms and consequently, we set aside the order passed by the Income-tax Appellate Tribunal dated July 19, 1982, as well as the order passed by the Commissioner of Income-tax dated October 26, 1981. The appeal filed by the assessee is restored for hearing to the Commissioner of Income-tax (Appeals) who shall proceed with the matter in accordance with law. The inevitable result of our above direction is that the orders passed by the Income-tax Appellate Tribunal as well as the Commissioner of Income-tax (Appeals) in the above I.T.Rs. are liable to be set aside and we hereby remand the matter to the Commissioner of Income-tax (Appeals). Parties to bear the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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