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TMI Blog1950 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... the Agricultural Income-tax Officer who had gone to Bankura stating inter alia that he had been advised that the return which he had submitted before under the advice of a Headmaster of a school was not a proper return, that there were many mistakes in the return and many things had been omitted and that, therefore, it was absolutely necessary for him to submit a a fresh return and praying for fifteen days' time, for doing so and also for a form of return. This petition was signed in vernacular as follows : --- " Sri Keshab Chandra Mandal x Ba : Sri Jugal Chandra, Mandal ". Below that was the signature of his pleader H. Nandi. With this petition was attached a vakalatnama signed in vernacular in the manner following : --- " Sri Keshab Chandra Mandal x Ba : Sri Jugal Chandra Mandal of Balya ". It will be noticed that in both the signatures, against the name of Sri Keshab Chandra Mandal there was a cross mark. The vakalatnama contained the following entry : --- " I hereby appoint on my behalf Srijukta Babu Hangsa Gopal Nandi, Pleader, to do all works in connection with this case and as I do not know to read and write I put in x mark in the presence of the undermentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court. The Appellate Tribunal by its order dated the 22nd April, 1948, referred the following question of law to the High Court : --- "Whether in the circumstances of this case, the declaration in the form of return signed by the illiterate assessee by the pen of his son should be treated as properly signed and a valid return." The reference came up before a Bench of the Calcutta High Court (G. N. Das, J., and R. P. Mookerjee, J.) who, for reasons stated in their judgment dated the 16th September, 1948, answered the question in the affirmative. The Commissioner thereupon applied to the High Court for a certificate under Section 64(2) of the Act which having been granted the appeal has now come up before us for final disposal. In this appeal we are only called upon to judge whether the answer given by the High Court to the question of law formulated by the Appellate Tribunal is well-founded. It is abundantly clear on the records that there was no physical contact between the assessee and the signature appearing on the return as filed on the 7th May, 1945, and the fact is referred to by the words " in the circumstances of this case " at the beginning of the question. Indeed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature intended the return of an individual assessee to be signed by himself, i.e., personally. Learned counsel referred us to a number of decisions both Indian and English, where personal signature had been held indispensable. There is no doubt that the true rule as laid down in judicial decisions and indeed as recognised by the High Court in the case before us is that unless a particular statute expressly or by necessary implication or intendment excludes the common law rule, the latter must prevail. It is, therefore, necessary in this case to examine the Act and the rules to ascertain whether there is any indication therein that the intention of the Legislature is to exclude the common law rule. Turning first to the Act, it will be found that by Section 2(14) the word " received " used with reference to the receipt of the agricultural income by a person has been defined to include receipt by an agent or servant on behalf of a principal or master respectively. If the Legislature intended that a signature by an agent would be permissible it could easily have defined the word " sign " so as to include the signature by an agent. Section 25(2) of the Act requires that if the Agri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wyer or accountant or agricultural income-tax practitioner. It should be noted that even under this section any and every agent cannot represent the assessee but only certain specified kinds of agents can do so. To summarise, the omission of a definition of the word "sign" as including a signature by an agent, the permission under Section 25 for production of evidence by an agent and under Sections 35 and 58 for attendance by an agent and the omission of any provision in the Act applying the provisions of the Code of Civil Procedure relating to the signing, and verification of pleadings to the signing and verification of the return while expressly adopting the provisions of that Code relating to the attendance and examination of witnesses, production of documents and issuing of commission for examination and for service of notices under Sections 41 and 60 respectively cannot be regarded as wholly without significance. The matter, however, does not rest there. Section 24 of the Act requires the Agiricultural Income-tax Officer to call for a return in the prescribed form and verified in the prescribed manner. Rule 11 of the Bengal Agricultural Income-tax Rules, 1944, framed under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative, if any, and allows such application to be presented by the applicant either in person or through such authorised representative. Rule 22 requires that where an application or memorandum of appeal is signed by an authorised representative, the latter must annex to it the writing constituting his authority and his acceptance of it. Under rule 25 an appeal to the Tribunal has to be presented in person or by an authorised representative and under rule 28 every such appeal has to be preferred in the form of a memorandum signed by the appellant and his authorised representative, if any, and verified by the appellant. Each of the forms, from Form 7 to Form 20, contains separate spaces for the signatures of the appellant or the applicant or the claimant as the case may be and the authorised representative, if any Form 23 which is notice of hearing of appeal under Section 36 requires the attendance of the appellant or respondent either in person or by an authorised representative. Rule 47 provides that, subject to certain special provisions, the provisions contained in Part II of the rules relating to the presentation, notices and bearing of an appeal before the Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant, or claimant is necessary. It has been seen that under the Act and/or the rules several acts can be done by or through the authorised representative, namely, production of documents, presentation of appeal or application and attendance in proceedings before the authorities. The expression "authorised representative" is defined in rule 2(a). It will be noticed that in each case the authorised representative has to be duly authorised in writing. Under rule 22 the authorised representative bar, to file the writing constituting big authority and big acceptance of it. If it were intended that the signature by an agent on a return or a memorandum of appeal or other application will suffice as the signature of the assessee or the appellant or the applicant or the claimant, there would certainly have been some rule for constitution of such agency in writing and for the filing of the writing constituting such agency and the agent's acceptance of it. If an agent for mere presentation of an appeal is expressly required by the rules to be duly authorised in writing and such writing has to be filed on record I cannot think that the Act or the rules contemplate or permit the employment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be for the Legislature to rectify this defect. Not to insist on personal signature on returns or appeals or applications will let in signature by agent not duly authorised in writing and without production of such writing. In that case the provisions for penalty for filing false returns may quite conceivably be difficult of application. The omission of a definition of the expression " sign " so as to include the signature of an agent, the presence of the provisions permitting only certain specified acts, other than signing, to be done by or through an authorised agent are significant and indicate that the intention of the Legislature is not to permit signature by an agent so as to exclude the common law rule referred to above. Turning now to the judicial decisions cited before us it will be found that Courts have insisted on personal signature even when there were not so many clear indications in the statutes under consiaeration in those cases as there are in the statute and the rule's before us. Thus in Monks v. Jackson which was a case under Section 1(3) of the Municipal Elections Act (38 and 39 Vic., c. 40) which required delivery of the nomination paper " by the candidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were held to indicate that the intention was to exclude that rule. This intention was gathered from the use of the word " himself " or " by him " or " under his hand " or " personally." It is needless to say that such an intention may also be gathered from the nature of the particular statute or inferred from the different provisions of the statute and the rules framed thereunder. As already stated, there are many indications in the Bengal Agricultural Income-tax Act, 1944, and the rules made thereunder evidencing an intention to exclude the common law rule in the matter of the signature of the assessee, appellant or applicant on the return, appeal or application. The High Court referred to the case of In the matter of Commissioner of Income-tax, C. P. & U. P. and sought to find support for its views from the circumstances that the Court in that case rejected the return not on the ground that it was bad because it was signed by an agent but on the ground that the power of attorney did not authorise the agent to sign it. It is quite clear that the Court in that case found it easier to decide the case on the latter ground than to enter upon a discussion of the first ground. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as properly signed and a valid return ". The High Court was not called upon to answer the question whether an income-tax return could be validly signed by an agent in the name of the principal ; on the other hand, the question as framed assumes that the return was signed by the illiterate assessee but that the pen affixing the signature was that of his son. The physical act of putting the mark was made by the pen or possibly by the hand of the son who was not the agent appointed by the father and was not otherwise authorised by him to sign for him. No evidence was led and there is nothing whatsoever on the record to establish that this illiterate assessee did not touch the pen or the hand of the son when the signature was affixed on the return. No precise definition of the word " signature " is given in the Indian Income-tax Act or in any other law. In the General Clauses Act there is no exhaustive definition of the word. It merely says what the word " signature " shall include. It includes the affixing of a mark. In India it is a well known practice that when the executant of a document is illiterate he simply touches the pen wherewith someone else signs his name for him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the document but I am afraid I cannot agree with him that in this case that has not happened. The question to a certain extent assumes the contact of the assessee with the pen of his son when it states that the illiterate assessee's signature was put with the pen of the son. Be that as it may, that circumstance has not been eliminated in the case and that being so, the question cannot be answered in the manner proposed by my learned brother. I am further of the opinion that the Income-tax Officers, should not while administering the law create unnecessary problems for the courts. In the present case if there was any doubt in the mind of the Income-tax Officer, he should have called upon the illiterate assessee to put his mark in his presence on the return and he should not have acted hastily in assessing him under the penal provisions of the Act. Ignorant and illiterate people who are not well versed with the law of income-tax should be dealt with more sympathetically than was done here. They should not be penalised in the manner that the present assessee was penalised.
In the result I would dismiss this appeal.
Appeal allowed.
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