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TMI Blog1999 (6) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... nd justice without appreciating the facts and circumstances of the case. 3. The learned CIT(A) erred in law and facts in not accepting that general power of attorney, which was duly registered on 18th March, 1997, in the Government Sub Registrar's office, empowered Sh. Y.P. Duggal, his father, to deal with Government departments like railways and post office was simply illustrating the Government departments and not excluding others. The language used being "Gurmukhi", the official State language of Punjab and the power of attorney being written by a vernacular deed writer had to be read with judicial discretion and not to be simply rejected without due diligence on any arbitrary notion or whim or caprice of the learned CIT(A). 4. The learned CIT(A) erred in law and on facts in not granting a simple adjournment for 23rd June, 1998, when the counsel of the assessee was in Calcutta on professional assignment. 5. The appellant craves to be allowed to amend, delete or add any other ground(s) of appeal before Your Honours during the course of hearing of this appeal." 2. The learned CIT(A) has decided all the appeals in a common consolidated order because common issue is invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refused to accommodate the appellant further and the learned CIT(A) took note of the written submissions filed on behalf of Sh. Yash Pal Duggal, and discussed the merit of the submissions. The discussion and the finding of the learned CIT(A) are discussed in para 2 of the order which are reproduced as follows: "In the written reply dt. 27th May, 1998, it has been argued that Sh. Anil Duggal had given a power of attorney to Sh. Yash Pal as Sh. Anil Duggal was not in India. The appellant has also pointed out to the provisions of s. 140 of the IT Act as well as sub-r. (3) of r. 45 of the IT Rules, as reproduced below: Secondly, Your Honour's kind reference is invited to s. 140(a) where even the return of income can be verified by some person duly authorised by him where the individual is absent from India. Under the old Act, the lacunae and the difficulties like those which arose in CIT vs. Keshab Chandra Mandal (1950) 18 ITR 569 (SC) and Ravula Subba Rao vs. CIT do not arise now as the same has been remedied by the new s. 140 of the IT Act, 1961. Thirdly, Form 35 is to be signed as prescribed by sub-r. (2) of r. 45 of the IT Rules by the 'the person who is authorised to sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself or got it cultivated from tenant. And to receive rent in kind or Chokota from the tenant to issue them receipt, to evict or settle tenant to receive claim of relief of any kind in cash or cheque or produce. To prosecute or defend all cases of civil, revenue, criminal and other against me by the others or against the others by me. To appoint advocate, to file written statement/reply to appoint special attorney, to file the plaint, application, reply to the application of every kind and to compromise, to give statement, to produce evidence. To sign and execute every kind of documents, to receive and deposit amount of every kind, to receive cheque and withdraw amount, to appear, to prosecute and defend in the departments of canal, electricity board, railway, post office, forest, consolidation and other Departments. To prosecute and defend cases from the trial Court upto the High Court, to execute the decree, to receive decree amount, to get possession. My abovesaid attorney has right to dispose of my movable or immovable properties by mortgage, sale, gift, exchange, mortgage by title deed, like me. All acts, deeds and things done by my said attorney shall be construed as acts, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in Form No. 36 and where the appeal is made by the assessee, the form of appeal, the grounds of appeal and the form of verification appended thereto shall be signed by the person specified in sub-r. (2) of r. 45. (2) A memorandum of cross-objections under sub-s. (4) of s. 253 of the Tribunal shall be made in Form No. 36A and where the memorandum of cross-objection, is made by the assessee, the form of memorandum of cross objections, the grounds of cross-objections and the form of verification appended thereto shall be signed by the person specified in sub-r. (2) of r. 45." After going through sub-r. (2) of r. 47, it is found that the procedure of verification is mentioned to be governed by sub-r. (2) of r. 45. Sub-r. (2) of r. 45 prescribes that the appeal and grounds of appeal including verification appended to the grounds of appeal relating to the assessee shall be signed and verified by a person who is authorised to sign return of income under s. 140(a) of the IT Act, 1961. 9. It is very important to take note of s. 246 which gives power to the assessee to file an appeal in case he is aggrieved against the order passed by the AO. The section squarely gives power to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y unavoidable reason such managing director is not able to sign and verify the return, can any other director of the company sign and verify the return. In this case, the return which was originally filed had been verified by one Niranjan Kanodia, general manager of the assessee-company. Since this verification was not in accordance with the provisions of s. 140(c) of the Act, the ITO addressed a letter dt. 28th Feb., 1979, to the managing director of the assessee-company drawing his attention to the provisions of s. 140(c). He further pointed out that in case the managing director was unable to sign the return due to any unavoidable reason the return of income could be signed by another director. In the said letter, the ITO requested the managing director of the company to let him know whether he was prevented from signing the verification on 14th Feb., 1978, due to any unavoidable reason. He further pointed out that if there was no such cause, the return of income would be invalid and in that event a duly signed and verified return should be filed." 12. If one will go through the submissions and facts on record, it is quite evident that power of attorney given by Sh. Anil Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of an application made by one Hariprasada Rao before the ITO for the renewal of the registration of a firm composed of himself and his brother Rao Bahadur Ravula Subba Rao. The application was rejected by the ITO on the ground that it was not signed by both the partners personally as required by r. 6 of the Rules made under s. 59, IT Act, 1922, which provides "any firm to whom a certificate of registration has been granted under r. 4 may apply to the ITO to have the certificate of registration renewed for a subsequent year. Such application shall be signed personally by all the partners (not being minors) of the firm, or where the application is made after the dissolution of the firm, by all persons (not being minors) who were partners in the firm immediately before dissolution and by the legal representatives of any such person who is deceased and accompanied by a certificate in the form set out below.' The assessee contended that as the other partner, Ravula Subba Rao had gone on a long pilgrimage, he could not sign the application for renewal of the certificate of registration and that, as Hariprasad Rao held a general power of attorney from Ravula Subba Rao, his signature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly in the affirmative. The learned Advocate General wished to raise the question that rr. 2 and 6 are ultra vires the rule making authority, the Central Board of Revenue. The question has not been referred to us and we express no opinion upon it. The assessee will pay Rs. 250 for costs of the CIT." The Hon'ble Supreme Court has held that there is no repugnancy between s. 2 of the Power of Attorney Act and s. 26A of the IT Act. 15. For the purpose of s. 2, there has to be assumption that there is a power of delegation available or exercisable under the existing law and the donee of power might act for and in the name of principal. Section does not empower an agency to be created or implied in each and every case. The Hon'ble Supreme Court has decided the issue in the case of CIT vs. Keshab Chandra Mandal (1950) 18 ITR 569 (SC), whereby the significance of the signature on statutory document has been elaborated. The Hon'ble Supreme Court has given following judgment on the issue: "Per Court: 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 appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was 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." 16. Coming back to s. 2 of the Power of Attorney Act, we are of the opinion that in case a signature is to be put on various statutory requirements, depositions and verifications then such power inherent with any person cannot be assigned unless and until the statute is giving that power of assignment to the donor. In case such powers are given then they have to be strictly complied with. We are quite clear in our mind that in case of an agent or any other person who will sign return of income, appellate forms and verification columns must get this power specified in the power of attorney, then alone they can satisfy the condition laid down under s. 140(a)(ii). 17. Under no circumstances, other than what is provided by s. 140(a)(ii), any other person except the appellant can put his signature on the form and the verification column, under r. 45 and r. 47. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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