9911796707
TMI Blog1983 (11) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-1982 on the firm of S.S. Billimoria Co., the chartered accountants. The said firm was representing the assessee before the taxing authorities. The last date for filing of appeal was 28-4-1982. 4. On 28-4-1982, the said firm filed appeal before the AAC. The memorandum of appeal bore the signature of partner of the said firm for and on behalf of Mrs. Koder. The said memorandum did not bear the signature of Mrs. Koder. 5. On 5-5-1982, the said firm filed the second memorandum of appeal with a covering letter. This memorandum bore the signature of Mrs. Koder. No formal application containing a prayer for condonation of delay was filed with this memorandum of appeal. 6. The AAC held that the first memorandum of appeal was invalid becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation, the said firm filed the first memorandum of appeal on 28-4-1982 under the signature of the partner of the said firm. After the second memorandum signed by Mrs. Koder was received on 30-4-1982, the covering letter could be dictated only on 3-5-1982 because 1-5-1982 and 2-5-1982, being Saturday and Sunday, were holidays for the office of the said firm. The letter was typed on 4-5-1982 and the memorandum of appeal was filed on 5-5-1982. 8. We shall first consider the question whether the first memorandum of appeal was entitled to be entertained. The only ground on which it has not been entertained is that it did not bear the signature of Mrs. Koder. The question then is whether this is a valid ground for rejecting the said memorandu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its partner indicated that the second memorandum had not been received before that date. The second memorandum had been sent to Mrs. Koder for her signature on 14-4-1982 and in due course it was expected that it would be received before 28-4-1982. Thus, the firm had made an attempt to obtain signature before 28-4-1982 but that attempt failed because of postal delay. 12. When rule 5(2)(a) lays down the condition that it should be impossible for the individual to sign, it does not expect an absolute improbability. What it envisages is reasonable impossibility. When the appeal is to be filed at Bombay and when the person, whose signature is required, is at Cochin, what would be reasonably expected of the firm of chartered accountants is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumes that the said firm is competent to act on her behalf. Consequently, when the said firm signs on behalf of Mrs. Koder under rule 5(2)(a) as a person competent to act on her behalf, it cannot be said that the said firm was not competent to act on her behalf. The circumstances indicate that the said firm was competent to act on her behalf. Hence, we are satisfied that the second condition has also been fulfilled. Consequently, the first memorandum of appeal filed on 28-4-1982 was valid and it should not have been rejected. The AAC has erred in not considering the provisions of rule 5(2)(a) to which his attention had been drawn. 14. As regards the second memorandum of appeal, it was the duty of the firm of chartered accountants to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down that no proceeding taken or purported to have been taken in pursuance of the provisions of the said Act would be invalid or deemed to be invalid merely by reason of any mistake, defect or omission in such proceeding if such proceeding is in substance and effect in conformity with or according to the intent and purposes of the said Act. It was contended that the first memorandum of appeal was in substance and effect in conformity with or according to the intent and purposes of the Act and as such any irregularity on account of non-existence of formal power of attorney would not render the proceeding of appeal invalid. We do not consider it necessary to express any view on this contention. 16. In the result, the appeal is allowed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
