TMI Blog1973 (9) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... on 256(1) of the Income-tax Act, 1961, runs thus: "Whether in the presence of the karta of the Hindu undivided family, it is lawful for a member of the Hindu undivided family to sign and verify the memorandum of appeal before the first appellate authority and, if so, whether the said appeal so presented suffers from a curable irregularity or is illegal?" The facts out of which the aforesaid question has been referred have been stated clearly in the order of reference. The assessee is a Hindu undivided family consisting of Shri K. P. Sahu and Shri Padmalochan Sahu who are related as father and son. Against the order of assessment passed by the Income-tax Officer the assessee filed an appeal on March 15, 1967, before the Appellate Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed by sub-rule (1), the grounds of appeal and the form of verification appended thereto shall be signed- (b) in the case of a Hindu undivided family, by the karta, and, where the karta is absent from India or is mentally incapacitated from attending to his affairs, by any other adult member of such family." This rule, therefore, prescribes in unequivocal terms that the memorandum of appeal in Form No. 35 should have been signed in this case by the karta of the family which was, in fact, not done. The subsequent rectification when another appeal was filed did not conform to the rules inasmuch as the son, Padmalochan Sahu, was not the karta of the Hindu undivided family. It is, therefore, clear that the required rule was not com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee still does not remove the defect, then clearly the rule would operate and the memorandum of appeal is liable to be dismissed. It is in that sense that the law becomes mandatory at that stage. It is, however, remarkable to notice that both the Appellate Assistant Commissioner and the Appellate Tribunal have clearly come to the conclusion that the memorandum of appeal should have been signed by the karta of the family. There was, therefore, no necessity to make a reference to this court by framing the first part of the question which was not in controversy. The first part of the question is to the effect : "Whether in the presence of the karta of the Hindu undivided family, it is lawful for a member of the Hindu undivided family ..... X X X X Extracts X X X X X X X X Extracts X X X X
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