TMI Blog1983 (11) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... i Hemchand Golecha, on 21-2-1978 and 31-3-1978, respectively, and then the original assessments had been made by the ITO on 30-3-1978 and 31-3-1978 for these years, respectively. Why returns were filed by Smt. Prabha Golecha, the facts clarifying this question have to be stated. Shri Hemchand Golecha had gone to Geneva with his wife on 22-1-1976. His wife returned to India alone in May 1976. Shri Hemchand Golecha had left for Brazil on 6-7-1976 from Geneva and was scheduled to arrive there on 7-7-1976. He had reached the airport of Brazil on the scheduled date but since then his whereabouts have not been heard till date. All the efforts made by the members of his family remained without success. As he could not be heard for quite sometime, his wife, Smt. Prabha Golecha, filed returns for the assessment years 1976-77 and 1977-78 and believing her case to be correct that the whereabouts of Shri Hemchand Golecha have not been heard since 7-7-1976, the department proceeded to make assessments on the returns filed by her. Thereafter, the IAC (Assessment) issued a notice under section 148 of the Act for the assessment year 1977-78 and a notice under section 139(2) of the Act for the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard Shri B. Khosla, the learned representative for Smt. Prabha Golecha, and Shri A. P. Saxena, the learned representative for the revenue. The argument of Shri Sexena is that in all these cases Shri Hemchand Golecha is the assessee and it is he who can file the appeals. He further argues that Smt. Prabha Golecha can file appeal either under the authorisation of her husband or as a legal heir and she being neither is not competent to file appeals. For the purpose of the income-tax Shri Saxena drew our attention to rule 45 of the Income-tax Rules, 1962. Referring to clause (a) of sub-rule (2) of rule 45, Shri Saxena argues that Shri Hemchand Golecha, meaning thereby the assessee, being an individual should have signed the form of appeal, grounds of appeal and the form of verification appended thereto himself and that he could authorise somebody else to sign the form of appeal, the grounds of appeal and the form of verification only if he was absent from India. Shri Saxena says that Shri Hemchand Golecha having gone abroad could have authorized his wife to sign the papers and file the appeal on his behalf but there is no evidence on record to show that he duly authorised his wife in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appeal but is a much wider right which may be exercised by any person who becomes liable to pay tax by any order against which the appeal is preferred. Relying on this authority which Shri Khosla relied on before the Commissioner of Income-tax (Appeals) also, he argues that under both the sections 246 and 253 of the Act, an appeal can be filed by any assessee aggrieved by the orders of the ITO or the AAC/the Commissioner of Income-tax (Appeals), as the case may be. Shri Khosla submits that Smt. Prabha Golecha is an aggrieved assessee within the meaning of sections 246 and 253 and she is well entitled to file appeals against the orders of the Commissioner of Income-tax (Appeals)/the Commissioner of Wealth-tax (Appeals) and the Tribunal. Section 2(7) of the Act defines the expression 'assessee' meaning as a person by whom any tax or any other sum of money is payable and then it gives an inclusive definition under sub-clauses (a), (b) and (c). The question is whether Smt. Prabha Golecha can be said to be an 'assessee' within the meaning of section 2(7). Reassessment and assessments under the Income-tax/the Wealth-tax Act have been made by the department on Shri Hemchand Golech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even as an aggrieved assessee, Smt. Prabha Golecha could have filed appeals herself in her own name but the instant appeals have been filed in the name of her husband by her under her signature. It is not disputed that Smt. Prabha Golecha has filed all the appeals and all of them bear her signatures. It is also not in dispute that in the title in the form of appeals the name of Shri Hemchand Golecha appears in all the appeals. Since the name of Shri Hemchand Golecha appears in the title in the forms of all the appeals, the contention of the revenue is that for all purposes the appeals will be said to have been filed by Shri Hemchand Golecha and, therefore, within the meaning of sub-rule (2) of rule 45, it is he who could sign them and he having failed to sign them, all the appeals are liable to be dismissed being invalid. We do not agree with this submission. The questions : as to who has filed the appeals and whether the appeals having been filed by a proper person would stand vitiated by virtue of the fact that the name in the form of appeals has been wrongly given, are two different questions and they should not be mixed up with each other. We have already found that Smt. Prabha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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