TMI Blog1992 (12) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... al power of attorney in favour of Shri P.V. Kulkarni on 3-4-1991, as the assessee was expected to go abroad. As a matter of fact, as stated in the penultimate sentence of para 2 of the appellate order, the said Shri Jaykumar B. Patil was out of India from 13-4-1991 to 30-4-1991 and the appeal papers in this case were filed on 26-4-1991, ie., when the assessee Shri Jaykumar B. Patil was out of India. 3. The CWT(A) noted that the stamp paper was dated 18th October, 1989 and the execution of General Power of Attorney on 3-4-1991 was not in accordance with section 52B of the Bombay Stamp Act, 1958, because it was not a valid stamp paper and therefore, any power of attorney executed on the stamp cannot be treated as valid in the eye of law. He further concluded that any signature made on the strength of such power of attorney cannot be accepted as having been made in accordance with the provisions of the Act. Hence, the CWT(A) called upon the assessee to show cause as to why the appeals should not be treated as invalid as the same were not signed in accordance with the provisions of Rule 5(2) of the Wealth-tax Rules, 1957 read with section 15 A of the Wealth-tax Act, 1957. 4. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee validly simultaneously on the date of hearing of first set of appeals by the CWT(A). 8. As regards these appeals, the CWT(A) noted that the demand notices were served on 27-3-1990 and the appeals filed on 27-9-1991 were, therefore, out of time. On behalf of the appellant, it was contended that the delay in filing fresh appeals might be condoned as the original appeals themselves were filed in time. This prayer made by the assessee was rejected on the ground that the assessee has not filed a separate application for condonation of delay in filing the fresh set of appeals. Further he held that the fresh set of appeals filed could not be treated as at par with revised returns under section 15 of the Wealth-tax Act. Further he pointed out that there was inordinate delay in filing of fresh set of appeals and that the assessee has not furnished any application for condonation of delay and it was not the duty of the appellate authority to call upon the assessee to furnish an application requesting for condonation of delay and the appeals having not been filed within the time prescribed for filing the appeals, the appeals were dismissed as out of time. 9. At the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The circumstances leading to the execution of general power of attorney should be kept in mind for appreciating the issue. The CWT(A) pointed out that the stamp paper was not valid and hence the power of attorney is invalid and the signature put on such general power of authority is not acceptable as it is not in accordance with the Income-tax Act, 1961. In our humble opinion, the substance of the transaction is to be seen instead of the technicality of the Stamp Act. Even if such technicality is valid, it is only a defect or irregularity which could be rectified by filing valid and authenticating the signature stamp papers, but that is not fatal to the competency of the appeal or it does not affect the validity of the appeal. 13. In the case of Sheonath Singh the first memorandum of appeal was filed by the authorised representative. The second memorandum of appeal was signed by the assessee, but the grounds of appeal were signed by the authorised representative and third memorandum of appeal was signed by the assessee. When the question came up for consideration before the Calcutta High Court, the High Court held that the omission or defects in the first and second memorandum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in respect of the order rejecting application was not competent and declined to answer other questions raised by the department. The Supreme Court considered the third question whether the Tribunal erred in dismissing the appeal summarily and held that though the Tribunal, being unduly influenced by procedural technicalities instead of dealing with the substance of the matter, had erred in rejecting the appeal summarily, because the AAC's conclusion was fully in accordance with law, any answer to the third question would become academic and that the court would not, therefore, answer that question. It is pertinent to consider the relevant observations of the Supreme Court at page 11 of the judgment which read as under : " The procedure adopted by the Tribunal appears to us to be somewhat strange. The Tribunal, instead of dealing with the substance of the matter, appears to have been unduly influenced by procedural technicalities. We are also not impressed with the conclusion of the Tribunal that the appeal memo, was not in accordance with law. No specific formula is necessary for seeking relief at the hands of any court or Tribunal if the necessary grounds are taken in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case are similar to the facts of the assessee's case and therefore, that decision would apply to the case of the assessee also. 17. In the case of Mechno-Plast v. Sixth ITO [1986] 17 ITD 786 decided by the Tribunal, Bombay Bench 'D' the assessee filed a memorandum of appeal before the AAC signed by its attorney in time. Three days later, another memorandum of appeal signed by its only surviving partner was filed explaining the circumstances and as the partner was out of station the first memorandum of appeal could not be signed by him. The AAC dismissed the appeal in limine by holding that the first appeal was not signed by a competent person and the second appeal was filed out of time. The facts of the case are also more or less similar to the facts of the instant case. The Tribunal pointed out that the AAC ought to have called upon the assessee to remove the defect in the light of the judgment of the Calcutta High Court in the case of Sheonath Singh. But without waiting for such requisition by the AAC, the assessee, conscious of the invalidity of the first memorandum of appeal, filed the subsequent memorandum within two days after removing the defect. In the circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of attorney etc. are not in doubt. 19. It is also necessary to refer to the latest judgment of the Supreme Court in the case of Mst. Katiji wherein the appeal by the State was delayed by 4 days and the condonation petition filed by the State was rejected by the High Court. The Supreme Court pointed out that section 5 of the Limitation Act, 1963 is enacted to enable the Courts to do substantial justice by disposing of the matter on merits of the case. The phrase "sufficient cause" was adequately elastic to apply the law in a meaningful manner which subserves the ends of justice, that being the life purpose for which the Court exists. The Supreme Court lamented that this liberal approach followed by the Supreme Court has not percolated down to the hierarchy and to remedy the situation it has laid down six principles for guidance of the Courts. Rule 4 of the aforesaid Rules provides that if substantial justice and technical considerations are pitted against each other, then the cause of substantial justice deserves to be preferred. Rule 6 provides that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealth, assessment, notice, summons or other proceeding furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of wealth, assessment, notice, summons or other proceeding if such return of wealth, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the Intent and purpose of this Act." A reading of the aforesaid section shows that no return of wealth furnished or purported to have been furnished shall be invalid or shall be deemed to be invalid merely by reason of any mistake or defect or omission in such return, if such return is in substance and effect in conformity with or according to the intent and purpose of this Act. The invalidity of the stamp paper could at best be regarded as a defect which could have been rectified by filing a valid stamp paper duly authenticated. In that case, the first set of appeals filed by the general power of attorney would have been valid and competent in the eye of law, i.e., for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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