TMI Blog2006 (8) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Accounts Officer signed the appeal papers. This defect was brought to the notice of the assessee by the CIT(A). The assessee, instead of filing revised form No. 35, sought the permission of the CIT(A) to withdraw the appeals and to file fresh appeals. The CIT(A) dismissed the original appeals as withdrawn. Thereafter, the assessee filed fresh appeals against the very same orders of the Assessing Officer. In filing the fresh appeals, there was a delay of 42 days. The assessee filed an application to condone the delay. The CIT(A), however, rejected the same on the ground that the assessee was not prevented by sufficient cause in presenting the appeals within the period of limitation. The assessee has filed the present appeals before this Tribunal challenging the correctness of the above order of the CIT(A). 3. Shri Jintender Kumar, learned representative for the assessee, submitted that originally the appeals were filed within the period of limitation. All along, the assessee was filing returns of income with the signature of the Deputy Chief Accounts Officer. The Assessing Officer all along accepted the returns of the assessee. The appeals were also filed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the Deputy Chief Accounts Officer, the fact remains that for the assessment years under consideration, the defect was brought to the notice of the assessee by the CIT(A) during the course of hearing. Immediately, the assessee rectified the defect by filing fresh appeals. The first issue that arises for consideration is whether the non-signing of the appeal papers by the proper person is a curable defect or not. This issue has been considered by the Apex Court in the case of Union Bank of India v. Naresh Kumar AIR 1997 SC 3. The Apex Court held that the non-signing of the papers by the proper person is only a curable defect and when the defect was cured, the date of filing of the appeal will relate back to the original filing. This judgment of the Apex Court was considered by the Bangalore Bench of this Tribunal in the case of Wipro Information Technology Ltd. v. Dy. CIT [2004] 88 TTJ (Bang.) 778. The Bangalore Bench of this Tribunal held that when the defect was rectified by getting the appeal papers signed by the competent person, the appeal will relate back to the date of original filing. One of us, the Judicial Member, was a party to the decision of the Bangalore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality and not a fatal defect so as to render the appeal a nullity. In fact, we have also held that the non-signing of the appeal papers by the Managing Director is only a curable defect as held by the Apex Court in the case of Naresh Kumar ( supra ). The learned representative of the assessee has also placed a copy of the Bombay Bench of this Tribunal in the case of Harilelas v. First ITO [1986] 16 ITD 356 at page 27 of the paper book. In that case also, the form of appeal was signed by the constituted attorney and not by the partner of the firm. The Bombay Bench of this Tribunal held that the assessee should be given a reasonable opportunity to rectify the error, if any, and thereafter, once the appeal is rectified, it would be deemed that the memo of appeal was originally filed in accordance with law. The memo of appeal, as observed by the Bombay Bench, would relate back to the date on which it was originally filed and there was no question of any limitation. The Bombay Bench placed reliance on the judgment of the Orissa High Court in the case of Addl. CIT v. K. Padmalochan Sahu [1974] 95 ITR 113. In view of the above, there may not be any delay in filing the appeals, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounts Officer may be bona fide. However, we hasten to add that section 140 of the Income-tax Act requires that the Managing Director should sign the returns and appeal papers. A duty is cast on the Assessing Officer as well as the CIT(A) to bring to the notice of the assessee the defect, if any, in filing the returns or appeals respectively. Since the Assessing Officer and the CIT(A) have not brought such defect to the notice of the assessee by issuing defect memo etc. on earlier occasions, the assessee may be under the bona fide impression that the signing of appeal papers by the Deputy Chief Accounts Officer would be sufficient. As soon as the CIT(A) pointed out the defect for the assessment years under consideration, the defect was rectified. In those facts and circumstances, in our opinion, there was a reasonable cause, if at all there was a delay in filing the appeals. 10. We have also carefully gone through the judgment of the Apex Court in the case of Mst. Katiji ( supra ). As held by the Apex Court, whenever there is a conflict between substantial justice and technical consideration, substantial justice deserves to be preferred rather than the technicality. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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