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TMI Blog2006 (7) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal, Indore, in I. T. A: Nos. 16, 17 and 18/Ind/2003. The appeal was admitted for final hearing on the following substantial questions of law: "1. Whether the Income-tax Appellate Tribunal was justified in holding that requirement of rule 45 of the Income-tax Rules, 1962, are directory and not mandatory? 2. Whether the Income-tax Appellate Tribunal was justified in holding that a memo of appeal filed by the assessee before the Commissioner of Income-tax (Appeals) is valid even though it is not signed by the assessee but is signed by his lawyer?" The facts of the appeal lie in a narrow compass. However, they need mention in brief infra to appreciate the controversy raised in this appeal. The respondent (assessee) suffered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irregularity to the assessee (i.e., the appellant before the Commissioner of Income-tax (Appeals)) by allowing the assessee to sign the memo of appeal as provided in section 140 read with rule 45. It is with this finding, the appeal was allowed and while setting aside of the impugned order passed by the Commissioner of Income-tax (Appeals), the case, i.e., appeal was remanded to the Commissioner of Income-tax (Appeals) with a direction to the learned appellate authority to allow the "assessee to sign the memo of appeal so as to make the same in conformity with the requirement of section 140 read with rule 45 and then decide the appeal on the merits. It is against this order, the Commissioner of Incometax has felt aggrieved and filed this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aL" The aforesaid decision was followed by this court in the case reported in Kalu Ram Pannalal v. Jagannath Kalua, AIR 1963 MP 151 where the learned judge P. R. Sharma in somewhat similar facts held as follows: "In the case before Chhagla C. J., as well as in the one before me, the plaint was signed by a person holding a general power of attorney. Though the signature on a pleading by an 'Aam Mukhtiyar' is not in accordance with law, such a pleading is not signed and presented by an utter stranger or a person who had not at all been authorised by the plaintiff to sign it, so as to result in the suit being deemed not to have been instituted at all. Be it as it may, the weight of authority is in favour of the view taken by Chhagla C. J. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment are wholly unjustifiable qri:' the materials on record." This question then directly arose before the Division Bench of the Patna High Court under the Income-tax Act in a case reported in Gouri Kumari Devi v. CIT [1959] 37 ITR 220. In that case also, the Tribunal dismissed the appeal on the ground that the assessee failed to personally sign the memo of appeal. Ramaswami C. J. (as his Lordship then was) speaking for the Bench while setting aside such dismissal held as follows: "Failure of an assessee personally to sign the memorandum of appeal presented to the Appellate Tribunal is not an illegality but only a mere irregularity which can be rectified by an amendment, the amendment taking effect from the date the memorandum of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f discipline, but for the sake of deciding matters in controversy." Speaking for the Bench, the learned judge R. V. Raveendran made the following subtle observations for the guidance of all courts and the Tribunals in country: "Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or affiliation or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use." Coming to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judge, speaking for the Bench made the following memorable observations in his inimitable style of writing. How eloquent and far-reaching these observations are: "A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws, of procedure are grounded on principle of natural justice which requires that m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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