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TMI Blog2005 (3) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ould prove fatal to the case of the assessee. Before we proceed to determine the various legal facets of this aspect of law, it would be appropriate for us to refer to the facts giving rise to the present reference. The assessee in the relevant assessment year 1978-79 was a partnership concern, and was assessed for income-tax purposes by the Income-tax Officer, Law Circle-II, New Delhi. The assessee filed the return of the partnership concern on October 30, 1978 showing loss of Rs. 1,27,133. Notice under section 143(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), was issued to the firm which was asked to file details of various expenses claimed, and support the same by various documentation. The chartered accountant of the firm appeared before the Assessing Officer in response to the said notice. Vide order dated September 25, 1981 the Assessing Officer determined the taxable income of the firm at Rs. 9,46,713 and after providing permissible deductions, demanded tax on a sum of Rs. 7,22,313. Against this order, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals) (Delhi). The memorandum of appeal which was filed on October 23,198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the statute for the relevant year 1978-79. The same reads as under:- "45.(1) An appeal to the Appellate Assistant Commissioner or, as the case may be, the Commissioner (Appeals) shall be made in Form No. 35. (2) The form of appeal prescribed by sub-rule (1), the grounds of appeal and the form of verification appended thereto shall be signed- (a) in the case of an individual, by the individual himself; where the individual is absent from India, by the individual concerned or by some person duly authorised by him in this behalf; and where the individual is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf; (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; (c) in the case of a company, by the managing director thereof, or where for any unavoidable reason such managing director is not able to sign and verify the return, or where there is no managing director, by any director thereof; (cc) in the case of a firm, by the managing partner thereof, or where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be of some significance, particularly while examining the matter in regard to the rule being absolutely mandatory in terms or being directory. The rule has to be applied to the facts of a given case. However, it will be true in every case that the appeal is preferred by the assessee who has filed the return which has been the subject-matter of determination by the Assessing Officer and it is against the final order of assessment passed by the Assessing Officer that appeal is preferred. Thus the emphasis in the rule is obviously relatable to the knowledge and belief of the person who signs the memorandum of appeal under this rule. The rules of procedure are to further the cause of justice and an approach which would render the remedy ineffective should be avoided, unless it was so specifically or by necessary implication stated in the relevant provisions. The basic object of every procedural law is attainment of effective and efficacious disposal of cases in conformity with the provisions of the statute. A hyper-technical interpretation or enforcement of the provisions, without even providing an opportunity to the affected party to comply with the spirit of the rule, may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of other 13 procedural laws mainly the Code of Civil Procedure. There is an obligation upon the plaintiff to sign and verify the plaint by a duly authorised person in terms of Order 6, rules 14 and 15 of the Code. In the event such signing and verification is defective, either for want of authority or on such similar grounds, in that event, it would not be proper to reject the plaint under the provisions of Order 7, rule 11 of the Civil Procedure Code, but an opportunity should be provided to the plaintiff to correct the defect so that the substantive dispute between the parties can be decided. In this regard, reference can be made to the judgment of the Supreme Court in the case of United Bank of India v. Naresh Kumar [1997] 90 Comp Cas 329; [1996] 6 SCC 660. In that case, while referring to the law of practice and procedure, the objection taken was that plaint was not signed and verified in accordance with law by a duly authorised person. The suit was dismissed by the courts below and the Supreme Court held as under: "... Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iency in court rather than rejecting the plaint right at the threshold for payment of inadequate court fee." In a case where at the time of admission of the second appeal before the High Court, time was granted to the plaintiff to file a certified copy as soon as it is available, but the same was filed within seven days after obtaining some time and the appeal was dismissed by the High Court under Order 41, rule 1(2) of the Code of Civil Procedure, their Lordships of the Supreme Court in the case of Jogdhayan v. Babu Ram, AIR 1983 SC 57, directed that the provisions of section 148 should have been invoked by the High Court and the appeal should not have been dismissed without going into the merits of the case. Substantial compliance with the rules of procedure has normally been accepted by the courts and the consistent view appears to be that the doors of adjudication should not be shut on an applicant at the very threshold of the proceedings, unless there was violation of the substantive provision which resulted in settlement of rights of parties. Procedural law is panacea for achieving the goal or object of fair adjudication. Applying this principle, the Supreme Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r itself is sub judice before us in I.T.R. 480/83. In support of the contention that such a defect, if at all, should be permitted to be rectified, counsel for the petitioner has rightly relied upon the judgment of the Orissa High Court in the case of Addl. CIT v. K. Padmalochan Sahu [1974] 95 ITR 113 where after a detailed discussion relating to a matter that the memorandum of appeal was not signed by a karta or a member of the Hindu undivided family and the appeal should or should not have been rejected, the court held as under: "The difference between the Appellate Assistant Commissioner of Income-tax and the Tribunal lies within a narrow compass purely in the matter of exercise of discretion. The first appellate authority gave one chance for rectification, and on the failure thereof the appeal was dismissed. The Tribunal, however, was of the opinion that a further opportunity should be given for rectification as on the second occasion the assessee committed another mistake by not getting the memorandum of appeal singed by the karta, but by his son. This being a matter of discretion, the Appellate Tribunal is to exercise it as it thinks proper as the last court of fact. Strictl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vious can be corrected and the doctrine of merger does not apply where the appeal is dismissed on the ground of default, limitation or such defect. As such the respondents can hardly get any benefit of the judgment relied upon by them. The expression "illegal" has been defined as being contrary to law and is normally applicable to everything which is an offence or which is prohibited by law. This word has an extensive meaning including anything and everything which is prohibited by law which constitutes an offence and which furnishes the basis for a civil suit. Giving it a wider meaning, the expression has been equated to "unlawful" (reference can be made to the judgment in Emperor v. Fazlur Rahman, AIR 1930 Patna 593) but it may still not be void. This expression is discerningly distinguishable from the expression "irregularity" and "irregularity" is defined as a want of adherence to some prescribed rule or mode of proceedings and primarily consists of omitting to do what is necessary for due and orderly conduct of the proceedings. The word "illegality" on the other hand is properly pre-dicable of radical defects only and signifies what is contrary to the principle of law, as dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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