TMI Blog1992 (9) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... leted under section 143(3). In the first appeal, the Commissioner of Income-tax (Appeals) held that the initiation of the proceedings under section 147(b) was unauthorised as it resulted from change of opinion by the successor-Assessing Officer. He, therefore, cancelled the assessment. Alongside the contention against the assumption of jurisdiction for reassessment, the assessee also raised before the Commissioner of Income-tax (Appeals), the question of validity of the notice itself issued under section 148, initial jurisdiction apart. The allegation was that the notice did not contain the distinct signature of the Income-tax Officer. On this contention, the Commissioner of Income-tax (Appeals) gave no finding inasmuch as the assessment itself had been quashed by him on grounds of want of initial jurisdiction. The Revenue preferred an appeal against the order of the Commissioner of Income-tax (Appeals) cancelling the proceedings under section 147(b) on the question of initial jurisdiction. The assessee did not, however, file any cross-appeal or cross-objection against the action of the Commissioner of Income-tax (Appeals) in ignoring the assessee's objection to the validity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l had no power of pronouncing on the grounds taken in the assessee's miscellaneous petition since the assessee could not raise that issue in the appeal of the Revenue containing the grounds against the finding of the Commissioner of Income-tax (Appeals) as to lack of inherent jurisdiction under section 147(b). The validity of the mode of issue of the notice under section 148 was not at all the subject-matter of appeal. We have heard the rival submissions. The main thrust of the argument advanced on behalf of the assessee is against the manner in which the Officer has put a curved line purporting to be his signature. The assessee's counsel contends that the form of the notice at the bottom has a dotted line for placing the signature of the Income-tax Officer issuing the notice. What appears there is an undulating curve without signifying any letter so as to be the signature of a person. It has also been pointed out that it is not that the self-same Officer had always put as his signature such a curved line. There are some papers where his signature looks more like some writing. But, in the impugned notice, what appears has no semblance of any writing. Therefore, this notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1925 Mad 660. It is pointed out that these decisions were rendered despite the requirement of Order 6, rule 14, of the Civil Procedure Code that every pleading shall be signed by the party or his pleader. Reference was further made to B. K. Gooyee v. CIT [1966] 62 ITR 109 (Cal). There it has been held, inter alia, that a notice under section 34 (corresponding to section 147/148 of the Income-tax Act, 1961), which does not contain the signature of the Income-tax Officer who issues it is invalid. This irregularity cannot be retrieved by the plea of waiver by the assessee or his counsel because the irregularity is not one of merely procedural character. Our attention was drawn to the fact that this court, while delivering that judgment, deprecated such a notice as one containing an irregularity but not an illegality. Therefore, it cannot be said that the decision supports the case of the assessee, more so when, in the instant case, it is not that the notice contains no signature. The case made out against the Revenue is that the signature contained in the notice is of doubtful authenticity. So the present case is radically distinguishable from B. K. Gooyee's case [1966] 62 ITR 109 (Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "With regard to the analogous provisions of Order 6, rule 14, there is authority for the view that the omission or failure on the part of the plaintiff to sign the plaint is a mere irregularity which can subsequently be rectified and the omission is not a vital defect. That is the view expressed by the judicial Committee in Mohini Mohun Das v. Bungsi Buddan Saha Das [1889] ILR 17 (Cal) 580 and by the Madras High Court in Lodd Govindoss Krishnadas Varu v. P. M. A. R. M. Muthiah Chetty, AIR 1925 Mad 660." Learned counsel for the Revenue further cited Brahmaiah (Velivalli) v. Emperor, AIR 1930 Mad 867 ; [1930] 59 MLJ 674, where the Madras High Court held that a judgment of a Bench of Magistrates has to be signed as required by law and the requirements of public policy necessitate the writing of the full name of the Magistrate that signs the judgment and the mere putting of the initials is not sufficient compliance with the mandatory provisions of section 265 of the Criminal Procedure Code (V of 1889). At the same time, the said High Court also held that illustration to section 537 of the old Act, viz., "the Magistrate being required by law to sign a document signs it by initials onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 income, assessment notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act." This clearly shows that this provision is meant to meet the situation like the one present before us. The Supreme Court in CIT v. Calcutta Discount Co. Ltd. [1973] 91 ITR 8, at page 11, observed : "The procedure adopted by the Tribunal appears to us to be some what strange. The Tribunal, instead of dealing with the substance of the matter, appears to have been unduly influenced by procedural technicalities. " This is precisely what the Tribunal did in the instant case.Accordingly, we hold that the conclusion of the Tribunal is erroneous. We answer the first limb of the question negatively holding that the Tribunal had no occasion and, therefore, no authority to give a find ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
