TMI Blog1956 (5) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Income-tax Act (XI of 1922), hereinafter referred to as the Act, for the assessment year 1942. Sometime thereafter, one of the partners, Subba Rao, is stated to have left on a long pilgrimage, and the affairs of the partnership were then managed by Hariprasada Rao as his agent under a general power-of-attorney dated 1st July, 1940. Hariprasada Rao then applied under rules 2 and 6 of the rules framed under section 59 of the Act, for renewal of the registration certificate for the year 1942-43, and the application was signed by him for himself and again as the attorney of Subba Rao. Those rules provide that an application for registration of a firm under section 26A and for renewal of registration certificate shall be signed personally by all the partners . The Income-tax Officer rejected the application for renewal on the ground that it was not personally signed by one of the partners, Subba Rao, and that the signature of Hariprasada Rao as his agent was not valid. The order was taken in appeal, and was ultimately the subject of a reference under section 66(1) of the Act to the High Court of Madras, which held that the word personally in rule 6 required that the partner s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions quoted with approval by this Court in Commissioner of Agricultural Income-tax v. Keshab Chandra Mandal, where the question was whether a rule framed under the Bengal Agricultural Income-tax Act that the declaration in the return should be signed by the individual himself required that he should sign it personally, and it was held that it did so require. Sri K. S. Krishnaswami Ayyangar, learned counsel for the appellant, did not urge any grounds for differing from the above conclusion, and we must therefore hold, in agreement with the views expressed in the above decisions, that the signature which is prescribed by the rules is that of the partner himself, and that they are not complied with by the agent signing on his behalf. Then we come to the second question--and that is the substantial question that arises for our determination in this appeal--whether rules 2 and 6 are ultra vires the rule-making authority. The argument of the appellant in support of its contention that the rules are ultra vires may thus be stated : Under the common law of England, a person has the right to do through an agent whatever he can do himself, and that right has also been conferred on him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal delegation by the legislature of its legislative function. It is the correctness of these contentions, that now falls to be considered. According to the law of England--and that is also the law under the Indian Contract Act, 1872--- every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right : Per Stirling, J., in Jackson Co. v. Napper : In re Schmidts' Trade-Mark. This rule is subject to certain well-known exceptions as when the act to be performed is personal in character, or is annexed to a public office, or to an office involving fiduciary obligations. But apart from such exceptions, the law is well settled that whatever a person can do himself, he can do through an agent. It has accordingly been held that at common law, when a person authorizes another to sign for him the signature of the person so signing is the signature of the person authorizing it : Per Blackburn, J., in The Queen v. Justices of Kent. The appellant is therefore right in his contention that unless the statute itself enacts otherwise, an application w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 170 ; Craies on Statute Law, 5th Edition, page 337). If it is possible , observed Farwell, J., it is my duty so to read the section as not to effect an implied repeal of the earlier Act : In re Chance. Unless two Acts are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implied. Per A. L. Smith, J., in Kutner v. Phillips. In the light of these principles, it is contended that the true scope of section 26A is that it confers a right on a partner to register the firm and leaves the modus of the exercise thereof to be regulated by the existing law, and that, therefore, far from showing an intention either to alter the general law as to the right of a person to act through his agent or to repeal section 2 of the Powers-of-Attorney Act, the section depends on their continued operation for its implementation. Now, the rules of construction on which the appellant relies are well-established. But then, it should not be overlooked that they are only aids to ascertain the true intention of the legislature as expressed in the statute, and the question ultimately is, what in the context do the words of the enactm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrown on their true import by the decision of this Court in Commissioner of Agricultural Income-tax v. Keshab Chandra Mandal. There, the question was as to the meaning of rule 11 framed under the Bengal Agricultural Income-tax Act, 1944, read with Form No. 5, which required that the declaration in the return should be signed in the case of an individual, by the individual himself. It was held by this Court on a review of the provisions of the statute that the intention of the legislature as expressed therein was to exclude the common law rule, qui facit per alium facit per se, and the declaration to be valid must be signed by the assessee personally. It is argued for the appellant that Commissioner of Agricultural Income-tax v. Keshab Chandra Mandal was a decision only on the interpretation of rule No. 11 and not on its validity, and that the question whether the rule was ultra vires or not was not in issue. That is so, but the materiality of the decision to the present controversy lies in this that the interpretation which was put on rule 11 as requiring personal signature was based on the conclusion which this Court reached on a consideration of the relevant provisions of the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that Code relating to the attendance and examination of witnesses, production of documents and issuing of commission for examination and for service of notices under sections 41 and 60 respectively cannot be regarded as wholly without significance. This reasoning applies with equal force to the provisions of the Indian Income-tax Act, and goes far to support the contention of the respondent that the common law is not intended to apply to proceedings under the Act. Another factor material for the determination of this question is the nature of the right conferred by section 26A. Under the common law of England, a firm is not a juristic person, the firm name being only a compendious expression to designate the various partners constituting it. But, as pointed out by this Court in Dulichand Laxminarayan v. Commissioner of Income-tax, Nagpur, inroads have been made by statutes into this conception, and firms have been regarded as distinct entities for the purpose of those statutes. One of those statutes is the Indian Income-tax Act, which treats the firm as a unit for purposes of taxation. Thus under section 3 of the Act the charge is imposed on the total income of a firm, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in details in the field of legislation occupied by it, and it is not denied that rules 2 and 6 are within the mandate conferred by the section. In this view, section 59(5) of the Act which enacts that rules made under this section shall be published in the official Gazette, and shall thereupon have effect as if enacted in this Act directly applies, and the vires of the rules is beyond question. Vide the observations of Lord Herschell in Institute of Patent Agents v. Lockwood. Then, there is the contention of the appellant that the rules in question are repugnant to section 2 of the Powers-of-Attorney Act (VII of 1882), and are therefore ultra vires. In addition to the reasons given above in support of the conclusion that the rule of the common law was not intended to operate in the field occupied by section 26A, there is a further and a more compelling reason why this contention should not be accepted. It is that there is, in fact, no conflict between the two statutory provisions. To understand the scope of section 2 of the Powers-of-Attorney Act, it is necessary to refer to the history of this legislation. Under the common law of England, an agent having authority to execut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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