TMI Blog1950 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... o serious dispute as to the facts leading up to this appeal. They are shortly as follows : --- In response to a notice issued under Section 24(2) of the Bengal Agricultural Income-tax Act, 1944, the assessee, who is the respondent before us, submitted a return showing his total agricultural income for the assessment year 1944-45 to be Rs. 335. This return is dated the 3rd April, 1945, and just below the declaration appears the following writing in vernacular : "Sri Keshab Chandra Mandal." On the 18th April, 1945, the Agricultural Income-tax Officer noted on the order sheet that the case would be taken up at Bankura Dak Bungalow on 6th May, 1945, and directed the office to inform the party to appear with all settlement records, vouchers etc. On the 6th May, 1945, the assessee filed a petition before the Agricultural Income-tax Officer who had gone to Bankura stating inter alia that he had been advised that the return which he had submitted before under the advice of a Headmaster of a school was not a proper return, that there were many mistakes in the return and many things had been omitted and that, therefore, it was absolutely necessary for him to submit a a fresh return and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer thereafter immediately proceeded with the assessment and assessed Rs. 4,968-12-1 as the assessable income. The assessee preferred an appeal from this order to the Assistant Commissioner, Agricultural Income-tax, Bengal. The Assistant Commissioner by his order dated the 14th August, 1945, dismissed the appeal and confirmed the assessment under Section 35(4)(a)(i). The assessee thereupon preferred a further appeal before the Income-tax Appellate Tribunal. The Income-tax Appellate Tribunal on the 9th December, 1947, accepted the appeal on the ground, amongst others, that the return filed on the 7th May, 1945, was a proper return and should have been treated as such. The Commissioner of Income-tax thereupon applied under Section 63(1) of the Act for a reference of certain questions of law to the High Court. The Appellate Tribunal by its order dated the 22nd April, 1948, referred the following question of law to the High Court : --- "Whether in the circumstances of this case, the declaration in the form of return signed by the illiterate assessee by the pen of his son should be treated as properly signed and a valid return." The reference came up before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided family, a company, the Ruler of an Indian State, a firm or any other association will not be compellable to sign personally. The High Court took the view that to avoid such a patent anomaly which would inevitably result if the interpretation proposed by department were to be accepted, the Court should follow the common law rule mentioned above. In the result, the High Court answered the point of law referred to them in the affirmative. The learned Standing Counsel to the Government of Bengal (Mr. K. P. Khaitan) in the course of a fair and lucid argument contended before us that the Court should give effect to the plain meaning of the words of the statute and the rules which have statutory force whatever might be the consequences and that on a plain reading of the Act and the rules there could be no doubt that the Legislature intended the return of an individual assessee to be signed by himself, i.e., personally. Learned counsel referred us to a number of decisions both Indian and English, where personal signature had been held indispensable. There is no doubt that the true rule as laid down in judicial decisions and indeed as recognised by the High Court in the case bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the signing or verification of pleadings applicable to the returns to be filed by any asseseee. If the Legislature intended that the return might be signed by the assessee or by his authorised agent there could have been no difficulty in inserting a section in the Act adopting the provisions of the Code relating to the signing and verification of pleadings as if the return was a pleading in a suit. Sections 35 and 58 expressly permit an assessee to attend before the Assistant Commissioner and the Appellate Tribunal or any Agricultural Income-tax authority in connection with any proceeding under the Act, otherwise than when required under Section 41 to attend personally for examination, to attend by a person authorised by him in writing in this behalf, being a relative of, or a person regularly employed by, the assessee, or a lawyer or accountant or agricultural income-tax practitioner. It should be noted that even under this section any and every agent cannot represent the assessee but only certain specified kinds of agents can do so. To summarise, the omission of a definition of the word "sign" as including a signature by an agent, the permission under Section 25 for production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows : --- " The forms of appeal prescribed by rules 13 and 14 and the forms of verification appended thereto shall be signed --- (a) in the case of an individual, by the individual himself ; (b) in the case of a Hindu undivided family, by the Manager or Karta thereof ; (c) in the case of a company, by the principal officer of the company ; (d) in the case of a firm, by a partner of the firm ; (e) in the case of a Ruler of an Indian State, by the principal officer of the State ; and (f) in the case of any other association of individuals, by a member of the association," and such forms of appeal shall be also signed by the authorised representative, if any, of the appellant. Rule 17 deals with applications for refund of tax. Sub-rule (2) requires every such application to be signed by the claimant and his authorised representative, if any, and allows such application to be presented by the applicant either in person or through such authorised representative. Rule 22 requires that where an application or memorandum of appeal is signed by an authorised representative, the latter must annex to it the writing constituting his authority and his acceptance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and (c) before a British Consul, if he resides elsewhere." This does not mean that only the claimant for refund under Section 48(2) who resides outside India must sign his application personally and other assessees or appellants or applicants or claimants need not sign their return or appeal or application personally. All that it means is that such a claimant for refund under Section 48(2) must have his signature authenticated by certain public officers by swearing the declaration in their presence. This clearly indicates that personal signature of the assessee, the appellant or applicant is necessary in all cases wherever his signature is required and authentication of such signature is required only in the case of a claimant for refund of tax under Section 48(2). There are yet other reasons why personal signature of an assessee, appellant, applicant, or claimant is necessary. It has been seen that under the Act and/or the rules several acts can be done by or through the authorised representative, namely, production of documents, presentation of appeal or application and attendance in proceedings before the authorities. The expression "authorised representative" is defined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or inconvenience. Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute or the rules. Further, there is no hardship or inconvenience. In the case of an illiterate person, he can put his mark which, by the Bengal General Clauses Act, is included in the definition of "sign". If claim Form 20 for refund of tax under Section 48(2) can be sent to a claimant abroad for his signature before certain public officer for authentication, there can be no hardship or inconvenience in sending to him abroad the return in Form 5 for his signature without the necessity of any authentication thereof. It is said that such a construction will prevent a leper who, by reason of the loss of his fingers, cannot even put his mark. Such cases will indeed be rare and in any event it will be for the Legislature to rectify this defect. Not to insist on personal signature on returns or appeals or applications will let in signature by agent not duly authorised in writing and without production of such writing. In that case the provisions for penalty for filing false returns may quite conceivably be difficult of applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co., Ltd. and M. A. Kureshi v. Argus Footwear, Ltd. See also Wilson v. Wallani. In C. T. A. C. T. Nachiappa Chettyar v. Secretary of State for India, it was held that the registration of a firm on an application signed by the agent of the partners was ultra vires inas much as the rules framed under Section 59 of the Income-tax Act required an application signed by at least one of the partners. In Commissioner of Income-tax, Madras v. Subba Rao, it was held that by reason of the word " personally " occurring in rule 6 of the Income-tax Rules framed under Section 59 of the Income-tax Act, 1922, a duly authorised agent of a partner was precluded from signing on behalf of the partner an application under Section 26A of the Act for registration of the firm. In all these cases the common law rule was not applied, evidently because the particular statutes were held to indicate that the intention was to exclude that rule. This intention was gathered from the use of the word " himself " or " by him " or " under his hand " or " personally." It is needless to say that such an intention may also be gathered from the nature of the particular statute or inferred from the different provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. If a statute requires personal signature of a person, which includes a mark, the signature or the mark must be that of the man himself. There must be physical contact between that person and the signature or the mark put on the document. The result, therefore, is that this appeal must be accepted and the question referred to the High Court must be answered in the negative. There will be no order for costs against the assessee and the appellant Commissioner must bear his own costs throughout. FAZL ALI, J.---I agree. PATANJALI SASTRI, J.---I agree. MUKHERJEA, J.---I agree. MAHAJAN J.---The question of law referred to the High Court and anwered by it in the affirmative is in these terms : --- " Whether in the circumstances of this case, the declaration in the form of return signed by the illiterate assessee by the pen of his son should be treated as properly signed and a valid return ". The High Court was not called upon to answer the question whether an income-tax return could be validly signed by an agent in the name of the principal ; on the other hand, the question as framed assumes that the return was signed by the illiterate assessee but that the pen affixing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee had not touched the pen or the hand of the person who put the signature on the return he should have called upon the assessee to appear before him and ascertain from him the circumstances in which the son's pen was used for the signature. In In the matter of Commissioner of Income-tax, C. P. U. P. it was observed that it is the duty of the Income-tax Officer before he accepts a return signed by an agent to satisfy himself about the authority of the agent to do so. In my opinion, it is equally the duty of an Income-tax Officer before he rejects a return of an illiterate assessee or a person such as a leper, to satisfy himself that there was no physical contact of the person with the mark or the signature put on the form. I agree with my brother Das that there should be physical contact between the person and the signature or the mark put on the document but I am afraid I cannot agree with him that in this case that has not happened. The question to a certain extent assumes the contact of the assessee with the pen of his son when it states that the illiterate assessee's signature was put with the pen of the son. Be that as it may, that circumstance has not been eli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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