TMI Blog1992 (1) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... company preferring appeal against the two assessment orders of the ITM stated above. The CIT (A) observed in the impugned order that as per rule 45(2)(c) of the Income-tax Rules, 1962 the same should have been signed by the Managing Director of the company or by any Director of the company and since the same was signed by the Advocate it was not in accordance with rule 45(2)(c) and, therefore, he dismissed the appeals as being incompetent and not as per law. 3. At the time of hearing on 5-12-1991 Sri S.D. Tiwari, Chartered Accountant, who is one of the general power of attorney Agent from one Sri C. L. Mittal, a Director of the appellant company, appeared and submitted that Sri B.K. Das, Advocate was authorised to sign the memorandum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory provisions. 4. The learned departmental representative relied upon the order of the CIT(A) and urged that the appeals were incompetent and the CIT(A) was right in not entertaining same. 5. We have heard both the parties. It is worthwhile here to refer to rule 45(2)(c) as it existed at the time of filing of the appeal. It says as under : " (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." Thus, strictly applying the above rule the appeal memo should have been signed by the Managing Director or in his absence by any director of the company. But in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri B.K. Das, Advocate was not in conformity with the provisions of rule 45(2)(c) yet we are of the opinion that it was only a defect and an irregularity which can even at the appellate stage, be removed or cured. In our view, where a legal practitioner signs a memorandum of appeal though assuming he had no authority to do so, can only be deemed as a trivial or simple defect but not material defect or irregularity going to the root of the matter effecting the validity of the appeal or the jurisdiction of the CIT(A) to entertain the appeal itself. It was only an irregularity which the CIT(A) on a consideration of the peculiar circumstances of the case could have suo motu itself directed removal of such trivial or simple defect or cure all or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure. The non-compliance or defective compliance of that rule at the most can be held to be an irregularity, curable by any Tribunal at its own instance and not a serious illegality affecting the rights of the parties or affecting the jurisdiction of the Tribunal thereby tending to defeat the ends of justice which are otherwise available to the concerned parties. Our view has also the support of the decision of the Calcutta High Court in the case of Sheonath Singh v. CIT [1958] 33 ITR 591 and also from the decision of the Patna High Court in the case of Gouri Kumari Devi v. CIT [1959] 37 ITR 220 and of Madras High Court in the case of CIT v. ITAT [1987] 167 ITR 250, wherein those courts have dealt similar controversies about signing of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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