Income Tax Appellate Tribunal - Chandigarh
Commissioner Of Income-Tax vs Smt. Ranjana Kumari on 28 July, 1986
Equivalent citations: [1986]19ITD662(CHD)
ORDER
F.C. Rustagi, Judicial Member
1. Vide this reference application, the Commissioner of Income-tax had sought reference under Section 256(1) of the Income-tax Act, 1961 for as many as five questions, said to be questions of law, arising out of the Tribunal order in GT Appeal No. 4 (Chd.) of 1984, dated 31-10-1985 (assessment year 1981-82), to the High Court. Though the said application was signed by the Commissioner of Gift-tax Shri Balwant Singh also with the statement of facts duly signed by him but as in the heading of the application, title of the case was mentioned as CIT v. Smt. Ranjana Kumari and it was in Form No. 37 and it was also mentioned that the reference application is under Section 256(1), the learned counsel for the assessee non-petitioner Smt. Ranjana Kumari came forward with a preliminary objection that as the reference application is neither under the relevant section of gift-tax nor it is filed in the prescribed form nor the heading of the same is CGT v. Smt. Ranjana Kumari, the same deserves to be rejected. On 11-4-1986 when the learned counsel for the assessee argued at length the assessee's case pertaining to preliminary objection challenging the admission of the reference application and praying that the same be dismissed in limine and he seemed very serious about pressing the same, the objection not being such which is normally raised, he was required to file the written submissions by 30-4-1986 and the learned departmental representative on the revenue's part by 15-5-1986.
2. The learned counsel for the assessee Mr. Bhim Sain filed written submissions in the Tribunal's office on 21-4-1986, a copy of which was given to the learned departmental representative on 23-4-1986 by the registry. The reference application was listed for hearing on 18-7-1986. The learned senior departmental representative Mr. R.K. Bali filed his written submissions only on 17-7-1986, a copy of the same was given to the learned counsel for the assessee. The learned counsel for the assessee at the time of hearing pressed once again that the reference application be dismissed in limine not only due to original three defects that its heading was wrong, section mentioned was under the Income-tax Act and the form was improper but also because the learned senior departmental representative in spite of asking of the Bench did not furnish his written submissions in time, as he filed the same only on 17-7-1986 and a copy of the same was handed over to the learned counsel for the assessee on 18-7-1986. He also submitted that the revenue should be taught a lesson by rejection of such application because till date of hearing, i.e., 18-7-1986, even fresh and corrected application was not submitted before the Tribunal. Besides highlighting what had stated in his written submission regarding preliminary objection, he drew our attention to the case law cited in the said submissions, viz., Madan Lal v. ITAT [1963] 50 ITR 447 (Punj.), R.B.L. Banarsi Dass &Co. Ltd. v. IT AT [1959] 35 ITR 624 (Punj.), CIT v. Arvind Construction Co. (P.) Ltd. [1985] 19 TLR 477 (Delhi - Trib.) and Sant Baba Mohan Singh v. CIT [1973] 90 ITR 197 (All.). He submitted that the case of Gian Chand Vir Bhan v. CIT [I960] 39 ITR 414 (Punj.), on which reliance is placed by the learned senior departmental representative is distinguishable. He submitted that requirement should be fully satisfied in case of reference application as per rules and also relied on the cases of Trustees Corporation (I) Ltd. v. CIT 4 ITC 378 (PC) and Dhanpat Mal Diwanchand v. CIT [1954] 26 ITR 357 (Lahore), against which the learned senior departmental representative also, beside supporting his brief written submissions, said that it was nothing more than a mistake by inadvertance and for delay in submitting the written submissions and not filing the revised reference application forms till date of hearing took the burden of mistake/lapse on behalf and submitted that day in and day out when the assessees are not made to suffer due to mistake of their lawyers, once in a while if the mistake is of the department, the revenue should not be denied its legitimate right of coming into reference application. He wanted to file the revised forms without any further loss of time but the learned counsel for the assessee was not agreeable to grant of any further time and submitted that he would like to have a finding on the preliminary objection first before the reference application is heard on merit.
3. Before we come to adjudicate the issues raised by the learned counsel for the assessee as preliminary objection, we are of the view that for fairness to both the parties and in the interest of justice, written submissions made by both of them, the assessee and the revenue, be placed here below :
Preliminary objections raised by the learned counsel for the assessee -
The said reference application is incompetent, having been made by an authority who lacked jurisdiction to make the reference application and secondly as the application is not in the prescribed form.
2. A reference to the High Court could be applied for against, the order dated 31-10-1985 of the Hon'ble Tribunal by the Commissioner, in terms of Section 26 of the Gift-tax Act, 1958. The 'Commissioner' is Commissioner of Gift-tax, vide Section 2(vi) read with Section 9. The said application has, however, been made by the Commissioner of Income-tax who had no locus standi in the matter.
3. In Madan Lal v. ITAT [1963] 50 ITR 447, wherein an application under Section 66(2) of the Indian Income-tax Act the assessee had made the Tribunal a party instead of Commissioner of Income-tax, the High Court of Punjab dismissed the application as a proper party had not been impleaded.
4. That presentation of appeal by a proper party was a matter which went to the root of the case, was held by the Punjab High Court in R.B.L. Banarsi Dass & Co. Ltd. v, ITAT [1959] 35 ITR 624. In that case, whereas assessment had been made by an ITO at Amritsar, 'appeal to the Tribunal was made by an ITO at Delhi'. The Tribunal overruled the assessee's objection regarding competency of Delhi ITO to file the appeal and subsequently its application for reference application to the High Court on same point. The High Court allowed the assessee's application under Section 66(2) observing that the question regarding competency of the ITO at Delhi was a matter which went to the root of the case. It went on to observe that 'the right of the assessee or the Commissioner of Income-tax to approach the High Court in income-tax matters which arises out of the provisions of Section 66, can only be exercised, if the requirements of that section are fully satisfied'.
5. Recently, Delhi Bench of the Tribunal dismissed reference application made by the Commissioner of Income-tax-II on the ground that on the date of presentation of that application, jurisdiction over the case stood transferred to the Commissioner of Income-tax-I vide CIT v. Arvind Construction Co. (P.) Ltd. [1985] 19 TLR 477. The date of presentation was 18-8-1984.
6. A proceeding taken by an authority who lacked jurisdiction is void ab initio. Allahabad High Court held in Sant Baba Mohan Singh v. CIT [1973] 90 ITR 197 that 'a proceeding is a nullity when the authority taking it has no jurisdiction either because of want of pecuniary jurisdiction or of territorial jurisdiction or of jurisdiction over the subject-matter of the proceedings.'
7. The infirmity holds notwithstanding the fact that the person who was the Commissioner of Income-tax on the relevant date was the Commissioner of Gift-tax also. What matters is the capacity of that person in a particular proceeding. To illustrate my point, if Governor of Punjab wants to issue an ordinance under article 213 of the Constitution but does it describing himself as Chancellor of Panjab University which office also he holds, the ordinance will not become law for Punjab.
8. And now the form-The form for making a reference form under the Gift-tax Act is Form 1 whereas the form employed by the revenue is Form 37 prescribed under the Income-tax Rules, 1962. Section 26 of the said Act requires a reference form being made in the 'prescribed form'.
9. As already noticed in para 4 above, Punjab High Court has ruled that requirements of the section dealing with reference application must be fully satisfied.
10. Privy Council observed in Trustees Corpn. (I) Ltd. v. CIT 4 ITC 378 that 'the High Court will, in future, be well-advised to require before they seek to entertain any questions under Section 66 of the Indian Income-tax Act that the preliminary requirements of the section are strictly complied with'. And they added : 'The stringency of these requirements is clearly deliberate. It is the intention of the enactment that the High Court is not to be flooded with such applications.'
11. The High Court of Lahore (Pak.) upheld rejection of an application made by assessee to the Tribunal on the ground inter alia that not being in the prescribed form, the application could not be treated as a memo of appeal vide Dhcmpat Mai Diwan Chand v. CIT [1954] 26 ITR 357. The High Court invoked Rule 13 of the Income-tax (Appellate Tribunal) Rules, 1963 in India.
12. Madhya Pradesh High Court emphasised in CIT v. Jiwajirao Sugar Co. Ltd. [1969] 71 ITR 319 that 'before a reference can be made, there must be an application which is made within the period of limitation prescribed under Section 66(1)' and went on to say that 'the application itself has to be made in the form prescribed by Rule 22A of the Income-tax Rules.'
13. Calcutta High Court in CIT v. A.K. Das [1970] 77 ITR 31 held that 'if there is no application in the prescribed form within the period of limitation mentioned in Section 256(1) read with the proviso, the Appellate Tribunal cannot entertain any other application to make a reference to the High Court.
14. Revenue not having complied with the requirements of Section 26 read with rule and Form 1, the application is non est.
15. It remains to be examined, if Section 41C of the Gift-tax Act saves the application. The section is reproduced below for ready reference :
No return of gifts, assessment, notice, summons or other 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 gifts, assessment, notice, summons or other proceeding, if such return of gifts, 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 section corresponds to Section 292B of the Income-tax Act, 1961, and scope of the latter and its application have been discussed in some decisions which show that its scope is limited. In one of such decisions, the issue was validity of an appeal filed by the revenue against a dead person. Accepting the preliminary objection of the assessee's counsel, Amritsar Bench of the Tribunal dismissed the appeal as incompetent being a nullity. Revenue's plea that Section 292B would save the appeal, did not cut ice with the Tribunal. There the respondent was dead; here the applicant is a person totally unconcerned. The case is ITO v. Kamla Vati [1980] 9 TLR 106.
16. In Laxmi Bank Ltd. v. ITO [1985] 12 ITD 175, Nagpur Bench of the Tribunal vacated the decision of the Commissioner (Appeals) and held that an order of penalty made under Section 273(2)(a) could not be sustained where the ITO had given a 'show-cause notice' to the assessee under Section 273(2)(aa). Negative plea of the revenue that Section 292B would save the order, the Tribunal remarked that a mistake to fall within the ambit of that section 'is one which happens casually and it should be a mistake, pure and simple'. Thus like Section 292B of the Income-tax Act, Section 41C of the Gift-tax Act would take care of casual mistake but does not condone casual attitudes. According to Chambers 20th Century Dictionary, 'mistake' means 'a taking or understanding wrongly'. The department with a mighty organisation and staffed with a galaxy of experts could certainly be under no illusion as to the form in which a reference application was to be moved. Use of Form No. 37, therefore, is no mistake. It is likely to be a result of casual attitude to the requirements of the statute and such a situation is not covered by Section 41C. If it were to be held otherwise, a part of the statute loses its sanctity and tomorrow an assessee may send a letter to his ITO saying that his income is Rs. 20,000 and claim that that must be regarded as his return ; another person may scribble Rs. 20,000 on the form of gift-tax return and say that that is his income-tax return. Public policy is to promote regard and not disregard for the law of the land.
17. A few more decisions may be cited to show that Courts have not agreed to treat absence of action as, if it was taken, which one might be tempted to think it does, taking advantage of the word 'omission' in Section 292 of the Income-tax Act and Section 41C of the Gift-tax Act. In Umashankar Mishra v. CIT [1982] 136 ITR 330 (MP), the issue was validity of a notice which the ITO had not signed. The High Court held that the notice was invalid notwithstanding Section 292B. Similarly in CIT v. Smt. Phoolwati [1983] 144 ITR 954, Allahabad High Court held that Section 292B did not come to the rescue of the department where it had omitted to issue notice to a minor through his father, though it had issued one to his mother in her own right. It observed that when a statute requires that something shall be done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, the omission of not doing that in the manner prescribed in some case has been held fatal to its validity . ...' (p. 958). Just as in those two cases, Section 292B did not save omission to sign the notice and to issue a notice, in the instant case, omission to employ the prescribed form altogether as distinguished from failure to conform to the form here and there, is not saved by Section 41C.
It may be pointed out that there are two requirements in Form No. 1 of Gift-tax Rules which are not there in Form No. 37, of Income-tax Rules. In the title, assessment year is to be mentioned and the application is to be dated.
[Emphasis supplied] 16-4-1986 Sd/- Bhim Sain
Reply of the learned senior departmental representative submitted on behalf of the revenue is given below :
The respondent has contested the reference application filed by the department on the following two points-
1. The reference application is signed by the Commissioner of Income-tax while the reference is against the gift-tax order and should have been signed by the Commissioner of Gift-tax.
2. That the reference application has been filed on Form No. 37 which is to be used in reference application for income-tax while it should have been filed by the corresponding form for gift-tax (Form No. 1).
Reply 1 -In this respect, it is submitted that the plea of the respondent is not correct. In the instant case, the reference is filed by the same officer who is the Commissioner of Income-tax and also the Commissioner of Gift-tax. The necessary change as to the designation has been duly made while signing the reference application. Moreover, the statement of facts attached to the reference application is duly signed by him as Commissioner of Gift-tax. Even otherwise it has been held by the various High Courts that description of appellant is not fatal but only an irregularity which can be amended. The decision of Punjab High Court in Gian Chand Vir Bhan v. CIT [1960] 39 ITR 414 and Patna High Court in Gouri Kutnari Devi v. CIT [1959] 37 ITR 220 are relevant on the point. Addl. CIT v. K. Padmalochan Sahu [1974] 95 ITR 113 (Orissa) is another judgment favouring the department.
Reply 2-In this respect, it is submitted that the contents of both the forms are materially the same. The Commissioner of Gift-tax has been approached to sign the application in the proper form meant for the gift-tax reference application and this will be filed very shortly. Kind attention of the Hon'ble Tribunal is invited to the judgments in Behari Lal Laxmi Narain v. ITO [1960] 39 ITR 649 (All.) where it has been held that a petition filed on a wrong form can be rectified and the revised application will be substituted and it will have effect from the date when the original petition was filed. The provision of Section 41C of the Gift-tax Act also state that the proceedings do not become invalid in the eventuality mentioned above.
Submitted please.
Sd/- R.K. Bali As abovesaid, in addition to written agreements from both the sides, except highlighting the contents by both the parties in their respective written submissions and reliance respectively by both the parties on different cases, there was hardly anything left to be mentioned on their respective sides. The learned counsel for the assessee was very anxious that the entire written submission given by him should be considered and since the same find place above, the submissions of the learned senior departmental representative are also placed above.
4. After taking into consideration the rival written submission made by both the parties and their respective arguments, we are unable to accept the preliminary objection of the learned counsel for the assessee and direct the revenue to file proper application afresh within 15 days from the receipt of this order. There is no controversy about the fact that on the form of application, relevant section of gift-tax pertaining to reference to the High Court is missing and instead Section 256(1) is mentioned which is in respect of reference to the High Court under the income-tax matters. The heading is also the CIT v. Assessee. The form is also one which is prescribed under the Income-tax Act/Income-tax Rules, 1962. But there is no controversy about the fact that the said application is signed by CGT and so are the statement of facts. This is also a fact that the Commissioner of Income-tax Shri Balwant Singh is the Commissioner of Gift-tax. Apparently from the abovestated uncontroverted facts, it appears that it is a mistake inadvertently committed by the revenue.
5. Coming to the case law cited by both the parties, we find that a case applicable on all fours is given by the learned senior departmental representative which directly hits the preliminary objection of the assessee. We shall be failing in our duty in case we don't deal with each and every case cited by the two parties and, therefore, first of all we come to the Punjab High Court decision in Madan Lal's case (supra). We are of the view that the same is distinguishable from the facts of the instant case. In that case reference application under Section 66(2) of the Indian Income-tax Act, 1922 was to be filed against the Commissioner of Income-tax but the assessee had named the Tribunal as the sole respondent. In that case, while not condoning the period of limitation, their Lordships held as under:
... that as the only party who should have been named as the respondent was not so named the application originally filed was meaningless, and as no satisfactory explanation was given for the mistake the period of limitation could not be extended. (p. 447) In the instant case, the Commissioner of Income-tax and the Commissioner of Gift-tax is one and the same person Shri Balwant Singh. The mistake, according to us, is not as damaging as it was in the said case of Madan Lal (supra). Coming to another Punjab High Court decision in R.B.L. Banarst Dass & Co. Ltd.'s case (supra), on which reliance was placed by the learned counsel for the assessee, we are of the view that this case does not lend any support to the assessee's contention. In this case, assessment was framed by the ITO at Amritsar whereas appeal to the Tribunal was filed by the ITO at Delhi. Here, it was held by the High Court that this matter pertains to the proper presentation of the appeal and goes to the very root of the case. In the instant case, it is not that a different person than the Commissioner of Income-tax-cum-Com-missioner of Gift-tax has filed the reference application. The instant case is more alike another Punjab High Court decision in Gian Chand Vir Bhan's case (supra) with which we will be dealing hereafter. Reliance of the learned counsel for the assessee on the Tribunal's decision in Arvind Construction Co. (P.) Ltd.'s case (supra) is also misplaced. In that case, the facts in the background were that the Tribunal's order was delivered on 19-6-1984 and the Commissioner's jurisdiction was transferred under Section 127 of the Income-tax Act with effect from 1-8-1984 and it was a matter in respect of condonation of delay. Reliance of the learned counsel for the assessee on this case is misplaced apparently due to distinction in facts. Next case is that of the Allahabad High Court in Sant Baba Mohan Singh's case (supra), on which reliance was placed by the learned counsel for the assessee. In this case, it was held that assessment proceedings were a nullity as the ITO had no jurisdiction ab initio to take the proceeding. Their Lordships held as under :
... A proceeding is a nullity when the authority taking it has no jurisdiction either because of want of pecuniary jurisdiction or of territorial jurisdiction or of jurisdiction over the subject-matter of the proceeding.... (p. 197) In the instant case again the facts are different. The gentleman signing the reference application did have the jurisdiction as the Commissioner of Gift-tax and he signed the same as such. He also signed the statement of facts as the Commissioner of Gift-tax. This case also, therefore, does not support the contention of the learned counsel for the assessee.
6. Coming to the improper form the learned counsel for the assessee had relied on the Privy Council's decision in Trustees Corpn. (I.) Ltd.'s case (supra) in which it was held that:
Before a question is entertained by the High Court under Section 66 of the Income-tax Act, the preliminary statutory requirements thereunder must be strictly complied with.
In this very case, it was further observed that :
The stringency of these requirements is clearly deliberate. It is the intention of the enactment that the High Court is not to be flooded with such applications.
The form in the instant case is undoubtedly under the Income-tax Act. In the instant case, there is no controversy about the fact that the Tribunal never returned the said reference application to the applicant, as per Rule 37 of the Income-tax (Appellate Tribunal) Rules, 1963, which is in respect of procedure under Section 256(1) and in which Rule 12 of the said Rules with other rules has been made applicable mutatis mutandis and the said Rule 12 reads as under :
The Tribunal may reject a memorandum of appeal, if it is not in the prescribed form or return it for being amended within such time as it may allow. On representation after such amendment, the memorandum shall be signed and dated by the officer competent to make an endorsement under Rule 7.
Reliance of the learned counsel for the assessee in the case of CIT v. Jiwajirao Sugar Co. Ltd. [1969] 71 ITR 319 (MP) also apparently becomes misplaced. As per the said case, it is held that:
... Before a reference can be made, there must be an application which is made within the period of limitation prescribed by Section 66(1) . .. the application itself has to be made in the form prescribed by Rule 22A of the Income-tax Rules, ...(p. 320) This cannot be read in isolation as there is a prescribed rule, extracted and placed above, providing amendment of wrong forms, which was not done in this case by the Tribunal's office. The Calcutta High Court decision in the case of CIT v. A.K. Das [1970J 77 ITR 31 is on period of limitation. In that case, it was held that :
... if there be no application in the prescribed form within the period of limitation mentioned in Section 256(1) read with the proviso, the Appellate Tribunal cannot entertain any other application to make a reference to the High Court ... (p. 39) This case, to some extent, in the first reading seems to lend support to the assessee's contention-but firstly it is in respect of condonation of delay and secondly there is a Punjab High Court decision in Gian Chand Vir Bhan's case (supra), with which we will be dealing hereafter which on all fours supports the contention of the learned departmental representative. However, the learned counsel for the assessee submitted that even Section 41C of the Gift-tax Act, 1958 cannot come to the rescue of the revenue. In this connection, he relied on the Tribunal decision in the case of ITO v. Smt. Kamla Vati [1980]9 TLR 106 (Asr,). In that case, it was dead person against whom the appeal was filed and then this mistake was considered to be fatal and the appeal was held a nullity. The facts of the instant case are apparently different. It is not an non est person who has signed. It is the same person who is the Commissioner of Gift-tax and also the Commissioner of Income-tax. He has signed as CGT. Only in the heading of the application, it is written CIT v. Assessee. This mistake, according to us, is rectifiable. In the course of arguments, reliance was also placed on the Lahore High Court decision in Dhanpat Mal Diwan Chand's case (supra). By reading the facts of the said case, it becomes apparent that it was just distinguishable because in that case in the first appeal certain issues were decided by the AAC and on certain report was asked for from the ITO. After the remand report, when the AAC decided those issues on which remand report was demanded the appeal was filed and in respect of first ground which was held by the AAC against the assessee, additional grounds were raised. In respect of this application, it was held that it was not in the prescribed form of appeal and was not accompanied by a fee of Rs. 100. In this case, it was held by their Lordships that :
The Tribunal had the discretion to reject the application even if it could be treated as a memorandum of appeal. (p. 357) Instant case is not that of ordinary application. It was an application which was made by the Commissioner of Gift-tax, as duly signed by him, relevant contents pertained to the gift-tax matter but it was mentioned under the Income-tax Act and from the side of the Commissioner of Income-tax. This is clearly distinguishable, according to us. Similarly, in respect of Section 41C, our attention was also drawn to the Nagpur Bench decision in the case of Laxmi Bank Ltd. v. Second ITO [1985] 12 ITD 175. In that case, it was held that the order of penalty under Section 273(2)(a) of the Income-tax Act could not be sustained when show-cause notice was in respect of Section 273(2)(aa). In this case, it was held by the Tribunal that the mistake to be rectified should be casual to fall within the ambit of that section, i.e., Section 292B of the Income-tax Act. In the instant case, the learned counsel for the assessee submitted that 'casual' means once in a while but the department is committing this sort of mistake day in and day out was his submission. We are not in agreement with the learned counsel for the assessee because 'casual' as per Oxford Dictionary means-accidental, irregular, undesigned, unmethodical, careless, unceremonious-and, if that wide is the definition, this rather supports the contention of the revenue. According to the Chambers Dictionary, meaning given by the learned counsel for the assessee himself is 'mistake' means 'a taking or understanding wrongly'. Under the circumstances, the mistake should have been got rectified by the Tribunal. Regarding the notice which was not signed by the ITO, it was held by the High Court to be invalid in Umashankar Mishra v. CIT [1982] 136 ITR 330 (MP), distinction is more than clear because here the reference application is duly signed and by the right petition. Similarly, reliance is also misplaced on CIT v. Smt. Phoolmati Devi [1983] 144 ITR 954 (All.), where notice was issued to the father on behalf of the minor instead of having been issued to the mother.
7. After we have met the catena of judgments relied upon by the learned counsel for the assessee, we now come to the Punjab High Court decision in Gian Chand Vir Bhangs case {supra) which, according to us, is applicable to the instant case on all fours in favour of the revenue. In this case, Mr. V was member of the HUF and also a partner of the firm. V signed the memo of appeal as a karta of the HUF whereas the appeal was preferred by the firm and he should have signed it as a partner. The Tribunal dismissed the said appeal as incompetent on the ground that he did style himself as a member of the firm. Their Lordships of the High Court held as under :
... that whether as representative of the family or as representative of the firm, V was competent to prefer the appeal before the Appellate Tribunal. As the memorandum of appeal was signed by V, who was competent to sign it in either capacity, the Tribunal was wrong in dismissing the appeal in limine. At the worst, the words describing V as a member of the firm could only be deemed to be a misdescription and for such a misdescription the right of appeal could not be taken away. (p. 415) From the above finding, it is clear that this case is applicable in the instant case on all fours, as abovesaid. On the other hand, the instant case is on stronger footing. Shri Balwant Singh who is the Commissioner of Gift-tax preferred reference application under the Gift-tax Act, signed it as such with statement of facts, but on the heading of the application it was mentioned Commissioner of Income-tax and also the form was under Section 256(1) instead of relevant section under the Gift-tax Act. Even, misdescription on the heading or section could not be fatal to the revenue's case. The Allahabad High Court decision in Behari Lal Laxminarain v. ITO [1960] 39 ITR 649 regarding the prescribed form, also supports the contention of the revenue. In that case, the memo of appeal was found to be defective inasmuch as, it was not in the prescribed form and was not filed in triplicate. It was neither rejected nor returned, but the defects were pointed out to the assessee who rectified the defects and filed a proper memorandum in triplicate subsequently with an application for admission of the appeal. The Tribunal admitted the same and the High Court held that the said appeal was not out of time. In the instant case, the defect was undoubtedly pointed out to the learned senior departmental representative on earlier hearing but as he admitted in the open Court, it was due to his mistake that proper application could not be filed duly signed by the right authority under the right caption in the right and prescribed form because of his mistake. Day in and day out, benefits are granted to the assessees as they are not required to suffer due to mistake of lawyers, once in a while the departmental representative has committed a mistake which he admits as a gentleman in the Court, the revenue should not be made to suffer due to mistake of its representative. The Patna High Court in the case of Gouri Kumari Devi v. CIT [1959] 37 ITR 220 held on the facts of the case where a memorandum of appeal signed by the power of attorney agent was originally presented in time but when after the period of limitation had expired and it was subsequently amended by filing a fresh memorandum of appeal signed by proper appellant, it was held that there was a proper appeal presented before the Tribunal and the appeal could not be dismissed on the ground that it was barred by time. In the light of this judgment, we have granted a period of 15 days to the revenue to file the fresh application in correct form and correct heading while disposing of preliminary objection against the assessee and keeping our order on reference application pending. The Orissa High Court again held in the case of Addl. CIT v. K. Padmalochan Sahu [1974] 95 ITR 113, where memo of appeal by the assessee-HUF not signed by karta could be allowed to be rectified, their Lordships held that :
... in an appeal by a Hindu undivided family should be signed by the karta of the family is mandatory, but any illegality should be allowed to be rectified by giving proper opportunity to the assessee. (p. 114)
8. In the light of above discussion, we dismiss the preliminary objection of the assessee and direct the revenue to modify the reference application within 15 days from the date of receipt of this order, which will be heard on merit, if and when the same is received.