Gujarat High Court
Rajendrakumar Maneklal Sheth (Huf) vs Commissioner Of Income-Tax on 25 November, 1994
Equivalent citations: [1995]213ITR715(GUJ)
Author: M.B. Shah
Bench: M.B. Shah, N.N. Mathur
JUDGMENT M.B. Shah, J.
1. The Income-tax Appellate Tribunal Ahmedabad Bench "B", has referred the following questions of law for opinion of this court under section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") :
"1. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in setting aside the order of the Appellate Assistant Commissioner ?
2. Whether on the facts and in the circumstances of the case the Tribunal was justified in law in giving certain directions to the Appellate Assistant Commissioner that it gave in its appellate order ?
3. Whether, on the facts and in the circumstances of the case the Tribunal was justified in reversing the order of the Appellate Assistant Commissioner exercising his discretion to admit or not to admit the appeal for adjudication ?"
2. At the time of hearing of this reference learned counsel for the parties submitted that if question No. 3 is decided in favour of the assessee, questions Nos. 1 and 2 would not be required to be decided. Therefore, first we would decide question No. 3.
3. In the present case, the controversy pertains to the order passed by the Appellate Assistant Commissioner of Income-tax, Ahmedabad Range VI, in Appeal No. IT/CC.I/21 of 1975-76 filed by the applicant, Rajendrakumar Maneklal (Hindu undivided family Ahmedabad), with regard to the order passed for the assessment year 1972-73. Before the appellate authority, it was contended by the Income-tax Officer, by filing written objections on January 3, 1977, against entertaining the appeal, that the appeal was not properly field by the appellant as the appeal from did not bear the signature of the applicant and was not signed by him but signed by somebody else. To that objection, the applicant contended that the appeal form really bore his signature and even if it was considered that the appeal from was not signed by him he should be permitted to submit a revised appeal in Form No. 35 duly signed by him. Subsequently, along with the signature, a revised appeal in Form No. 35, duly signed by him, was submitted to the appellate authority and condonation of delay in filing the appeal prayed for.
4. Thereafter, after considering various decisions cited before him the appellate authority arrived at the conclusion that with the revised appeal memo duly field by the appellant, the Income-tax Officer's objection to entertain the appeal has to be overruled and he admitted the appeal for adjudication by condoning the delay. That order was passed by him under section 249(3) of the Act. Thereafter, the appeal was decided by him on the merits and was treated as allowed by order dated January 17, 1978.
5. Against that order, the Department field an appeal before the Tribunal and contended that as the appeal form was not signed by the applicant, the appellate authority was in error in overruling the objection of the Income-tax Officer about the appeal being filed beyond the time, and allowing to file the same without giving a finding as to whether the signature on the memo of appeal was that of the assessee and/or whether someone else signed the memo of appeal in the name of the assessee. The Tribunal accepted the said contention raised by the Department and remanded the matter to the appellate authority with a direction to get the disputed signature examined by a handwriting expert and to find whether the signature on the memo of appeal was that of the assessee or someone else.
6. Against that order, the assessee sought reference and the Tribunal has referred the aforesaid questions.
7. In our view, considering the order passed by the Appellate Assistant Commissioner, it is apparent that the appellate authority has felt that the delay was required to be condoned considering the various judgments which were cited before him, particularly, in view of the fact that the assessee has submitted a revised appeal memo duly signed by him and has prayed that the delay, if any be condoned. This may impliedly mean that the first appeal memo was not duly signed by the applicant. In such circumstance, when the appellate authority considered the fact that the revised appeal memo was submitted by the assessee and after considering various decisions, it thought that it was a fit case for condoning the delay as the Department is not likely to suffer any loss or prejudice. The Appellate Assistant Commissioner has exercised his discretionary jurisdiction and has condoned the delay and admitted the appeal for adjudication on the merits under section 249(3) of the Act. For condonation of delay, he has considered the facts stated by the applicant and also the case law cited before him. Further, by admitting the appeal for adjudication on the merits, the Department is not likely to suffer any loss or prejudice, Hence, it cannot be said that the discretionary power exercised by the appellate authority in curing the so-called irregularity with regard to the signature on the appeal memo, calls for any interference by the Tribunal, particularly when the fresh appeal memo duly signed by the applicant was submitted before it.
8. In the view of the matter, in our view, the Tribunal was not justified in reversing the order of the Appellate Assistant Commissioner exercising discretion for adjudication of the matter, Hence question No. 3 is answered in the "negative".
9. In the result, question No. 3 is answered in the negative in favour of the assessee and against the Revenue. As question No. 3 is answered in favour of the assessee, questions Nos. 1 and 2 are not required to be answered and are left unanswered, Reference stands disposed of accordingly.