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I.T.A. No. 173/LB of 1986-87, decided on 13th May, 1987.
---R. 34--Civil Procedure Code (V of 1908), O. VI, R. 15---Assessee outside the country- -Counsel representing assessee right from the stage of the assessing officer--counsel possessing information and belief--Verification of memo of appeal by such counsel- Validity-Signing of the memo. of appeal and verification by counsel for the assessee on his behalf, held, was legal being in conformity with R.34, Income-tax Rules.
Signing of the memo. of appeal as well as verification by an Advocate of an assessee would be sufficient to make the memo. of appeal sustainable in law. Since the verification is to be made on the basis of information and belief, as against verification on the basis of personal knowledge, under Rule 34 of the Income-tax Rules. Therefore, any person who is in a position to verify it on the basis of such information and belief is competent to sign it for and on behalf of the appellant as well. On reading Order VI, Rule 15 of the Civil Procedure Code, 1908, it appears that the verification in case of pleadings under Civil Procedure Code is to be either on the basis of personal knowledge of a person or on the basis of information received and believed to be true. Where any verification is to be made on the basis of the personal knowledge of the appellant, it could be signed by the appellant himself and none else. However, where verification is to be made on the basis of information and belief any one who has got that information and belief could sign it. Since counsel has been representing the appellant right from the stage of the Assessing officer, he has been possessed of all the relevant information, which was required for verifying the appeal. As far as his right to sign for and on behalf of the appellant is concerned, it is surely not to a doubted. Had he not been authorised by the appellant, the CIT(A) might have taken this objection at the first instance, The fact that the appellant has brought second appeal before the Tribunal shows that he has actually authorised his counsel to prefer an appeal and sign and verify it on his behalf as he was outside the country. In the case of an individual the appeal could be signed and verified by an individual himself or by his agent in view of the principle of agency established by various legislations which authorise an individual to appoint someone else his agent for various purposes including for purposes of instituting and conducting proceedings in a Court of law or quasi-judicial authority.
The memorandum of appeal was rightly signed and was legally sustainable.
Zia H. Rizvi for Appellant.
M. Sarwar Kh. AC/D.R. for Respondent.
Date of hearing: 12th May, 1987.
--In this appeal quite interesting point of law has arisen.
2. An appeal was filed before learned CIT(A) purporting to be an appeal filed by the appellant, an individual, relating to assessment year 1982-83 against the assessment order framed under section 62 of the Income-tax Ordinance, 1979. The learned CIT(A) alter perusing it found that it was not verified according to the Income-tax Rules. He, therefore, on 28th April, 1986 addressed a letter to the appellant in the following words:--
"It has been noticed that appeal memo. of your appeal against assessment order for 1982-83 was signed by one Mr. Iqbal Ahmad, Advocate. In the Income-tax Rules there is a specific obligation of an appellant to sign the appeal memo, himself. You are, therefore, requested to please let me know why your appeal should not be dismissed on the basis of this technical defect in your appeal. If there is any case law, which favours you on this issue, the same may be brought to my notice.
Your reply should be filed by 18th May, 1986."
3. It appears that a detailed reply was filed before learned CIT(A) in which various Rulings from various High Courts as well as from this Tribunal were discussed. The learned CIT(A), however, was pleased to dismiss the appeal on 31st May, 1986 with the following observations:
"Appeal memo. in this case was signed by one Mr. Iqbal Ahmad, Advocate assessee's A.R. However, he was not specifically authorised to sign the appeal memo. An objection was raised to which the assessee replied that this was a mere irregularity. Provisions of C.P.C. were quoted alongwith certain reported decisions. But one point is quite clear that such an irregularity could be cured only when signatures of the memo. of appeal were made by the appellant himself even after the filing of an appeal. This has not been done by the assessee till this date. The appeal is, therefore, not valid and is rejected."
Having been aggrieved and dissatisfied, the appellant has come up in second appeal before us.
4. Mr. Zia H Rizvi, the learned counsel for the appellant, produced before us not only the letter of learned CIT(A) dated 28th April, 1986 but also the appeal form as well as his reply to the aforesaid letter of learned CIT(A). He further produced before us photostat copies of the Passport of the appellant to show that he was outside the country when the appeal was filed. On the basis of this material, he contended that the learned CIT(A) was in error in rejecting the appeal on this technical ground. He pointed out that since the appellant was outside the Country, therefore, the prescribed form of appeal was signed by his Advocate. He further contended that if the learned CIT(A) thought that the illegality could have been cured by the signatures of the appellant to be affixed thereon, subsequently, then he should have called upon him to do so which he did not Though in his order he has mentioned that the defects could have been cured had the appellant signed the prescribed form of appeal himself. Mr. M. Sarwar Kh. the learned D.R. however, has vehemently contested the submission of Mr. Zia H Rizvi. He also relied upon a decision of Karachi High Court reported as 1987 CLC 367, Abubakar Saley Mayet v. Abbot Laboratories and PLD 1971 SC 550, Iftikhar Hussain Khan v. Meiz Ghulam Nabi Corporation. According to him, if the appeal filed was not in conformity with the prescribed Rules, the defect was incurable as it was held to be a nullity in the eye of law,
5. We have heard both the learned counsels for the appellant as well as learned D.R. at length. Since the learned CIT(A) has referred to the Income-tax Rules, therefore, we should start with them
6. Rule 34 of the Income-tax Rules framed under repealed Income-tax Act has laid down that an appeal u/s 30 shall be in the following form and be verified in the manner indicated therein. Thereafter, the form of the Appeal to the Appellate Assistant Commissioner has been laid down which is as under:--
In the Office of the Appellate Assistant Commissioner of Income- - -tax - - - -Range
------------------------------------------------ ------------------------------------------------------
Circle of Assessment
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Name of the Appellant, and, in the case of a firm, also the names of its partners
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Assessment year and in the case of an assessment under section 34 of the Income-tax Act 1922, the year in which the income should have been assessed. --------------------------------------------------------------------------------------------------------
Income-tax Officer passing the Order
Section of the Income-tax Act, 1922 under which the Income-tax officer passed the order
----------------------------------- ------------------------------------------------------------------
Income assessed
---------------------------------------------------------------------------------------------
Tax demanded
Income-tax
Super-tax
Total
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Date of service of the Order appealed against or of the notice of Demand. -----------------------------------------------------------------------------------------------------
Address to which the notices may be
sent to the Applicant.
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Relief claimed in Appeal.
------------------------------- ----------------------------------------------------------------------
1. Grounds of Appeal.
2.
3.
4.
-------------------------------------------------- ---------------------------------------------------
Signed.
(Appellant)
Name in Block letters------------------------
Address ....................
Verification.
I------------------------------------the appellant, do hereby declare that what is stated above is true to the best of my information and belief .
Signed............
Name in Block letters ......................
Address.................................
N.B.(i) The appeal petition should be filed in duplicate.
(ii) The appeal petition should be accompanied by the Notice of Demand or the copy of the order appealed against.
(iii) The form of appeal and verification form appended thereto shall be signed--
(a) in the case of an individual, by the individual himself;
(b) in the case of a company or local authority, by the Principal Officer;
(c) in the case of a firm, by a partner;
(d) in the case of any other association, by a member of the association; and
(e) in the case of a Hindu undivided family, by the Manager or Karta;
(iv) If any consequential relief under Business Profits Tax Act is claimed as a result of relief in the income-tax appeal, a separate appeal under the Business Profits Tax Act should be filed."
7. From the perusal of this form, it appears that at the bottom there is a place for verification to be signed by an appellant. It further appears that note (iii)(a) shows that the verification form, in the case of an individual, was to be signed by the individual himself. Now if we peruse the form of appeal produced before us it appears that it has been signed alongwith the verification by someone for Sardar Aleem (the appellant who carried on the business under the name and style of M/s Barlex Agencies). From letter and order of the learned CIT(A) it appears that it has been signed by Mr. Iqbal Ahmad, Advocate for the appellant. The precise question, therefore, is as to whether the signing of the memo. of appeal and verification by the counsel for the appellant on his behalf is legal being in conformity with Rule 34 as mentioned above
8. We have given our serious consideration to this question and are of the view that signing of the memo. of appeal as well as verification by an Advocate of an assessee would be sufficient to make the memo. of appeal sustainable in law. Our reason is that since the verification is to be made on the basis of information and belief, as against verification on the basis of personal knowledge, under Rule 34 of the Income Tax Rules. Therefore, any person who is in a position to verify it on the basis of such information and belief is competent to sign it for and on behalf of the appellant as well. If we peruse Order 6 Rule 15 of the Civil Procedure Code it appears to us that the verification in case of pleadings under Civil Procedure Code is to be either on the basis of personal knowledge of a person or on the basis of information received and believed to be true. We think that where any verification is to be made on the basis of the personal knowledge of the appellant, it could be signed by the appellant himself and none else. However, where verification is to be made on the basis of information and belief any one who has got that information and, belief could sign it. Since Mr. Iqbal has been representing the appellant right from the stage of the Assessing Officer, he has been possessed of all the relevant information, which was required for verifying the appeal. As far as his right to sign for and on behalf of the appellant is concerned, it is surely not to be doubted. Had he not been authorised by the appellant, the learned CIT(A) might have taken this objection at the first instance i.e. in his letter dated 28-4-1936. The fact that the appellant has brought second appeal before us shows that he has actually authorised his counsel to prefer an appeal and sign and verify it on his behalf as he was outside the country. We are, therefore, of the view that in the case of an individual the appeal could be signed and verified by an individual himself or by his agent in view of the principle of agency established by various legislations which authorise an individual to appoint someone else his agent for various purposes including for purposes of instituting and conducting proceedings in a Court of law or quasi-judicial authority.
9. As far as the cases relied upon by the learned D.R. are concerned, they are distinguishable on the ground that in both the cases the plaints were signed by an unauthorised persons for and on behalf of Corporations. 1t is established law that the Corporation being a juristic person requires a Board of Directors to act. As such whenever a suit is to be instituted or defended by a Corporation, a resolution is passed to that effect and someone is authorised to sign the plaint or other relevant documents. In this appeal, however, it is an individual who has authorised his counsel to sign and verify his memorandum of appeal.
10. In view of the discussion made above and in the facts and circumstances of this appeal, we think, that the memorandum of appeal was rightly signed and was also legally sustainable. The order of learned CIT(A) is therefore, vacated and the matter is sent back to him with the direction that he should record his findings on all the issues involved in the appeal on merit.
M.B.A./397/ T Order accordingly.
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