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I.T.A. No. 62o3/ LB of 1985-86 decided on 6th July, 1987.

---Ss. 55 & 2(41) Income-tax Rules, 1982, R.190--Return- Requirement of signatures on--Space provided in Pro Forma Return for signatures--Significance--Filing of Voluntary Return by assessee- Assessee not disputing filing of Return and joined assessment proceedings and also agreed to be assessed at a particular income--Such assessee cannot, subsequently, plead that return filed by him, having nut been signed by him was invalid--Mere non-signing of Return by assessee was only an irregularity which was curable--[Commissioner of Agricultural Income-tax, West Bengal v. Sri Keshab Chandra Mandal (1950) 18 I T R 569 dissented from].

Commissioner of Agricultural Income-tax, West Bengal v. Sri Keshab Chandra Mandal (1950) 18 I T R 569 dissented from. Muhammad Hanif v. Jia Bibi P L D 1963 A J & K 81 ref.

Khurshid Ahmed for Appellant.

Nazir Ahmed Saleemi, A.C./D.R. for Respondent.

Date of hearing: 13th July, 1987.

This is an appeal filed by an individual deriving income from letting out of tents, crockery and other allied items and relates to the assessment year 1985-86.

2. Brief facts of the case under which this appeal has arisen are that the assessee filed a return under SAS which was selected for detailed scrutiny. Subsequently relevant notices were issued to the assessee, which were complied with and the assessee as well as his counsel has been appearing before the assessing officer on various dates. During the course of proceedings, the assessee agreed to be assessed at a net income of Rs.40,000/- for the assessment year under consideration which was duly accepted by the I,Y 0 and as a consequence income was assessed at Rs.40,000. The assessee however, filed an appeal before the learned A.A.C. against the assessment and pleaded that he did not file any return nor any agreement was made by him inasmuch as the return was not signed by him. It was however, admitted before the learned A.A.C. that he had affixed his thumb impression on the agreement which was signed by the A.R. of the assessee.

3. It was contended by the learned counsel that no valid return had been filed in the eyes of law because it was unsigned return and that the assessee being an illiterate person was not aware of the income assessed and tax levied on him. It was however conceded before me that the return had been filed but being unsigned, it was not a valid return and no assessment could be made on the basis of an invalid return the learned counsel has relied upon the case of commissioner of Agricultural Income-tax West Bengal v. Sri Keshab Chandra Mandal reported as (1950)-18-ITR-569 decided by the Indian Supreme Court.

4. The learned D.R. on the other hand contended that the return filed was a valid return as the factum of filing of return has not been disputed. It was contended that the assessee cannot take advantage of his own fault particularly when the assessee had joined the assessment proceedings and made an agreement which was duly thumb marked by him and also signed by his A.R.

5. I have considered the arguments and have carefully gone through the facts of the case. Before proceeding further it would be relevant to first examine the relevant law on the point. Sections 55 of the I.T. Ordinance provides for filing of voluntary return by an assessee and it is under this section that the assessee filed his return. This section provides that a return of total income has to be filed by every person in the given circumstances. The 'return of total income' has been defined a/s 2(41) of the Ordinance which) reads as follows:

"return of total income" means the return of total income in the prescribed form, setting forth such particulars ;and accompanied by such statements certificates and other documents, and verified in such manner, as may be prescribed:" '

6. This definition lays down that the return had to be filed in the prescribed form which has to be verified as prescribed. It however does not lay down that it should also be signed. Section 165 of the I.T. Ordinance empowers the CBR to make Rules for carrying out the purposes of the Ordinance. Under these rules the C.B.R. framed flutes on 26th June, 1982. Rule 190 of these Rules has prescribed the form in which the return of total income has to be filed. This rule is reproduced below:

. (1) The return of total income required to be furnished under section 55 shall in the case of persons deriving incomes under the Heads specified in section 15, where income, from salary constitutes more than 50 per cent of the total Income, shall be in the following form and shall be verified in the manner and accompanied by tile statements and certificates indicated therein, namely:---

From this rule it is clear that it prescribes the form and has to be verified in a particular manner but does not lay down that it should also be signed. However in the pro forma itself under various columns spaces for signature have been provided, meaning thereby that the assessee filing return has to sign. It may be noted that such signatures are not required to be made under rule 190 itself. Therefore the spaces provided in the pro forma for signature can he said to be beyond rules. The prescribed form is divided into various parts. In part I description of income has to be given. In part II the income, which is claimed to no exempt has to be given. Part III is divided into three sections a, b and c. Prescribing the computation of income for individual. A.O.P.U.R.F. and H.U.F. and b for registered firms only and c for companies. Part IV to be completed by the firm and A.O.P. in which the exception of shares and profits etc. has to be given. After part IV form of verification has been provided. After the prescribed pro forma for verification three notices have been given. Note 2 reads as under:

2. The verification should be signed:-

a. In the case of individual, by the individual himself:

b ..........

c ..........

d. ..........

e ..........

f. ..........

7. Now from the perusal of the above rules and pro forma as well as the definition of the return of total income it is clear that it is nowhere provided by law that return should be signed though in the pro forma of the return at various places the space for signature has been provided. The only requirement of law is that it has to be verified in the prescribed manner. It has not been provided as to who has to sign the verification though in the note given under the verification it has been so provided. First of all it has to be seen as to what is the value of a note given in the prescribed pro forma. Obviously this is not the part of the pro forma nor part of the rule prescribing the pro forma for the return. This can be at best guideline for the assessee as to how the return is to be filled in and who has to sign the pro forma. Therefore if there is any violation to follow this guideline it cannot be said that such a violation would be a violation of law. The learned counsel has relied upon the case referred to above. In that case the facts were different. In that case under the Bengal Agricultural Income-Tax Act, 1944 an illiterate assessee had signed the return by the pen of his son and it was held under the circumstances of that case that the return was not validly filed. With respect, the view taken by the Indian Court is not correct. The learned Judges did not take note of the fact, as in the present case that it was not the law, which had prescribed the mode of signature of the assessee. It was only the footnote, which prescribed the manner in which a particular person had to sign. The learned Judges assumed that the footnote was part of the statute, which, in my humble opinion, cannot be. Even otherwise the rules only prescribed that return had to be verified in the prescribed manner but that has not been provided in the form but only in the footnote.

8. It is therefore evident that there has not been any violation of statutory provisions because footnote being only a guileline, cannot be taken as part of the statute. At best a return which has not been signed could be an irregularity which can always be cured, As stated above, the factum of filing of return has not been disputes: by the assessee, Such a return cannot be called an invalid return merely because the assessee himself had defaulted and wants to take advantage of his own fault. Even otherwise, the assessee is stopped to farce such a plea because he had all along been taking part in the assessment proceedings and finally agreed to be assessed at a net income of Rs.40,000. This agreement is duly thumb-marked and also signed by the A.R. The Assessing Officer also accepted the offer made by the assessee. I would gather support from Muhammad Hanif v. Jia Bibi reported as P L D 1963 AJ&K 81. The facts were slightly dissimilar but the principle laid down is fully applicable or the facts of the present case. In that case the appeal made, was unsigned which was held to be validly filed by the Court and it was held to be a mere irregularity. I, therefore hold that non-signing of the return was only an irregularity which was curable and in view of the tact that the assessee did not dispute the filing of the return and joined the assessment proceedings and also agree to be assessed at a particular income it cannot be subsequently pleaded by the assessee that the return filed by him was invalid because it was not signed by him, I, therefore see no force in this appeal which is dismissed.

M.B.A./141/T Appeal dismissed.

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