Law:

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Rule 45(2)(b) of the Income-tax Rules, 1962 - Form of Appeal - Whether provisions of Rule 45(2)(b) are mandatory and where appeal not signed by karta of assessee - HUF, such defect should be treated as an illegality for which an opportunity should be given for rectification - Held, yes FACTS The assessee - HUF was consisting of father and son. The assessee filed an appeal before the AAC. The appeal petition was not signed by any member of HUF but was signed by the authorised representative. The AAC issued a show cause notice as the appeal was defective. The assessee filed a fresh appeal duly signed by the son. As the appeal was not signed by the Karta the AAC dismissed the same. On appeal, the Tribunal held that a further opportunity should be given to the assessee to rectify the defect, that is to say, to allow the karta of the family to sign the memorandum of appeal and thereafter two dispose of the appeal in accordance with law. On reference: HELD Rule 45(2)(b) prescribes in unequivocal terms that the memorandum of appeal in Form No. 35 should have been signed in this case by the karta of the family which was, in fact, not done. The subsequent rectification when another appeal was filed did not conform to the rules inasmuch as the son, was not the karta of the HUF. It was, therefore, clear that the required rule was not complied with by the assessee in filing the memorandum of appeal. That rule is mandatory in the sense that the karta must sign the memorandum of appeal. Following the decisions in the case of Sheonath Singh v. CIT [1958] 33 ITR 591 (Cal.) and Anirudha Bhaera v. Dhanu Behara I.L.R 1961 Cut. 430, it was to be held that the first and the second appellate authorities would, treat such defect as an illegality for which opportunity should be given for rectification. If after opportunity was given the assessee still did not remove the defect, then clearly the rule would operate and the memorandum of appeal is liable to be dismissed. It is in that sense that the law becomes mandatory at that stage. Note - The case has been decided in favour of the assessee. CASES REFERRED TO Sheonath Singh v. CIT [1958] 33 ITR 591 (Cal.) and Anirudha Behera v. Dhanu…

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