Law: Income Tax Act, 1961

Section: 253

Section 253 of the Income-tax Act, 1961 - Appellate Tribunal - Appeals to - Assessment year 1947-48 - Whether failure of assessee to sign memorandum of appeal is a mere irregularity and not illegality - Held, yes - Whether such irregularity can be rectified by an amendment and amendment would take effect from date memorandum of appeal was originally filed - Held, yes FACTS The assessment of the assessee was completed by the ITO. On appeal, the order of assessment was confirmed by the AAC. Thereafter the assessee preferred an appeal to the Tribunal. The memorandum of appeal was not signed by the assessee herself but by one 'P', who had the general power of attorney dated 5-1-1952 on behalf of the assessee. When the appeal was taken up for hearing, an objection was taken by the Department that the appeal was not maintainable as it was not signed by the assessee herself. That objection was accepted by the Tribunal, on the ground that there was no power granted to 'P' for signing the memorandum of appeal to the Tribunal by the power of attorney dated 5-1-1952. The appeal was accordingly rejected by the Tribunal. On reference: HELD Having perused the relevant clauses of the power of attorney dated the 5-1-1952, the contention put forward on behalf of the assessee must be accepted as correct and it must be held that the power was granted under the document to 'P' to file an appeal before the Tribunal and also to sign the memorandum of appeal. Even assuming in favour of the Department that the power of attorney did not enable 'P' to sign the memorandum of appeal, still the failure of the assessee to sign the memorandum of appeal was a mere irregularity and not an illegality, and the Tribunal should have allowed the petition of the assessee filed for amending the memorandum of appeal and affixing her signature thereto. Any irregularity of the assessee in not signing the original memorandum of appeal could be rectified by an amendment, and the amendment would take effect from the date the memorandum of appeal was originally filed. For these reasons it was held that in the facts and circumstances of the case the signature of 'P' in the memorandum of appeal as duly…

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