dedol-hf/india-case-legal-rag huggingface dataset:
"Sri Keshab Chandra Mandal."
    On  the  18th April, 1945,  the  Agricultural  Incometax
Officer  noted  on the order sheet that the  case  would  be
taken  up  at  Bankura Dak Bungalow on 6th  May,  1945,  and
directed  the office to inform the party to appear with  all
settlement records, vouchers etc. On the 6th May, 1945,  the
assessee filed a petition before the Agricultural Income-tax
Officer  who had gone to Bankura stating inter alia that  he
had  been  advised that the return which  he  had  submitted
before under the advice of a Headmaster of a school was  not
a proper return, that there were many mistakes in the return
and many things had been omitted and that, therefore, it was
absolutely  necessary for him to submit a fresh  return  and
praying for fifteen days' time for doing so and
   437
also  for  a form of return.   This petition was  signed  in
vernacular as follows :--
"Sri Keshab Chandra Mandal x
Ba:  Sri Jugal Chandra Mandal" Below that was the  signature
of his pleader H. Nandi.  With this petition was attached  a
Vakalatnama signed in vernacular in the manner following:
"Sri Keshab Chandra Mandal x
Ba:  Sri Jugal Chandra Mandal of Balya." It will be  noticed
that in both the signatures, against the name of Sri  Keshab
Chandra  'Mandal  there was a cross mark.   The  vakalatnama
contained the following entry :--
    "I  hereby  appoint on my behalf  Srijukta  Babu  Hangsa
Gopal  Nandi,  Pleader, to do all works in  connection  with
this case and as I do not know to read and write I put in  x
mark  in  the presence of the undermentioned  persons  as  a
token thereof."
    His  son Sri Jugal Chandra Mandal attested the  I  cross
mark in the vakalatnama.
On  receipt of this petition the Agricultural  Incometax
Officer allowed time for one day and fixed the case for  the
7th  May,  1945, at 10 a.m.  The assessee  was  directed  to
submit a fresh return and to produce account books and other
necessary  papers.   It was also stated in the  order  sheet
that  if the assessee failed to comply with the  order,  as-
sessment would be made under section 25 (5) of the Act.
On  the 7th May, 1945, the assessee did not appear  per-
sonally.  His son Jugal Chandra Mandal appeared with pleader
Babu Hangsa Gopal Nandi.  The son, Jugal Chandra Mandal, had
not  brought any letter of authority from the  assessee.   A
return  was  submitted  which was signed  in  vernacular  as
follows :--
    "Sri  Keshab  Chandra  Mandal  Ba:  Sri  Jugal   Chandra
Mandal."
    It will be noticed that in this last signature there was
no cross mark.
438
The  Agricultural Income-tax Officer stated in  his  as-
sessment order as follows :--
    "A  fresh return is submitted to-day. A remarkable  dif-
ference is noticeable between the two returns. First  return
shows  total  agricultural  income of Rs.  335  whereas  the
revised or the fresh one shows an income of Rs.  1,077-12-6.
This is really strange.  The first one appears to have  been
signed  by the assessee himself but the second one has  been
signed by Jugal his son for the assessee.  Under the circum-
stances, I can put no reliance on any of these returns. I do
not make any assessment based on these returns."
    The Agricultural  Income-tax Officer thereafter  immedi-
ately proceeded with the assessment and assessed Rs.  4,968-
12-1 as the assessable income.
    The assessee preferred an appeal from this order to  the
Assistant  Commissioner,  Agricultural  Incometax,   Bengal.
The   Assistant  Commissioner by his order  dated  the  14th
August, 1945, dismissed the appeal and confirmed the assess-
ment under section 35 (4) (a)(i).
    The assessee thereupon preferred a further appeal before
the Income-tax Appellate Tribunal.  The Income-tax Appellate
Tribunal  on the 9th December, 1947, accepted the appeal  on
the ground, amongst others, that the return filed on the 7th
May, 1945, was a proper return and should have been  treated
as such.
    The  Commissioner of Income-tax thereupon applied  under
section  63 (1) of the Act for a reference of certain  ques-
tions  of law to the High Court.  The Appellate Tribunal  by
its order dated the 22nd April, 1948, referred the following
question of law to the High Court :-
     "Whether in the circumstances of this case, the  decla-
ration in the form of return signed by the illiterate asses-
see  by  the pen of his son should be  treated  as  properly
signed and a valid return."
     The  reference came up before a Bench of  the  Calcutta
High  Court (G. N. I)as J. and  R.P. Mookerjee J.) who,  for
reasons stated in their judgment
439
dated the 16th September, 1948, answered the question in the
affirmative.  The Commissioner thereupon applied to the High
Court  for  a certificate under section 64 (2)  of  the  Act
which having been granted the appeal has now come up  before
us  for final disposal.  In this appeal we are only   called
upon to judge whether the answer given by the High Court  to
the question of law formulated by the Appellate Tribunal  is
well-founded.   It  is abundantly clear on  the records that
there was no physical contact between the  assessee and  the
signature  appearing  on  the return as filed  on   the  7th
May,   1945,  and the fact is referred to by the  words  "in
the   circumstances  of this case" at the beginning  of  the
question. Indeed the whole of the proceedings have proceeded
on  this  footing.  I desire to make it clear that  in  this
appeal  we are not concerned with the propriety of  the  In-
come-tax Officer in proceeding to assessment without  giving
the  assessee a further opportunity to put his mark  on  the
return.
    The  High  Court quoted the  following  observations  of
Blackburn J. in The Queen v. The Justices o/Kent (1):
    "No   doubt  at common law,  where a  person  authorises
another  to  sign for him, the signature of  the  person  so
signing is the signature of the person authorising it;never-
theless,  there may be cases in which a statute may  require
personal signature."
    Then,  after  stating that the Courts ought not  to  re-
strict the common law rule qui facit per alium facit per se,
unless  the statute makes a personal  signature   indispens-
able,  and   referring to certain decided cases,  enunciated
the proposition that when the word "sign" or "signature"  is
used  by  itself  and unless there  be  a  clear  indication
requiring  the personal signature by the hand of the  person
concerned,   the  provision would be satisfied by  a  person
signing  by  the hand of an agent.  Applying this  test  the
High  Court came to the conclusion that there was  not  only
not anything in the Act or the rules requiring the  personal
signature of the individual assessee
(1) (1846) L.R. 8 Q.B. 305 at p. 307.
56
440
but  that  insistence on such a requirement would create  an
anomaly, in that while an assessee who is an individual will
have to sign personally, the persons authorised to sign  for
the other categories of assessees, namely, a Hindu undivided
family, a company, the Ruler of an Indian State, a  firm  or
any  other association will not be compellable to sign  per-
sonally.  The High Court took the view that to avoid such  a
patent  anomaly which would inevitably result if the  inter-
pretation  proposed by the department were to  be  accepted,
the Court should follow the common law rule mentioned above.
In  the  result, the High Court answered the  point  of  law
referred to them in the affirmative.
    The learned Standing Counsel to the Government of Bengal
(Mr.  K.P. Khaitan) in the course of a fair and lucid  argu-
ment  contended before us that the Court should give  effect
to  the plain meaning of the words of' the statute  and  the
rules  which  have  statutory force whatever  might  be  the
consequences and that on a plain reading of the Act and  the
rules there could be no doubt that the legislature  intended
the  return of an individual assessee to be signed  by  him-
self,  i.e., personally.  Learned counsel referred us  to  a
number of decisions, both Indian and English, where personal
signature had been held indispensable.
    There  is  no doubt that the true rule as laid  down  in
judicial  decisions  and indeed, as recognised by  the  High
Court  in  the case before us, is that unless  a  particular
statute expressly or by necessary implication or  intendment
excludes  the common law rule, the latter must prevail.   It
is, therefore, necessary in this case to examine the Act and
the  rules  to  ascertain whether there  is  any  indication
therein that the intention of the legislature is to  exclude
the common law rule.
    Turning  first  to  the Act, it will be  found  that  by
section  2 (14) the word "received" used with  reference  to
the  receipt  of agricultural income by a  person  has  been
defined to include receipt by an agent or servant on  behalf
of  a principal or master respectively. If  the  legislature
intended  that a signature by an agent would be  permissible
it could easily have defined the
441
word  "sign"  so as to include the signature  by  an  agent.
Section 25 (2) of the Act requires that if the  Agricultural
Income-tax  Officer is not satisfied without  requiring  the
presence of the person who made the return or the production
of  evidence that a return made under section 24 is  correct
and complete, he shall serve on such person a notice requir-
ing him, on a date to be therein specified, either to attend
at  the  Agricultural Income-tax  Officer's  office  or   to
produce  or  to cause to be there produced any  evidence  on
which  such person may rely in support of the return.   This
section  expressly  permits  production of  evidence  by  an
agent.   Section  41 gives to  the  Agricultural  Income-tax
Officer, the Assistant Commissioner and the Appellate Tribu-
nal  for the purposes of Chapter V, and to the  Commissioner
for  the  purposes  of section 37, the same  powers  as  are
vested  m a Court under the Code of Civil  Procedure,  1908,
when trying a suit in   respect of certain specified matters
only namely, enforcing attendance of any person and  examin-
ing  him on oath or affirmation, compelling  production   of
documents   and issuing commissions for the  examination  of
witnesses, and the proceedings before those officers are  to
be deemed to be "judicial proceedings" within the meaning of
sections 193 and 228 and for the purposes of section 196  of
the Indian Penal Code.  Again, section 60 of the Act permits
a notice or requisition under the Act to be served as if  it
were  a  summons issued by a Court under the Code  of  Civil
Procedure,  1908,  and  specifies the person  on  whom  such
service may be effected. There is nothing in the Act  making
the provisions of the Code relating to the signing or  veri-
fication of pleadings applicable to the returns to be  filed
by  any  assessee.   If the Legislature  intended  that  the
return might be signed by the assessee or by his  authorised
agent  there  could have been no difficulty in  inserting  a
section  in  the  Act adopting the provisions  of  the  Code
relating to. the signing and verification of pleadings as if
the  return  was a pleading in a suit.  Sections 35  and  58
expressly permit an assessee to attend before the  Assistant
Commissioner and the Appellate Tribunal or
442
any Agricultural Income-tax authority in connection with any
proceeding under the Act, otherwise than when required under
section  41 to attend personally for examination, to  attend
by  a  person authorised by him in writing in  this  behalf,
being a relative of, or a person regularly employed by,  the
assesses, or a lawyer or accountant or agricultural  income-
tax  practitioner. It should be noted that even  under  this
section  any and every agent cannot represent  the  assessee
but  only certain specified kinds of agents can do  so.   To
summarise,  the omiSSiOn Of a definition of the word"  sign"
as  including a signature by an agent, the permission  under
section 25 for production of evidence by an agent and  under
sections 35 and 58 for attendance by an agent and the  omis-
sion of any provision in the Act applying the provisions  of
the  Code  of Civil Procedure relating to  the  signing  and
verification of pleadings to the signing and verification of
the  return while expressly adopting the provisions of  that
Code relating to the attendance and examination of  witness-
es,  production of documents and issuing of  commission  for
examination and for service of notices under sections 41 and
60  respectively, cannot be regarded as wholly without  sig-
nificance. The matter, however, does not rest there.
    Section 24 of the Act requires the Agricultural  Income-
tax Officer to call for a return in the prescribed form  and
verified  in the prescribed manner.  Rule 11 of  the  Bengal
Agricultural Income-tax Rules, 1944, framed under section 57
of the Act prescribes that the return required under section
24  must  be in Form 5 and shall be verified in  the  manner
indicated  therein.  There is a footnote in Form  5  to  the
following effect:
  "The  declaration  shall be signed(a) in the  case  of  an
individual by the individual himself;
    (b)  in  the  case of a Hindu undivided  family  by  the
Manager or Karta;
    (c)  in the case of a company or the Ruler of an  Indian
State by the principal officer;
(d) in the case of a firm by a partner;
    (e) in the case of any other association by a member  of
the association.
    443
    There  is also a note that the signatory should  satisfy
himself  that  the return is correct and complete  in  every
respect  before signing the verification, and  the  alterna-
tives  which are not required should be scored out. It  will
be  interesting to compare the requirements  of rule 11  and
Form 5 with  those of other rules dealing with  appeals  and
other proceedings.  Section 34 allows an  appeal  from   the
Agricultural Income-Tax Officer to the Assistant Commission-
er. Sub-section (3) of that section requires that the appeal
shall be in the prescribed form and shall be verified in the
prescribed  manner.   Likewise  section 36  provides  for  a
further appeal to the Appellate Tribunal and sub-section (4)
of that section also requires that such an appeal must be in
the  prescribed form and be verified in the prescribed  man-
ner.  Rule 13 prescribes the forms of appeals under  section
34 and rule 14 prescribes the forms of appeals under section
of the Act.  Rule 15 is as follows :--
    "The  forms of appeal prescribed by rules 13 and 14  and
the forms of verification appended thereto shall be signed-
    (a)  in  the case of an individual,  by  the  individual
himself;
    (b)  in  the case of a Hindu undivided  family,  by  the
Manager or Karta thereof;
    (c)  in the case of a company, by the principal  officer
of the company;
(d) in the case of a firm, by a partner of the firm ,'
    (e)  in the case of a Ruler of an Indian State,  by  the
principal officer of the State; and
(f) in the case of any other association of individuals,  by
a member of the association,
    and  such  forms of appeal shall be also signed  by  the
authorised representative, if any, of the appellant."
    Rule 17 deals with applications for refund of tax.  Sub-
rule (2) requires every such application to be signed by the
claimant  and  his authorised representative,  if  any,  and
allows  such application  to be presented by  the  applicant
either in person or through
444
such authorised representative.  Rule 22 requires that where
an  application  or  memorandum of appeal is  signed  by  an
authorised  representative, the latter must annex to it  the
writing constituting his authority and his acceptance of it.
Under rule 25 an appeal to the Tribunal has to be  presented
in person or by an authorised representative and under  rule
28  every such appeal has to be preferred in the form  of  a
memorandum signed by the appellant and his authorised repre-
sentative,  if any,  and verified by the appellant. Each  of
the forms, from Form 7 to Form 20, contains separate  spaces
for the signatures of the appellant or the applicant or  the
claimant  as the case may be and the authorised  representa-
tive,  if any. Form 23 which is notice of hearing of  appeal
under section 36 requires the attendance of the appellant or
respondent  either inperson or by an authorised  representa-
tive.   Rule  47 provides that, subject to  certain  special
provisions, the provisions contained in Part II of the rules
relating  to  the presentation, notices and  hearing  of  an
appeal  before  the Appellate Tribunal shall  apply  to  the
presentation, notices and hearing of a section 63  reference
application  as if it were an appeal.  Rule 53 empowers  the
Tribunal,  if it considers it necessary, to hear the  appli-
cant  or  his authorised representative. A  perusal  of  the
several  rules referred to above will show that while  rules
15,  17 (2), 28 and the forms thereunder require the  appeal
or application to be signed by the appellant or applicant or
claimant  as  well as by his authorised  representative,  if
any,  rule 11 and Form 5 require only the signature  of  the
assessee  in  the manner therein  prescribed  for  different
categories  assessees. Again rules 17 (2), 25 and 47  permit
presentation  of applications and appeals by the  authorised
representative  of  the assessee whereas there is  no  such'
provision  for the presentation by an authorised agent of  a
return  under rule 11 which could easily be inserted in  the
rules  if  the Legislature so intended.  That  wherever  the
assessee  or the appellant or the applicant is  required  to
sign he must sign personally, is also borne out by note  (1)
at  the  foot of Form 20 which is for refund  of  tax  under
section 48 (2).  It runs as follows:
445
     "In the case of a person not resident in British India,
the above declaration shall be sworn (a) before a Justice of
the Peace, a Notary Public, a Commissioner of Oaths, if  the
applicant  resides  in any part of His  Majesty's  Dominions
outside  British  India, (b) before a  Magistrate  or  other
official of the State or a Political Officer, if he  resides
in a State in India, and (c) before a British Consul, if  he
resides elsewhere."
This  does  not mean that only the claimant  for  refund
under section 48 (2) who resides outside India must sign his
application personally and other assessees or appellants  or
applicants or claimants need not sign their return or appeal
or application personally. All that it means is that such  a
claimant  for  refund  under section 48 (2)  must  have  his
signature authenticated by certain public officers by swear-
ing  the declaration in their presence. This  clearly  indi-
cates that personal signature of the assessee, the appellant
or  applicant is necessary in all cases wherever his  signa-
ture  is  required and authentication of such  signature  is
required  only in the case of a claimant for refund  of  tax
under  section 48 (2). There are yet other reasons why  per-
sonal  signature  of an assessee,  appellant,  applicant  or
claimant is necessary.  It has been seen that under the  Act
and/or the rules several acts can be done by or through  the
authorised representative, namely, production of  documents,
presentation  of  appeal  or application  and attendance  in
proceedings before the authorities.  The expression  "autho-
rised representative" is defined in rule 2 (a).  It will  be
noticed that in each case the authorised representative  has
to  be  duly  authorised in writing.   Under   rule  22  the
authorised   representative has to file the writing  consti-
tuting  his authority and his acceptance of it.  If it  were
intended  that they, signature by an agent on a return or  a
memorandum  of appeal or other application will  suffice  as
the signature of the assessee or the appellant or the appli-
cant  or the claimant, there would certainly have been  some
rule for constitution of such agency in writing and for  the
filing  of  the  writing constituting such  agency  and  the
agent's acceptance of it.  If an agent for mere presentation
of an appeal is expressly required by the
446
rules to be duly authorised in writing and such writing  has
to  be  filed on record I cannot think that the Act  or  the
rules  contemplate or permit the employment of an  agent  to
sign an important document, namely a return or an appeal  or
application  without  any written authority  and  that  such
agent may sign without producing any such written authority.
And yet that would be the result, for there is no  provision
in that behalf in the Act or in the rules.  On a  considera-
tion  of the provisions of the Act and of the rules and  the
forms and for reasons stated above there appears to be  many
clear indications of an intention on the part of the  Legis-
lature to insist on the personal signature of the  assessee,
appellant or applicant whenever his signature is required by
the  Act or the rules and the common law rule qui facit  per
alium  facit per se is excluded by necessary implication  or
intendment of the Act and the rules.
    The Appellate Tribunal and the High Court have  referred
to certain difficulties in arriving at this conclusion which
may now be considered.   It is pointed out that to insist On
the personal signature of an individual assessee will result
in  the  anomaly  that persons authorised to  sign  for  the
assessees  of other categories will be free to get  the  re-
turns signed by their own agents.  This argument really begs
the  question. For reasons stated above none of the  persons
designated  in  the  footnote to Form 5  are  authorised  to
employ  an  agent to sign for him and therefore  no  anomaly
'can arise.  If anything, the use of the word "himself" with
reference to an individual makes the position clearer so far
as such individual is concerned. There is an argument  based
on  hardship   or inconvenience. Hardship  or  inconvenience
cannot  alter  the meaning of the language employed  by  the
Legislature  if  such meaning is clear on the  face  of  the
statute  or  the  rules. Further, there is  no  hardship  or
inconvenience.  In the case of an illiterate person, he  can
put  his mark which, by the Bengal General Clauses  Act,  is
included in the definition of "sign."  If claim Form 20  for
refund of tax under section 48 (2) can be sent to a claimant
abroad for his signature before certain public
447
officer  for  authentication, there can be  no  hardship  or
inconvenience in sending to him abroad the return in Form  5
for  his signature without the necessity of any  authentica-
tion  thereof It is said that such a construction will  pre-
vent  a  leper who, by reason of the loss  of  his  fingers,
cannot  even put his mark.  Such cases will indeed  be  rare
and  in any event it will be for the Legislature to  rectify
this:defect. Not to insist on personal signature on  returns
or  appeals or applications will let in signature  by  agent
not  duly  authorised in writing and without  production  of
such  writing.  In that case the provisions for penalty  for
filing  false returns may quite conceivably be difficult  of
application.  The omission of a definition of the expression
"sign"  so  as  to include the signature of  an  agent,  the
presence of the provisions permitting only certain specified
acts, other than signing, to be done by or through an autho-
rised agent are significant and indicate that the  intention
of the Legislature is not to permit signature by an agent so
as to exclude the common law rule referred to above.
    Turning now to the judicial decisions cited before us it
will  be found that Courts have insisted on personal  signa-
ture  even when there were not so many clear indications  in
the  statutes under consideration  in those cases  as  there
are  in the statute and the rules before us.  Thus in  Monks