Commissioner of Agricultural
Income-Tax, Bengal Vs. Sri Keshab Chandra Mandal [1950] INSC 12 (9 May 1950)
DAS, SUDHI RANJAN FAZAL ALI, SAIYID SASTRI,
M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
CITATION: 1950 AIR 265 1950 SCR 435
CITATOR INFO :
D 1955 SC 249 (5) R 1956 SC 604 (4,11,12)
ACT:
Bengal Agricultural Income-tax Act, (IV of
1944). Es 24, 57-Rules under the Act, r. 11, Form No. 5--Return of illiterate
assessee --Declaration signed by pen of son of assessee--Validity of
return-Signature by Agent--Permissibility--"Qui facit per alium facit
"applicability of.
HEADNOTE:
The Rules framed under the Bengal
Agricultural Income tax Act, 1944, provided that the declaration in a return of
income had to be signed "in the case of an individual, by the individual
himself." A return of an illiterate assessee, Keshab Chandra Mandal, was.
signed in the vernacular as follows: "Sri Keshab Chandra Mandal Ba: Sri
Jugal Chandra Mandal," the latter being the son of the assessee. The
Appellate Tribunal referred to the High Court the question "whether in the
circumstances of the case, the declaration in the form of return signed by the
illiterate assessee by the pen of his son should be treated as properly signed
and a valid return." The High Court answered the question in the
affirmative. On appeal:
Held, per FAZL ALl, PATANJALI SASTRI,
MUKHERJE and DAS JJ. (MAHAJAN J. dissenting)--that the Bengal Agricultural
Income-tax Act, 1944, and the Rules framed thereunder contained provisions
indicating an intention to exclude the common law rule qui tacit per alium
tacit per se in the matter of affixing signature to the return of income made
by an assessee who was an individual, and, as it was abundantly clear on the
records that there was no physical contact between the assessee and the
signature appearing on the return, the return was not properly signed and was
not a valid return.
MAHAJAN J--As the question referred was
whether the return "signed by the illiterate assessee with the pen of his
son" was valid, it must be assumed that there was such contact, and as
there was nothing whatsoever on the record to establish that the assessee did
not touch the pen or the hand of the son when the signature was affixed, the
High Court was right in answering the question in the affirmative.
Judgment of the Calcutta High Court reversed.
APPEAL from the High Court of Judicature at
Fort William: (Civil Appeal No. LXXXVIII of 1949.) This was an appeal from the
judgment and order of the High Court of Judicature at Calcutta dated 16th
September, 1948, (G. N. Das and R.P. Mookerjee JJ.) in a Reference made to the
High Court under section 63 (1) of the Bengal Agricultural Income-tax Act,
1944, by the Appellate Tribunal of Agricultural Income-tax, West Bengal. The
facts are set out in the judgment.
K.P. Khaitan (B. Sen, with him) for the
appellant. The respondent was not represented.
1950. May 9. The following judgments were
delivered :-DAs J.--There is no serious dispute as to' the facts leading up to
this appeal. They are shortly as follows:
In response to a notice issued under section
24 (2) of the Bengal Agricultural Income-tax Act, 1944, the assessee, who is
the respondent before us, submitted a return showing his total agricultural income
for the assessment year 194445 to be Rs. 335. This return is dated the 3rd
April, 1945, and just below the declaration appears the following writing in
vernacular:
"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, assessment
would be made under section 25 (5) of the Act.
On the 7th May, 1945, the assessee did not
appear personally. 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 assessment order as follows :-"A fresh return is submitted
to-day. A remarkable difference 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 circumstances, 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 immediately
proceeded with the assessment and assessed Rs. 4,96812-1 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 assessment 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 questions 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 declaration in the form of return signed
by the illiterate assessee 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 Income-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;nevertheless, there may be cases in
which a statute may require personal signature." Then, after stating that
the Courts ought not to restrict the common law rule qui facit per alium facit
per se, unless the statute makes a personal signature indispensable, 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 personally. The High Court took the view that to avoid such
a patent anomaly which would inevitably result if the interpretation 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 argument
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 himself, 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 requiring 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 Tribunal 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 examining 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 verification
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 incometax 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 omission 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 witnesses, 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 significance. 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 alternatives 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 Commissioner. 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 manner.
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. Subrule (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 representative, 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 representative, 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 representative. 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 applicant
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 swearing the declaration in their
presence. This clearly indicates that personal signature of the assessee, the
appellant or applicant is necessary in all cases wherever his signature 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 personal 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 "authorised 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 constituting 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 applicant 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 consideration
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 Legislature 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 returns
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 authentication thereof It is said that
such a construction will prevent 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 authorised 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 signature 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 v. Jackson( 1 ), which was a case under section 1 (3) of the
Municipal Elections Act and 39 Vic., c. 40) which required delivery of the
nomination paper" by the candidate himself or his proposer or seconder to
the Town Clerk" it was held that this requirement was not satisfied by the
delivery it by an agent. In The Queen v. Mansel Jones(2), it was held that a
person charged with any corrupt or illegal practice at a municipal election who
was entitled, under section 38 of the Corrupt and Illegal Practices Prevention
Act, 1883, to be "heard by himself" was not entitled to be heard by
his counsel or solicitor. In rePrince Blucher(9), the English Court of Appeal
held that a proposal of composition (1) (1876) L.R. 1 C.P.D. 683 (2) L.R. 23
Q.B.D.
29 (3) L.R. (1931) 2 Ch. 70 57 448 signed by
the solicitors of a debtor, who was, by reason of his serious illness, unable
to sign it, did not comply with the requirements of section 16 (1) of the Bank raptly'
Act, 1914, which required "a proposal in writing signed by him." The
Court of Appeal applied the principles of the decision in Hyde v. Johnson(1)
and in re Whitley Partners Ltd.(2).
In Luchman Bukshi Roy v. Runjeet Ram
Panday(3), a Full Bench of the Calcutta High Court held that an acknowledgment
by a Mooklear was not sufficient for the purposes of section 1 (5) of the
Limitation Act (XIV of 1859) which required an acknowledgment signed by the
mortgagee. Rankin C.J. held in Japan Cotton Trading Co. Ltd. v. Jajodia Cotton
Mills, Ltd.(4) that a demand letter signed by the solicitors of the petitioning
creditor was not a notice under section 163 of the Indian Companies Act which
as it then stood required a demand "under his hand." A similar view
was taken by the Rangoon High Court in Manjeebhai Khataw & Co. v. Jamal
Brothers & Co. Ltd.(5) and M.A. Kureshi v. Argus Footwear, Ltd. (6). See
also Wilson v. Wallani ( 7 ). In C.T.A.C.T.
Nachiappa Chettyar v. Secretary of State for
India(8), it was held that the registration of a firm on an application signed
by the agent of the partners was ultra vires inasmuch as the rules framed under
section 59 of the Income-tax Act required an application signed by at least one
of the partners. In Commissioner of Income-tax, Madras v. Subba Rao (9), it was
held that by reason of the word. "personally" occurring in rule 6 of
the Income-tax Rules framed under section 59 of the Income-tax Act, 1922, a
duly authorised agent of a partner was precluded from signing on behalf of the
partner an application under section 26-A of the Act for registration of the
firm. In all these cases the common law rule was not applied, evidently because
the particular statutes were held to indicate that the intention was to exclude
that rule. This intention Was gathered from the use of the (1) (1836) 2 Bing.
(N.C) 776 (2) (1886) L.R. 32 Ch. D. 337 (3) (1873) 20 W.R-375 (4) (1926) I.L.R.
54 Cal.
(5) I.L.R. 5 Rang. 483 (6) I.L.R. 9 Rang.
323 (7) (1880) L.R. 5 Ex. D. 155 (8) (1933)
I.L.R. 11 Rang. 380 (9) I.L.R. (1947) Mad. 167 449 word "himself" or
"by him" or "under his hand" or "personally." It
is needless to say that such an intention may also be gathered from the nature
of the particular statute or inferred from the different provisions of the
statute and the rules framed thereunder. As already stated, there are many
indications in the Bengal Agricultural Income-tax Act, 1944, and the rules made
thereunder evidencing an intention to exclude the common law rule in the matter
of the signature of the assessee, appellant or applicant on the return, appeal
or application.
The High Court referred to the case of' In
the matter of Commissioner of Income-tax, C.P. & U.P. ( 1 ) and sought to
find support for its views from the Circumstance that the Court in that case
rejected the return not on the ground that it was bad because it was signed by
an agent but on the ground that the power of attorney did not authorise the agent
to sign it. It is quite clear that the Court in that case found it easier to
decide the case on the latter ground than to enter upon a discussion of the
first ground. It is impossible to read that case as an authority for the proposition
that the signature of an agent was permissible at all. The Full Bench decision
of the Allahabad High Court in Deo Narain Rai v. Kukur Bind('2) referred to in
the High Court judgment before us does not appear to militate against the views
expressed above. On a construction of section 59 of the Transfer of Property
Act it was held that there was nothing in the Act to exclude the application of
the common law rule. The only provision of that Act on which reliance was
-placed in establishing such exclusion was section 123.
Stanley C.J. pointed out that the language of
the last mentioned section was elliptical and was not accurate draughtsmanship
and, therefore, it could not be relied upon in construing section 59. The
judgment of Banerjee J. also makes it clear that he found nothing in the Act to
exclude signature by an agent and that the words "on behalf of" in
section 123 were surplusage. It is quite true that when signature by an agent
is permissible, the writing of the name of (1) A.I.R. (1935) Oudh. 305 (2) (1902)
I.L.R. 24 All. 319.
450 the principal by the agent is regarded as
the signature of the principal himself. But this result only follows when it is
permissible for the agent to sign the name of the principal. If on a
construction of a statute Signature by an agent is not found permissible then
the writing of the name of the principal by the agent however clearly he may
have been authorised by the principal cannot possibly be regarded as the
signature of the principal for the purposes of that statute. If a statute
requires personate signature of a person, which includes a mark, the signature
or the mark must be that the man himself. There must be physical contact
between that person and the signature or the mark put on the document.
The result, therefore, is that this appeal
must be accepted and the question referred to the High Court must be answered
in the negative. There will be no order for costs against the assessee and the
appellant Commissioner must bear his own costs throughout.
FAZL ALI J.--I agree.
PATANJAL SASTRI J.--I agree.
MUKHERJEA J.--I agree.
MAHAJAN J.--The question of law referred to
the High Court and answered by it in the affirmative is in these terms
:--"Whether in the circumstances of this case, the declaration in the form
of return signed by the illiterate assessee by the pen of his son should be
treated as properly signed and a valid return." The High Court was not
called upon to answer the question whether an income-tax return could be
validly signed by an agent in the name of the principal; on the other hand, the
question as framed assumes that the return was signed by the illiterate
assessee but that the pen affixing the signature was that of his son.
The physical act of putting the mark was made
by the pen or possibly by the hand of the son who was not the agent appointed
by the father and was not otherwise authorised by him to sign for him.
451 No evidence was led and there is nothing
whatsoever on the record to establish that this illiterate assessee did not
touch the pen or the hand of the son when the signature was affixed on the
return. No precise definition of the word "signature" is given in the
Indian Income-tax Act or in any other law. In the General Clauses Act there is
no exhaustive definition of the word. It merely says what the word
"signature" shall include. It includes the affixing of a mark. In
India it is a well known practice that when the executant of a document is
illiterate he simply touches the pen wherewith someone else signs his name for
him. Reference in this connection may be made to page 972, para, 1659, of Gour
on The Law Transfer. The signature made in these circumstances is personal
signature of the executant.
It is his autograph. No question of agency
arises in such a situation. This is what seems to have happened here as one can
guess from the frame of the question. Be that as it may, without any enquiry
into the circumstances in which the pen of the son affixed the signature of the
assessee on the return it could not be assumed that the son acted as the agent
of the father and signed his name in that capacity.
In my opinion the discussion of the question
whether an agent can sign a return for an assessee was outside the scope of the
question which the High Court was called upon to answer. The answer given in my
view was a correct one.
After considerable thought I am disinclined
to reverse the decision of the High Court by placing an interpretation on the
question which it does not bear. In an ex-parte hearing we had not the
advantage of hearing any arguments in support of the view taken by the High
Court as the respondent did not appear. It is unnecessary to express any
opinion on the question whether an agent can sign for the principal a form of
return under the Indian Income-tax Act as that enquiry is outside the scope of
the question referred to the High Court as already pointed out.
In the absence of any material to the
contrary I am satisfied that the assessee signed the return 58 452 personally.
If the Income-tax Officer felt that the assessee had not touched the pen or the
hand of the person who put the signature on the return he should have called
upon the assessee to appear before him and ascertain from him the circumstances
in which the son's pen was used for the signature. In the matter of
Commissioner of Income-tax, C.P. & U.P.(1), it was observed that it is the
duty of the Incometax Officer before he accepts a return signed by an agent to
satisfy himself about the authority of the agent to do so.
In my opinion, it is equally the duty of an
Income-tax Officer before he rejects a return of an illiterate assessee or a
person such as a leper, to satisfy himself that there was no physical contact
of the person with the mark or the signature put on the form. I agree with my
brother Das that there should be physical contact between the person and the
signature or the mark put on the document, but I am afraid I cannot agree with
him that in this case that has not happened. The question to a certain extent
assumes the contact of the assessee with the pen of his son when it states that
the illiterate assessee's signature was put with the pen of the son. Be that as
it may, that circumstance has not been eliminated in the case and that being
so, the question cannot be answered in the manner proposed by my learned
brother. I am further of the opinion that the Incometax Officers should not
while administering the law create unnecessary problems for the Courts. In the
present case if there was any doubt in the mind of the Income-tax Officer, he should
have called upon the illiterate assessee to put his mark in his presence on the
return and he should not have acted hastily in assessing him under the penal
provisions of the Act. Ignorant and illiterate people who are not well versed
with the law of income-tax should be dealt with more sympathetically than was
done here. They should not be penalised in the manner that the present assessee
was penalised. In the result I would dismiss this appeal. Appeal allowed.
Agent for appellant: P.K. Bose.
(1) A.I.R. 1935 Oudh. 305.
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