1986 (9) TMI 120

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....Campbell was appointed Attorney-in-fact, for the trustees of theassesseeChurch. (B) Shri Campbell signed the Memorandum of Appeal filed against the assessment order in his capacity as such Attorney. This did not meet with the requirement of r. 45 r/w s. 249 of the Act. The assessee was, therefore, asked to show cause why its appeal should not be dismissed in limine. (C) The assessee's case was that Shri Campbell could act on behalf of the assessee as its attorney and hence could sign the memorandum of appeal. In any case, the defect was not fatal to the appeal. But this argument had no substance. (D) the assessee filed its return in the status of AOP. There being more than one trustee in the case of assessee. r. 45(E) applied. That....

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....st the Trustees and to prosecute or defend the same, to file an appeal or appeals therein, and to act otherwise in the matter as the said attorney shall be advised or think proper." 4. Sec. 249 requires that an appeal to the Commissioner(A) shall be in the prescribed form and shall be verified in the prescribed manner. The relevant rule is r. 45. Rule 45(1) stipulates that the appeal shall be in Form No. 35. There is no dispute here that the "Memorandum of Appeal was in the prescribed form". Rule 45(2) carries various stipulations relating to different kinds of assessees. What is relevant for the dispute before us is r. 45(2)(e). This reads as under: "452. The form of appeal prescribed by sub-rule 1. the grounds of appeal and the form....

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.... that the declaration in the form of a return of the individual assessee should be signed by the assessee himself and not by his agent. But in this very decision, the Court observed that when the statute pemits signature by an agent, the writing of the name of the principal by the agent is regarded as the signature of the principal himself. In other words, the relevant question is whether the Statute and the Rule therein permit the operation of the common law rule of qui facit per alium facit per se. Hence this decision does not come in the way of accepting the assessee's claim here. 5. In Sheonath Singh, it was held that the Memorandum of Appeal before the Tribunal must always be singed and verified by the appellant himself and if there....