1973 (9) TMI 4

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....The facts out of which the aforesaid question has been referred have been stated clearly in the order of reference. The assessee is a Hindu undivided family consisting of Shri K. P. Sahu and Shri Padmalochan Sahu who are related as father and son. Against the order of assessment passed by the Income-tax Officer the assessee filed an appeal on March 15, 1967, before the Appellate Assistant Commissioner. The appeal petition was not signed by any member of the joint family, but was signed by one S. C. Das, authorised representative. The Appellate Assistant Commissioner noticed the defect and issued a show-cause notice to the assessee as to why the appeal should not be dismissed as not having been signed and verified in accordance with law. ....

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....n 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, Padmalochan Sahu, was not the karta of the Hindu undivided family. It is, 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. The question for consideration, however, is whether for non-compliance of the rule the memorandum of appeal should be treated as a nullity, or whether an opportunity should be given to the assessee to ....

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....at the memorandum of appeal should have been signed by the karta of the family. There was, therefore, no necessity to make a reference to this court by framing the first part of the question which was not in controversy. The first part of the question is to the effect : "Whether in the presence of the karta of the Hindu undivided family, it is lawful for a member of the Hindu undivided family to sign and verify the memorandum of appeal before the first appellate authority?" The answer must obviously be in the negative, that is to say, it is the karta alone and not any other member of the joint family that would sign. As we have stated, this part of the question need not have been referred to this court as there was no controversy on t....