PETITIONER:
COMMISSIONER OF AGRICULTURALINCOME-TAX, BENGAL
Vs.
RESPONDENT:
SRI KESHAB CHANDRA MANDAL
DATE OF JUDGMENT:
09/05/1950
BENCH:
DAS, SUDHI RANJAN
BENCH:
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--Permissi-
bility--"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 con-
tained 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 affirma-
tive.
Judgment of the Calcutta High Conrt reversed.
55
436
JUDGMENT:
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 Agricul-
tural 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 1944-
45 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, 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
v. Jackson( 1 ), which was a case under section 1 (3) of the
Municipal Elections Act and 39 Vic., c. 40) which re-
quired 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 enti-
tled, 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 re-
Prince 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 ruptcy’ 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 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 part-
ners. 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 “personal-
ly.” 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 signa-
ture 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 propo-
sition 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 princi-
pal. 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 personat 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 beac-
cepted 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 ap-
pointed 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. Refer-
ence 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 respond-
ent 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 asses-
see 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 signa-
ture. In the matter of Commissioner of Income-tax, C.P. &
U.P.(1), it was observed that it is the duty of the Income-
tax 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 hap-
pened. 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 provi-
sions 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 pena-
lised. In the result I would dismiss this appeal. Appeal
allowed.
Agent for appellant: P.K. Bose.
(1) A.I.R. 1935 Oudh. 305.
453
