{"id":198174,"date":"1950-05-09T00:00:00","date_gmt":"1950-05-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-vs-sri-keshab-chandra-mandal-on-9-may-1950"},"modified":"2019-03-06T20:47:55","modified_gmt":"2019-03-06T15:17:55","slug":"commissioner-of-vs-sri-keshab-chandra-mandal-on-9-may-1950","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-vs-sri-keshab-chandra-mandal-on-9-may-1950","title":{"rendered":"Commissioner Of … vs Sri Keshab Chandra Mandal on 9 May, 1950"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of … vs Sri Keshab Chandra Mandal on 9 May, 1950<\/div>\n
Equivalent citations: 1950 AIR 265, \t\t 1950 SCR 435<\/div>\n
Author: S R Das<\/div>\n
Bench: Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan, Mehr Chand, Mukherjea, B.K., Das, Sudhi Ranjan<\/div>\n
           PETITIONER:\nCOMMISSIONER OF AGRICULTURALINCOME-TAX, BENGAL\n\n\tVs.\n\nRESPONDENT:\nSRI KESHAB CHANDRA MANDAL\n\nDATE OF JUDGMENT:\n09\/05\/1950\n\nBENCH:\nDAS, SUDHI RANJAN\nBENCH:\nDAS, SUDHI RANJAN\nFAZAL ALI, SAIYID\nSASTRI, M. PATANJALI\nMAHAJAN, MEHR CHAND\nMUKHERJEA, B.K.\n\nCITATION:\n 1950 AIR  265\t\t  1950 SCR  435\n CITATOR INFO :\n D\t    1955 SC 249\t (5)\n R\t    1956 SC 604\t (4,11,12)\n\n\nACT:\n    Bengal  Agricultural Income-tax Act, (IV of\t 1944).\t es.\n24,  57-Rules  under the Act, r. 11, Form No.  5--Return  of\nilliterate  assessee --Declaration signed by pen of  son  of\nassessee--Validity  of return-Signature by  Agent--Permissi-\nbility--\"Qui facit per alium facit \"applicability of.\n\n\n\nHEADNOTE:\n    The\t Rules framed under the Bengal Agricultural  Income-\ntax Act, 1944, provided that the declaration in a return  of\nincome\thad to be signed \"in the case of an  individual,  by\nthe individual himself.\" A return of an illiterate assessee,\nKeshab\tChandra\t Mandal, was. signed in\t the  vernacular  as\nfollows:  \"Sri Keshab Chandra Mandal Ba: Sri  Jugal  Chandra\nMandal,\"  the  latter being the son of\tthe  assessee.\t The\nAppellate  Tribunal referred to the High Court the  question\n\"whether  in the circumstances of the case, the\t declaration\nin  the form of return signed by the illiterate assessee  by\nthe pen of his son should be treated as properly signed\t and\na valid return.\" The High Court answered the question in the\naffirmative.   On appeal:\n    Held, per FAZL ALl, PATANJALI SASTRI,  MUKHERJE and\t DAS\nJJ.  (MAHAJAN J.  dissenting)--that the Bengal\tAgricultural\nIncome-tax  Act, 1944, and the Rules framed thereunder\tcon-\ntained\tprovisions  indicating an intention to\texclude\t the\ncommon\tlaw  rule qui tacit per alium tacit per\t se  in\t the\nmatter of affixing signature to the return of income made by\nan assessee who was an individual, and, as it was abundantly\nclear  on  the records that there was  no  physical  contact\nbetween\t the  assessee and the signature  appearing  on\t the\nreturn,\t the  return was not properly signed and was  not  a\nvalid return.\n    MAHAJAN  J--As  the question referred  was\twhether\t the\nreturn\t\"signed by the illiterate assessee with the  pen  of\nhis  son\" was valid, it must be assumed that there was\tsuch\ncontact,  and as there was nothing whatsoever on the  record\nto establish that the assessee did not touch the pen or\t the\nhand  of  the son when the signature was affixed,  the\tHigh\nCourt  was right in answering the question in  the  affirma-\ntive.\nJudgment of the Calcutta High Conrt reversed.\n55\n436\n\n\n\nJUDGMENT:\n<\/pre>\n
APPEAL from the High Court of Judicature at
\nFort William: (Civil Appeal No. LXXXVIII of 1949.)
\nThis was   an appeal from the judgment and order of the High
\nCourt of Judicature at Calcutta dated 16th  September, 1948,
\n(G.  N. Das and R.P. Mookerjee JJ.) in a Reference  made  to
\nthe  High Court under section 63 (1) of the Bengal  Agricul-
\ntural  Income-tax Act, 1944,  by the Appellate\tTribunal  of
\nAgricultural Income-tax, West Bengal.  The facts are set out
\nin the judgment.\n<\/p>\n
K.P.  Khaitan  (B.  Sen, with him) for\tthe  appellant.\t The
\nrespondent was not represented.\n<\/p>\n
1950. May 9.  The following judgments were delivered :–\n<\/p>\n
    DAs\t J.–There  is no serious dispute as to’  the  facts
\nleading up to this appeal.  They are shortly as follows:\n<\/p>\n
    In\tresponse to a notice issued under section 24 (2)  of
\nthe Bengal Agricultural Income-tax Act, 1944, the  assessee,
\nwho is the respondent before us, submitted a return  showing
\nhis total agricultural income for the assessment year  1944-
\n45 to be Rs. 335.  This return is dated the 3rd April, 1945,
\nand just below the declaration appears the following writing
\nin vernacular:\n<\/p>\n
“Sri Keshab Chandra Mandal.”\n<\/p>\n
    On\tthe  18th April, 1945,\tthe  Agricultural  Incometax
\nOfficer\t noted\ton the order sheet that the  case  would  be
\ntaken  up  at  Bankura Dak Bungalow on 6th  May,  1945,\t and
\ndirected  the office to inform the party to appear with\t all
\nsettlement records, vouchers etc. On the 6th May, 1945,\t the
\nassessee filed a petition before the Agricultural Income-tax
\nOfficer\t who had gone to Bankura stating inter alia that  he
\nhad  been  advised that the return which  he  had  submitted
\nbefore under the advice of a Headmaster of a school was\t not
\na proper return, that there were many mistakes in the return
\nand many things had been omitted and that, therefore, it was
\nabsolutely  necessary for him to submit a fresh\t return\t and
\npraying for fifteen days’ time for doing so and
\n   437<\/span>
\nalso  for  a form of return.   This petition was  signed  in
\nvernacular as follows :–\n<\/p>\n
“Sri Keshab Chandra Mandal x
\nBa:  Sri Jugal Chandra Mandal” Below that was the  signature
\nof his pleader H. Nandi.  With this petition was attached  a
\nVakalatnama signed in vernacular in the manner following:
\n“Sri Keshab Chandra Mandal x
\nBa:  Sri Jugal Chandra Mandal of Balya.” It will be  noticed
\nthat in both the signatures, against the name of Sri  Keshab
\nChandra\t ‘Mandal  there was a cross mark.   The\t vakalatnama
\ncontained the following entry :–\n<\/p>\n
    “I\thereby\tappoint on my behalf  Srijukta\tBabu  Hangsa
\nGopal  Nandi,  Pleader, to do all works in  connection\twith
\nthis case and as I do not know to read and write I put in  x
\nmark  in  the presence of the undermentioned  persons  as  a
\ntoken thereof.”\n<\/p>\n
    His\t son Sri Jugal Chandra Mandal attested the  I  cross
\nmark in the vakalatnama.\n<\/p>\n
    On\treceipt of this petition the Agricultural  Incometax
\nOfficer allowed time for one day and fixed the case for\t the
\n7th  May,  1945, at 10 a.m.  The assessee  was\tdirected  to
\nsubmit a fresh return and to produce account books and other
\nnecessary  papers.   It was also stated in the\torder  sheet
\nthat  if the assessee failed to comply with the\t order,\t as-
\nsessment would be made under section 25 (5) of the Act.
\n    On\tthe 7th May, 1945, the assessee did not appear\tper-
\nsonally.  His son Jugal Chandra Mandal appeared with pleader
\nBabu Hangsa Gopal Nandi.  The son, Jugal Chandra Mandal, had
\nnot  brought any letter of authority from the  assessee.   A
\nreturn\twas  submitted\twhich was signed  in  vernacular  as
\nfollows :–\n<\/p>\n
    “Sri  Keshab  Chandra  Mandal  Ba:\tSri  Jugal   Chandra
\nMandal.”\n<\/p>\n
    It will be noticed that in this last signature there was
\nno cross mark.\n<\/p>\n
438<\/span><\/p>\n
    The\t Agricultural Income-tax Officer stated in  his\t as-
\nsessment order as follows :–\n<\/p>\n
    “A\tfresh return is submitted to-day. A remarkable\tdif-
\nference is noticeable between the two returns. First  return
\nshows  total  agricultural  income of Rs.  335\twhereas\t the
\nrevised or the fresh one shows an income of Rs.\t 1,077-12-6.
\nThis is really strange.\t The first one appears to have\tbeen
\nsigned\tby the assessee himself but the second one has\tbeen
\nsigned by Jugal his son for the assessee.  Under the circum-
\nstances, I can put no reliance on any of these returns. I do
\nnot make any assessment based on these returns.”\n<\/p>\n
    The Agricultural  Income-tax Officer thereafter  immedi-
\nately proceeded with the assessment and assessed Rs.  4,968-
\n12-1 as the assessable income.\n<\/p>\n
    The assessee preferred an appeal from this order to\t the
\nAssistant  Commissioner,  Agricultural\tIncometax,   Bengal.
\nThe   Assistant\t Commissioner by his order  dated  the\t14th
\nAugust, 1945, dismissed the appeal and confirmed the assess-
\nment under section 35 (4) (a)(i).\n<\/p>\n
    The assessee thereupon preferred a further appeal before
\nthe Income-tax Appellate Tribunal.  The Income-tax Appellate
\nTribunal  on the 9th December, 1947, accepted the appeal  on
\nthe ground, amongst others, that the return filed on the 7th
\nMay, 1945, was a proper return and should have been  treated
\nas such.\n<\/p>\n
    The\t Commissioner of Income-tax thereupon applied  under
\nsection\t 63 (1) of the Act for a reference of certain  ques-
\ntions  of law to the High Court.  The Appellate Tribunal  by
\nits order dated the 22nd April, 1948, referred the following
\nquestion of law to the High Court :-\n<\/p>\n
     “Whether in the circumstances of this case, the  decla-
\nration in the form of return signed by the illiterate asses-
\nsee  by\t the pen of his son should be  treated\tas  properly
\nsigned and a valid return.”\n<\/p>\n
     The  reference came up before a Bench of  the  Calcutta
\nHigh  Court (G. N. I)as J. and\tR.P. Mookerjee J.) who,\t for
\nreasons stated in their judgment
\n439<\/span>
\ndated the 16th September, 1948, answered the question in the
\naffirmative.  The Commissioner thereupon applied to the High
\nCourt  for  a certificate under section 64 (2)\tof  the\t Act
\nwhich having been granted the appeal has now come up  before
\nus  for final disposal.\t In this appeal we are only   called
\nupon to judge whether the answer given by the High Court  to
\nthe question of law formulated by the Appellate Tribunal  is
\nwell-founded.\tIt  is abundantly clear on  the records that
\nthere was no physical contact between the  assessee and\t the
\nsignature  appearing  on  the return as filed  on   the\t 7th
\nMay,   1945,  and the fact is referred to by the  words\t “in
\nthe   circumstances  of this case” at the beginning  of\t the
\nquestion. Indeed the whole of the proceedings have proceeded
\non  this  footing.  I desire to make it clear that  in\tthis
\nappeal\twe are not concerned with the propriety of  the\t In-
\ncome-tax Officer in proceeding to assessment without  giving
\nthe  assessee a further opportunity to put his mark  on\t the
\nreturn.\n<\/p>\n
    The\t High  Court quoted the\t following  observations  of
\nBlackburn J. in The Queen v. The Justices o\/Kent (1):\n<\/p>\n
    “No\t  doubt\t at common law,\t where a  person  authorises
\nanother\t to  sign for him, the signature of  the  person  so
\nsigning is the signature of the person authorising it;never-
\ntheless,  there may be cases in which a statute may  require
\npersonal signature.”\n<\/p>\n
    Then,  after  stating that the Courts ought not  to\t re-
\nstrict the common law rule qui facit per alium facit per se,
\nunless\tthe statute makes a personal  signature\t  indispens-
\nable,  and   referring to certain decided cases,  enunciated
\nthe proposition that when the word “sign” or “signature”  is
\nused  by  itself  and unless there  be\ta  clear  indication
\nrequiring  the personal signature by the hand of the  person
\nconcerned,   the  provision would be satisfied by  a  person
\nsigning\t by  the hand of an agent.  Applying this  test\t the
\nHigh  Court came to the conclusion that there was  not\tonly
\nnot anything in the Act or the rules requiring the  personal
\nsignature of the individual assessee
\n(1) (1846) L.R. 8 Q.B. 305 at p. 307.\n<\/p>\n
56<\/span>
\n440<\/span><\/p>\n
but  that  insistence on such a requirement would create  an
\nanomaly, in that while an assessee who is an individual will
\nhave to sign personally, the persons authorised to sign\t for
\nthe other categories of assessees, namely, a Hindu undivided
\nfamily, a company, the Ruler of an Indian State, a  firm  or
\nany  other association will not be compellable to sign\tper-
\nsonally.  The High Court took the view that to avoid such  a
\npatent\tanomaly which would inevitably result if the  inter-
\npretation  proposed by the department were to  be  accepted,
\nthe Court should follow the common law rule mentioned above.
\nIn  the\t result, the High Court answered the  point  of\t law
\nreferred to them in the affirmative.\n<\/p>\n
    The learned Standing Counsel to the Government of Bengal
\n(Mr.  K.P. Khaitan) in the course of a fair and lucid  argu-
\nment  contended before us that the Court should give  effect
\nto  the plain meaning of the words of’ the statute  and\t the
\nrules  which  have  statutory force whatever  might  be\t the
\nconsequences and that on a plain reading of the Act and\t the
\nrules there could be no doubt that the legislature  intended
\nthe  return of an individual assessee to be signed  by\thim-
\nself,  i.e., personally.  Learned counsel referred us  to  a
\nnumber of decisions, both Indian and English, where personal
\nsignature had been held indispensable.\n<\/p>\n
    There  is  no doubt that the true rule as laid  down  in
\njudicial  decisions  and indeed, as recognised by  the\tHigh
\nCourt  in  the case before us, is that unless  a  particular
\nstatute expressly or by necessary implication or  intendment
\nexcludes  the common law rule, the latter must prevail.\t  It
\nis, therefore, necessary in this case to examine the Act and
\nthe  rules  to\tascertain whether there\t is  any  indication
\ntherein that the intention of the legislature is to  exclude
\nthe common law rule.\n<\/p>\n
    Turning  first  to\tthe Act, it will be  found  that  by
\nsection\t 2 (14) the word “received” used with  reference  to
\nthe  receipt  of agricultural income by a  person  has\tbeen
\ndefined to include receipt by an agent or servant on  behalf
\nof  a principal or master respectively. If  the\t legislature
\nintended  that a signature by an agent would be\t permissible
\nit could easily have defined the
\n441<\/span>
\nword  “sign”  so as to include the signature  by  an  agent.
\nSection 25 (2) of the Act requires that if the\tAgricultural
\nIncome-tax  Officer is not satisfied without  requiring\t the
\npresence of the person who made the return or the production
\nof  evidence that a return made under section 24 is  correct
\nand complete, he shall serve on such person a notice requir-
\ning him, on a date to be therein specified, either to attend
\nat  the\t Agricultural Income-tax  Officer’s  office  or\t  to
\nproduce\t or  to cause to be there produced any\tevidence  on
\nwhich  such person may rely in support of the return.\tThis
\nsection\t expressly  permits  production of  evidence  by  an
\nagent.\t Section  41 gives to  the  Agricultural  Income-tax
\nOfficer, the Assistant Commissioner and the Appellate Tribu-
\nnal  for the purposes of Chapter V, and to the\tCommissioner
\nfor  the  purposes  of section 37, the same  powers  as\t are
\nvested\tm a Court under the Code of Civil  Procedure,  1908,
\nwhen trying a suit in\trespect of certain specified matters
\nonly namely, enforcing attendance of any person and  examin-
\ning  him on oath or affirmation, compelling  production\t  of
\ndocuments   and issuing commissions for the  examination  of
\nwitnesses, and the proceedings before those officers are  to
\nbe deemed to be “judicial proceedings” within the meaning of
\nsections 193 and 228 and for the purposes of section 196  of
\nthe Indian Penal Code.\tAgain, section 60 of the Act permits
\na notice or requisition under the Act to be served as if  it
\nwere  a\t summons issued by a Court under the Code  of  Civil
\nProcedure,  1908,  and\tspecifies the person  on  whom\tsuch
\nservice may be effected. There is nothing in the Act  making
\nthe provisions of the Code relating to the signing or  veri-
\nfication of pleadings applicable to the returns to be  filed
\nby  any\t assessee.   If the Legislature\t intended  that\t the
\nreturn might be signed by the assessee or by his  authorised
\nagent  there  could have been no difficulty in\tinserting  a
\nsection\t in  the  Act adopting the provisions  of  the\tCode
\nrelating to. the signing and verification of pleadings as if
\nthe  return  was a pleading in a suit.\tSections 35  and  58
\nexpressly permit an assessee to attend before the  Assistant
\nCommissioner and the Appellate Tribunal or
\n442<\/span>
\nany Agricultural Income-tax authority in connection with any
\nproceeding under the Act, otherwise than when required under
\nsection\t 41 to attend personally for examination, to  attend
\nby  a  person authorised by him in writing in  this  behalf,
\nbeing a relative of, or a person regularly employed by,\t the
\nassesses, or a lawyer or accountant or agricultural  income-
\ntax  practitioner. It should be noted that even\t under\tthis
\nsection\t any and every agent cannot represent  the  assessee
\nbut  only certain specified kinds of agents can do  so.\t  To
\nsummarise,  the omiSSiOn Of a definition of the word”  sign”
\nas  including a signature by an agent, the permission  under
\nsection 25 for production of evidence by an agent and  under
\nsections 35 and 58 for attendance by an agent and the  omis-
\nsion of any provision in the Act applying the provisions  of
\nthe  Code  of Civil Procedure relating to  the\tsigning\t and
\nverification of pleadings to the signing and verification of
\nthe  return while expressly adopting the provisions of\tthat
\nCode relating to the attendance and examination of  witness-
\nes,  production of documents and issuing of  commission\t for
\nexamination and for service of notices under sections 41 and
\n60  respectively, cannot be regarded as wholly without\tsig-
\nnificance. The matter, however, does not rest there.
\n    Section 24 of the Act requires the Agricultural  Income-
\ntax Officer to call for a return in the prescribed form\t and
\nverified  in the prescribed manner.  Rule 11 of\t the  Bengal
\nAgricultural Income-tax Rules, 1944, framed under section 57
\nof the Act prescribes that the return required under section
\n24  must  be in Form 5 and shall be verified in\t the  manner
\nindicated  therein.  There is a footnote in Form  5  to\t the
\nfollowing effect:\n<\/p>\n
  “The\tdeclaration  shall be signed(a) in the\tcase  of  an
\nindividual by the individual himself;\n<\/p>\n
    (b)\t in  the  case of a Hindu undivided  family  by\t the
\nManager or Karta;\n<\/p>\n
    (c)\t in the case of a company or the Ruler of an  Indian
\nState by the principal officer;\n<\/p>\n
(d) in the case of a firm by a partner;\n<\/p>\n
    (e) in the case of any other association by a member  of
\nthe association.\n<\/p>\n
    443<\/span><\/p>\n
    There  is also a note that the signatory should  satisfy
\nhimself\t that  the return is correct and complete  in  every
\nrespect\t before signing the verification, and  the  alterna-
\ntives  which are not required should be scored out. It\twill
\nbe  interesting to compare the requirements  of rule 11\t and
\nForm 5 with  those of other rules dealing with\tappeals\t and
\nother proceedings.  Section 34 allows an  appeal  from\t the
\nAgricultural Income-Tax Officer to the Assistant Commission-
\ner. Sub-section (3) of that section requires that the appeal
\nshall be in the prescribed form and shall be verified in the
\nprescribed  manner.   Likewise\tsection 36  provides  for  a
\nfurther appeal to the Appellate Tribunal and sub-section (4)
\nof that section also requires that such an appeal must be in
\nthe  prescribed form and be verified in the prescribed\tman-
\nner.  Rule 13 prescribes the forms of appeals under  section
\n34 and rule 14 prescribes the forms of appeals under section
\nof the Act.  Rule 15 is as follows :–\n<\/p>\n
    “The  forms of appeal prescribed by rules 13 and 14\t and
\nthe forms of verification appended thereto shall be signed-\n<\/p>\n
    (a)\t in  the case of an individual,\t by  the  individual
\nhimself;\n<\/p>\n
    (b)\t in  the case of a Hindu undivided  family,  by\t the
\nManager or Karta thereof;\n<\/p>\n
    (c)\t in the case of a company, by the principal  officer
\nof the company;\n<\/p>\n
    (d) in the case of a firm, by a partner of the firm ,’\n<\/p>\n
    (e)\t in the case of a Ruler of an Indian State,  by\t the
\nprincipal officer of the State; and\n<\/p>\n
(f) in the case of any other association of individuals,  by
\na member of the association,
\n    and\t such  forms of appeal shall be also signed  by\t the
\nauthorised representative, if any, of the appellant.”\n<\/p>\n
    Rule 17 deals with applications for refund of tax.\tSub-
\nrule (2) requires every such application to be signed by the
\nclaimant  and  his authorised representative,  if  any,\t and
\nallows\tsuch application  to be presented by  the  applicant
\neither in person or through
\n444<\/span>
\nsuch authorised representative.\t Rule 22 requires that where
\nan  application\t or  memorandum of appeal is  signed  by  an
\nauthorised  representative, the latter must annex to it\t the
\nwriting constituting his authority and his acceptance of it.
\nUnder rule 25 an appeal to the Tribunal has to be  presented
\nin person or by an authorised representative and under\trule
\n28  every such appeal has to be preferred in the form  of  a
\nmemorandum signed by the appellant and his authorised repre-
\nsentative,  if any,  and verified by the appellant. Each  of
\nthe forms, from Form 7 to Form 20, contains separate  spaces
\nfor the signatures of the appellant or the applicant or\t the
\nclaimant  as the case may be and the authorised\t representa-
\ntive,  if any. Form 23 which is notice of hearing of  appeal
\nunder section 36 requires the attendance of the appellant or
\nrespondent  either inperson or by an authorised\t representa-
\ntive.\tRule  47 provides that, subject to  certain  special
\nprovisions, the provisions contained in Part II of the rules
\nrelating  to  the presentation, notices and  hearing  of  an
\nappeal\tbefore\tthe Appellate Tribunal shall  apply  to\t the
\npresentation, notices and hearing of a section 63  reference
\napplication  as if it were an appeal.  Rule 53 empowers\t the
\nTribunal,  if it considers it necessary, to hear the  appli-
\ncant  or  his authorised representative. A  perusal  of\t the
\nseveral\t rules referred to above will show that while  rules
\n15,  17 (2), 28 and the forms thereunder require the  appeal
\nor application to be signed by the appellant or applicant or
\nclaimant  as  well as by his authorised\t representative,  if
\nany,  rule 11 and Form 5 require only the signature  of\t the
\nassessee  in  the manner therein  prescribed  for  different
\ncategories  assessees. Again rules 17 (2), 25 and 47  permit
\npresentation  of applications and appeals by the  authorised
\nrepresentative\tof  the assessee whereas there is  no  such’
\nprovision  for the presentation by an authorised agent of  a
\nreturn\tunder rule 11 which could easily be inserted in\t the
\nrules  if  the Legislature so intended.\t That  wherever\t the
\nassessee  or the appellant or the applicant is\trequired  to
\nsign he must sign personally, is also borne out by note\t (1)
\nat  the\t foot of Form 20 which is for refund  of  tax  under
\nsection 48 (2).\t It runs as follows:\n<\/p>\n
445<\/span><\/p>\n
     “In the case of a person not resident in British India,
\nthe above declaration shall be sworn (a) before a Justice of
\nthe Peace, a Notary Public, a Commissioner of Oaths, if\t the
\napplicant  resides  in any part of His\tMajesty’s  Dominions
\noutside\t British  India, (b) before a  Magistrate  or  other
\nofficial of the State or a Political Officer, if he  resides
\nin a State in India, and (c) before a British Consul, if  he
\nresides elsewhere.”\n<\/p>\n
    This  does\tnot mean that only the claimant\t for  refund
\nunder section 48 (2) who resides outside India must sign his
\napplication personally and other assessees or appellants  or
\napplicants or claimants need not sign their return or appeal
\nor application personally. All that it means is that such  a
\nclaimant  for  refund  under section 48 (2)  must  have\t his
\nsignature authenticated by certain public officers by swear-
\ning  the declaration in their presence. This  clearly  indi-
\ncates that personal signature of the assessee, the appellant
\nor  applicant is necessary in all cases wherever his  signa-
\nture  is  required and authentication of such  signature  is
\nrequired  only in the case of a claimant for refund  of\t tax
\nunder  section 48 (2). There are yet other reasons why\tper-
\nsonal  signature  of an assessee,  appellant,  applicant  or
\nclaimant is necessary.\tIt has been seen that under the\t Act
\nand\/or the rules several acts can be done by or through\t the
\nauthorised representative, namely, production of  documents,
\npresentation  of  appeal  or application  and attendance  in
\nproceedings before the authorities.  The expression  “autho-
\nrised representative” is defined in rule 2 (a).\t It will  be
\nnoticed that in each case the authorised representative\t has
\nto  be\tduly  authorised in writing.   Under   rule  22\t the
\nauthorised   representative has to file the writing  consti-
\ntuting\this authority and his acceptance of it.\t If it\twere
\nintended  that they, signature by an agent on a return or  a
\nmemorandum  of appeal or other application will\t suffice  as
\nthe signature of the assessee or the appellant or the appli-
\ncant  or the claimant, there would certainly have been\tsome
\nrule for constitution of such agency in writing and for\t the
\nfiling\tof  the\t writing constituting such  agency  and\t the
\nagent’s acceptance of it.  If an agent for mere presentation
\nof an appeal is expressly required by the
\n446<\/span>
\nrules to be duly authorised in writing and such writing\t has
\nto  be\tfiled on record I cannot think that the Act  or\t the
\nrules  contemplate or permit the employment of an  agent  to
\nsign an important document, namely a return or an appeal  or
\napplication  without  any written authority  and  that\tsuch
\nagent may sign without producing any such written authority.
\nAnd yet that would be the result, for there is no  provision
\nin that behalf in the Act or in the rules.  On a  considera-
\ntion  of the provisions of the Act and of the rules and\t the
\nforms and for reasons stated above there appears to be\tmany
\nclear indications of an intention on the part of the  Legis-
\nlature to insist on the personal signature of the  assessee,
\nappellant or applicant whenever his signature is required by
\nthe  Act or the rules and the common law rule qui facit\t per
\nalium  facit per se is excluded by necessary implication  or
\nintendment of the Act and the rules.\n<\/p>\n
    The Appellate Tribunal and the High Court have  referred
\nto certain difficulties in arriving at this conclusion which
\nmay now be considered.\t It is pointed out that to insist On
\nthe personal signature of an individual assessee will result
\nin  the\t anomaly  that persons authorised to  sign  for\t the
\nassessees  of other categories will be free to get  the\t re-
\nturns signed by their own agents.  This argument really begs
\nthe  question. For reasons stated above none of the  persons
\ndesignated  in\tthe  footnote to Form 5\t are  authorised  to
\nemploy\tan  agent to sign for him and therefore\t no  anomaly
\n‘can arise.  If anything, the use of the word “himself” with
\nreference to an individual makes the position clearer so far
\nas such individual is concerned. There is an argument  based
\non  hardship   or inconvenience. Hardship  or  inconvenience
\ncannot\talter  the meaning of the language employed  by\t the
\nLegislature  if\t such meaning is clear on the  face  of\t the
\nstatute\t or  the  rules. Further, there is  no\thardship  or
\ninconvenience.\tIn the case of an illiterate person, he\t can
\nput  his mark which, by the Bengal General Clauses  Act,  is
\nincluded in the definition of “sign.”  If claim Form 20\t for
\nrefund of tax under section 48 (2) can be sent to a claimant
\nabroad for his signature before certain public
\n447<\/span>
\nofficer\t for  authentication, there can be  no\thardship  or
\ninconvenience in sending to him abroad the return in Form  5
\nfor  his signature without the necessity of any\t authentica-
\ntion  thereof It is said that such a construction will\tpre-
\nvent  a\t leper who, by reason of the loss  of  his  fingers,
\ncannot\teven put his mark.  Such cases will indeed  be\trare
\nand  in any event it will be for the Legislature to  rectify
\nthis:defect. Not to insist on personal signature on  returns
\nor  appeals or applications will let in signature  by  agent
\nnot  duly  authorised in writing and without  production  of
\nsuch  writing.\tIn that case the provisions for penalty\t for
\nfiling\tfalse returns may quite conceivably be difficult  of
\napplication.  The omission of a definition of the expression
\n“sign”\tso  as\tto include the signature of  an\t agent,\t the
\npresence of the provisions permitting only certain specified
\nacts, other than signing, to be done by or through an autho-
\nrised agent are significant and indicate that the  intention
\nof the Legislature is not to permit signature by an agent so
\nas to exclude the common law rule referred to above.
\n    Turning now to the judicial decisions cited before us it
\nwill  be found that Courts have insisted on personal  signa-
\nture  even when there were not so many clear indications  in
\nthe  statutes under consideration  in those cases  as  there
\nare  in the statute and the rules before us.  Thus in  Monks
\nv. Jackson( 1 ), which was a case under section 1 (3) of the
\nMunicipal  Elections Act     and 39 Vic., c. 40)  which\t re-
\nquired\tdelivery of the nomination paper” by  the  candidate
\nhimself\t or his proposer or seconder to the Town  Clerk”  it
\nwas  held  that this requirement was not  satisfied  by\t the
\ndelivery      it  by  an  agent.  In  The  Queen  v.  Mansel
\nJones(2), it was held that a person charged with any corrupt
\nor illegal practice at\ta  municipal election who was  enti-
\ntled, under section 38 of the Corrupt  and Illegal Practices
\nPrevention Act, 1883, to be\t “heard by himself” was\t not
\nentitled to be heard by\t  his counsel or solicitor.   In re-
\nPrince\tBlucher(9), the English Court of Appeal held that  a
\nproposal of composition
\n  (1)  (1876) L.R. 1 C.P.D. 683\t\t (2) L.R. 23  Q.B.D.\n<\/p>\n
29<\/span><\/p>\n
\t\t    (3) L.R. (1931) 2 Ch. 70
\n57<\/span>
\n448<\/span>
\nsigned by the solicitors of a debtor, who was, by reason  of
\nhis serious illness, unable to sign it, did not comply\twith
\nthe requirements of section 16 (1) of the Bank ruptcy’\tAct,
\n1914,  which required “a proposal in writing signed by him.”
\nThe  Court of Appeal applied the principles of the  decision
\nin Hyde v. Johnson(1) and in In re Whitley Partners Ltd.(2).
\nIn Luchman Bukshi Roy v. Runjeet Ram Panday(3), a Full Bench
\nof the Calcutta High Court held that an acknowledgment by  a
\nMooklear  was not sufficient for the purposes of  section  1
\n(5)  of the Limitation Act (XIV of 1859) which\trequired  an
\nacknowledgment signed by the mortgagee.\t Rankin C.J. held in
\nJapan  Cotton  Trading\tCo. Ltd. v.  Jajodia  Cotton  Mills,
\nLtd.(4) that a demand letter signed by the solicitors of the
\npetitioning  creditor was not a notice under section 163  of
\nthe  Indian Companies Act which as it then stood required  a
\ndemand\t“under his hand.”  A similar view was taken  by\t the
\nRangoon\t High  Court  in Manjeebhai Khataw &  Co.  v.  Jamal
\nBrothers  & Co. Ltd.(5) and M.A. Kureshi v. Argus  Footwear,
\nLtd. (6).  See also Wilson v. Wallani ( 7 ).  In  C.T.A.C.T.
\nNachiappa  Chettyar v. Secretary of State for  India(8),  it
\nwas  held that the registration of a firm on an\t application
\nsigned by the agent of the partners was ultra vires inasmuch
\nas  the rules framed under section 59 of the Income-tax\t Act
\nrequired an application signed by at least one of the  part-
\nners.\tIn Commissioner of Income-tax, Madras v.  Subba\t Rao
\n(9),  it was held that by reason of the\t word.\t“personally”
\noccurring  in  rule 6 of the Income-tax Rules  framed  under
\nsection\t 59 of the Income-tax Act, 1922, a  duly  authorised
\nagent  of a partner was precluded from signing on behalf  of
\nthe partner an application under section 26-A of the Act for
\nregistration of the firm.  In all these cases the common law
\nrule  was  not\tapplied, evidently  because  the  particular
\nstatutes  were\theld to indicate that the intention  was  to
\nexclude that rule.  This intention Was gathered from the use
\nof the
\n   (1) (1836) 2 Bing. (N.C) 776\t\t (2) (1886) L.R.  32
\nCh. D. 337
\n   (3)\t(1873) 20 W.R-375\t\t  (4) (1926)  I.L.R.\n<\/p>\n
54 Cal.\n<\/p>\n
   (5) I.L.R. 5 Rang. 483\t\t (6) I.L.R. 9  Rang.\n<\/p>\n
323<\/span><\/p>\n
   (7)\t(1880) L.R. 5 Ex. D. 155\t  (8) (1933)  I.L.R.
\n11 Rang. 380
\n(9) I.L.R. (1947) Mad. 167
\n   449<\/span>
\nword “himself” or “by him” or “under his hand” or “personal-
\nly.”  It is needless to say that such an intention may\talso
\nbe  gathered  from the nature of the particular\t statute  or
\ninferred  from the different provisions of the\tstatute\t and
\nthe  rules framed thereunder. As already stated,  there\t are
\nmany indications in the Bengal Agricultural Income-tax\tAct,
\n1944, and the rules made thereunder evidencing an  intention
\nto  exclude the common law rule in the matter of the  signa-
\nture of the assessee, appellant or applicant on the  return,
\nappeal or application.\n<\/p>\n
    The High Court referred to the case of’ In the matter of
\nCommissioner of Income-tax, C.P. & U.P. ( 1 ) and sought  to
\nfind  support for its views from the Circumstance  that\t the
\nCourt  in  that case rejected the return not on\t the  ground
\nthat it was bad because it was signed by an agent but on the
\nground\tthat  the power of attorney did\t not  authorise\t the
\nagent to sign it.  It is quite clear that the Court in\tthat
\ncase found it easier to decide the case on the latter ground
\nthan to enter upon a discussion of the first ground.  It  is
\nimpossible to read that case as an authority for the  propo-
\nsition\tthat  the signature of an agent was  permissible  at
\nall.  The Full Bench decision of the Allahabad High Court in
\nDeo  Narain  Rai v. Kukur Bind(‘2) referred to in  the\tHigh
\nCourt judgment before us does not appear to militate against
\nthe  views expressed above. On a construction of section  59
\nof  the Transfer of Property Act it was held that there\t was
\nnothing in the Act to exclude the application of the  common
\nlaw  rule. The only provision of that Act on which  reliance
\nwas -placed in establishing such exclusion was section\t123.
\nStanley\t C.J.\tpointed out that the language  of  the\tlast
\nmentioned  section  was\t elliptical  and  was  not  accurate
\ndraughtsmanship and, therefore, it could not be relied\tupon
\nin  construing section 59. The judgment of Banerjee J.\talso
\nmakes  it clear that he found nothing in the Act to  exclude
\nsignature  by an agent and that the words “on behalf of”  in
\nsection\t 123  were surplusage.\tIt is quite true  that\twhen
\nsignature  by  an agent is permissible, the writing  of\t the
\nname of
\n(1)  A.I.R. (1935) Oudh. 305\t       (2) (1902) I.L.R.  24
\nAll. 319.\n<\/p>\n
450<\/span><\/p>\n
the  principal by the agent is regarded as the signature  of
\nthe principal himself.\tBut this result only follows when it
\nis permissible for the agent to sign the name of the princi-
\npal.   If  on a construction of a statute  Signature  by  an
\nagent is not found permissible then the writing of the\tname
\nof  the principal by the agent however clearly he  may\thave
\nbeen authorised by the principal cannot possibly be regarded
\nas  the signature of the principal for the purposes of\tthat
\nstatute.   If  a statute requires personat  signature  of  a
\nperson,\t which\tincludes a mark, the signature or  the\tmark
\nmust  be that\t  the man himself.  There must\tbe  physical
\ncontact\t between that person and the signature or  the\tmark
\nput on the document.\n<\/p>\n
    The\t result, therefore, is that this appeal\t must  beac-
\ncepted\tand the question referred to the High Court must  be
\nanswered in the negative.  There will be no order for  costs
\nagainst\t the  assessee and the appellant  Commissioner\tmust
\nbear his own costs throughout.\n<\/p>\n
FAZL ALI J.–I agree.\n<\/p>\n
PATANJAL SASTRI J.–I agree.\n<\/p>\n
MUKHERJEA J.–I agree.\n<\/p>\n
MAHAJAN J.–The question of law referred to the
\nHigh Court and answered by it in the affirmative is in these
\nterms  :–“Whether  in the circumstances of this  case,\t the
\ndeclaration  in the form of return signed by the  illiterate
\nassessee by the pen of his son should be treated as properly
\nsigned\tand a valid return.”  The High Court was not  called
\nupon  to  answer the question whether an  income-tax  return
\ncould  be  validly  signed by an agent in the  name  of\t the
\nprincipal; on the other hand, the question as framed assumes
\nthat  the return was signed by the illiterate  assessee\t but
\nthat  the  pen affixing the signature was that of  his\tson.
\nThe physical act of putting the mark was made by the pen  or
\npossibly  by the hand of the son who was not the  agent\t ap-
\npointed\t by the father and was not otherwise  authorised  by
\nhim to sign for him.\n<\/p>\n
     451<\/span><\/p>\n
    No\tevidence was led and there is nothing whatsoever  on
\nthe  record to establish that this illiterate  assessee\t did
\nnot touch the pen or the hand of the son when the  signature
\nwas  affixed  on the return.  No precise definition  of\t the
\nword “signature” is given in the Indian Income-tax Act or in
\nany  other  law.   In the General Clauses Act  there  is  no
\nexhaustive definition of the word.  It merely says what\t the
\nword “signature” shall include.\t It includes the affixing of
\na mark.\t In India it is a well known practice that when\t the
\nexecutant of a document is illiterate he simply touches\t the
\npen  wherewith someone else signs his name for him.   Refer-
\nence in this connection may be made to page 972, para, 1659,
\nof  Gour  on The Law\t Transfer.  The\t signature  made  in
\nthese circumstances is personal signature of the  executant.
\nIt is his autograph.  No question of agency arises in such a
\nsituation.  This is what seems to have happened here as\t one
\ncan guess from the frame of the question. Be that as it may,
\nwithout any enquiry into the circumstances in which the\t pen
\nof  the\t son affixed the signature of the  assessee  on\t the
\nreturn\tit  could not be assumed that the son acted  as\t the
\nagent of the father and signed his name\t in that   capacity.
\nIn   my\t opinion the discussion of the question\t whether  an
\nagent  can  sign a return for an assessee was\toutside\t the
\nscope  of the question which the High Court was called\tupon
\nto answer.  The answer given in my view was a correct one.
\n    After  considerable thought I am disinclined to  reverse
\nthe decision of the High Court by placing an  interpretation
\non  the\t question  which it does not bear.  In\tan  ex-parte
\nhearing we had not the advantage of hearing any arguments in
\nsupport of the view taken by the High Court as the  respond-
\nent did not appear. It is unnecessary to express any opinion
\non the question whether an agent can sign for the  principal
\na  form\t of return under the Indian Income-tax Act  as\tthat
\nenquiry\t is outside the scope of the  question\treferred  to
\nthe High Court as already pointed out.\n<\/p>\n
   In  the  absence of any material to the  contrary  I\t am
\nsatisfied that the assessee  signed  the  return
\n58<\/span>
\n452<\/span>
\npersonally.  If the Income-tax Officer felt that the  asses-
\nsee  had not touched the pen or the hand of the\t person\t who
\nput  the signature on the return he should have called\tupon
\nthe assessee to appear before him and ascertain from him the
\ncircumstances in which the son’s pen was used for the signa-
\nture.  In  the matter of Commissioner of Income-tax, C.P.  &
\nU.P.(1), it was observed that it is the duty of the  Income-
\ntax Officer before he accepts a return signed by an agent to
\nsatisfy\t himself about the authority of the agent to do\t so.
\nIn  my\topinion,  it is equally the duty  of  an  Income-tax
\nOfficer before he rejects a return of an illiterate assessee
\nor  a person such as a leper, to satisfy himself that  there
\nwas no physical contact of the person with the mark  or\t the
\nsignature put on the form.  I agree with my brother Das that
\nthere should be physical  contact between the person and the
\nsignature or the mark put on the document, but I am afraid I
\ncannot\tagree with him that in this case that has  not\thap-
\npened.\tThe question to a certain extent assumes the contact
\nof the assessee with the pen of his son when it states\tthat
\nthe illiterate assessee’s signature was put with the pen  of
\nthe son.  Be that as it may, that circumstance has not\tbeen
\neliminated  in\tthe  case and that being  so,  the  question
\ncannot\tbe  answered in the manner proposed  by\t my  learned
\nbrother.  I  am further of the opinion\tthat  the  Incometax
\nOfficers  should  not  while administering  the\t law  create
\nunnecessary problems for the Courts.  In the present case if
\nthere  was any doubt in the mind of the Income-tax  Officer,
\nhe  should have called upon the illiterate assessee  to\t put
\nhis  mark  in his presence on the return and he\t should\t not
\nhave  acted hastily in assessing him under the penal  provi-
\nsions of the Act. Ignorant and illiterate people who are not
\nwell versed with the law of income-tax should be dealt\twith
\nmore sympathetically than was done here. They should not  be
\npenalised in the manner that the present assessee was  pena-
\nlised.\tIn  the result I would dismiss this  appeal.  Appeal
\nallowed.\n<\/p>\n
Agent for appellant: P.K. Bose.\n<\/p>\n
(1) A.I.R. 1935 Oudh. 305.\n<\/p>\n
     453<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of … vs Sri Keshab Chandra Mandal on 9 May, 1950 Equivalent citations: 1950 AIR 265, 1950 SCR 435 Author: S R Das Bench: Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan, Mehr Chand, Mukherjea, B.K., Das, Sudhi Ranjan PETITIONER: COMMISSIONER OF AGRICULTURALINCOME-TAX, BENGAL Vs. RESPONDENT: SRI KESHAB CHANDRA MANDAL DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-198174","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of ... vs Sri Keshab Chandra Mandal on 9 May, 1950 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/commissioner-of-vs-sri-keshab-chandra-mandal-on-9-may-1950\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner Of ... vs Sri Keshab Chandra Mandal on 9 May, 1950 - 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