1. This Miscellaneous Petition filed by the Revenue is arising out the order of the Tribunal dated 6-6-2005. This Miscellaneous Petition is filed by the Senior Authorised Representative of the Department of ITAT, 'A' Bench.
2. As this Miscellaneous Petition is filed by the Senior Authorised Representative of the Department, whether this is maintainable or not? First of all, we have to decide this question. To decide whether the Authorised Representative or the Departmental Representative can file Miscellaneous Petition or not, we have to refer to ITAT Rules. The procedure for filing of applications under Section 254(2) is provided in Rule 34A of Appellate Tribunal Rules, 1963 (hereinafter called as the "Tribunal Rules"). The relevant Sub-rule (2) to Rule 34A of Tribunal Rules, 1963 provides for filing the applications which reads as under : -- (2) Every application made under Sub-rule (1) shall be in triplicate and the procedure for filing of appeals in these rules will apply mutatis mutandis to such applications.
3. It is seen from the above that the procedure for filing of applications is at par with the filing of appeal and the Rules framed under Tribunal Rules for filing of appeal will apply mutatis mutandis to Miscellaneous Petitions as well as stay applications and other applications also. Now, we have to see what is the procedure for filing and signing of appeals as provided in section 253(6) of Income-tax Act, 1961 (hereinafter called as the "Act").
4. Section 253(6) of the Act prescribes that, an appeal to the Tribunal shall be in the prescribed form and shall be verified in the prescribed manner. The relevant section 253(6) for filing of appeal to the Appellate Tribunal reads as under:-- 253(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, in the case of an appeal made, on or after the 1st day of October, 1998 irrespective of the date of initiation of the assessment proceedings relating thereto, be accompanied by a fee of-- Provided that no such shall be payable in the case of an appeal referred to in Sub-section (2) or a memorandum of cross-objections referred to in Sub-section (4).
5. The Income-tax Rules, 1962 prescribes an appeal shall be in Form No.36 appended to the Rules and the form gives the required verification portion. It is also prescribed in the said Rule 47 that the Memorandum and the Grounds of Appeal as also the verification portion shall be signed by the Appellant as prescribed under Rule 45(2).
6. As this Miscellaneous Petition filed by the Revenue is signed by the Senior Authorised Representative and not by the Assessing Officer, in view of the above provisions laid down by the Legislature, whether this Miscellaneous Petition of the revenue is maintainable? We have to go through the case law cited by both the sides. The learned D.R. relied on the judgment of Hon'ble jurisdictional High Court in the case of P.Kuttikrishna Nair v. ITA and argued that the Tribunal can consider the Miscellaneous Petition suo motu and the Tribunal, in exercise of its own powers, can verify the mistake whether pointed out by the D.R. or on its own. We have gone through the case law relied on by the learned D.R. and seen that this decision of the Hon'ble jurisdictional High Court pertains to the old Income-tax Act of 1922 where rectification by the Tribunal is provided under Section 35 of the old Act and in section 35 of the old Act, it was specifically provided that the words "in like manner" appearing in Sub-section (2) of section 35 in relation to Sub-section (1) of section 35 are not sufficient to apprehend the Authorised Representative of the Income-tax Department.
7. In this decision of the Hon'ble jurisdictional High Court, it has been specifically stated that, in this respect, the Authorised Representative stands in the same position as an outsider and he has got the right to draw the attention of the Tribunal to any mistake which it might have made, but the Tribunal may, if it thinks fit, can ignore the representation. The situation has been dealt with by the Hon'ble jurisdictional High Court in para 19 of its order which reads as under :-- Similarly we can find no support in the language of the section or the contention of Mr, Viswanatha Aiyar, that once the authorised representative of the Department draws the attention of the Tribunal to a mistake it has made it is deprived of its jurisdiction to act.
There are just no words in the section sufficient to produce that meaning. Though normally only the persons interested in the result would draw the attention of the Tribunal to a mistake it has made, it is in theory open to anybody to do so. In that sense everybody has got a "right" to draw the attention of the Tribunal to any mistake it may have made. But the Tribunal is not bound to act on any representation made to it unless the representation is that of the assessee. The assessee has a right just like anyone else to draw the attention of the Tribunal to a mistake it may have made but he has a further right to insist that the Tribunal shall examine the representation he has made. In this respect the authorised representative stands in the same position as an outsider. He has got a right to draw the attention of the Tribunal to any mistake it might have made, but the Tribunal may, if it thinks fit, ignore the representation.
8. Even in the present Act, i.e., Income-tax Act, 1961 the provisions of section 254(2) provides for filing of rectification application i.e,, Miscellaneous Petition. First of all, we want to reproduce the relevant provision which reads as under :-- 254(2) Orders of Appellate Tribunal--The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer.
9. The above provision of the Act very clearly states that the amendment in the order of the Tribunal can be made if there is a mistake apparent from record and which is brought to the notice by the assessee or the Assessing Officer as the case may be. If we read together the entire provisions of the Income-tax Act, 1961, Income-tax Rules, 1962 and Tribunal Rules, 1963 it clearly emerges that an application for rectification of mistake in the shape of Miscellaneous Petition can be filed either by the assessee or the Assessing Officer, as the case may be. The relevant rule of Tribunal Rules, 1963 i.e,, Rule 34A(2) which is made applicable to the applications filed by both the parties will apply to the appeals and this provision was brought on Statute book as amended by the Income-tax (Appellate Tribunal) (Amendment) Rules, 1991 with effect from 25-7-1991. In the old Income-tax Act, 1922, the word appearing "in like manner" in Sub-section 2 of section 35 which does not appear in section 254(2) of the Income-tax Act, 1961, the provision is very clear that if mistake is brought to the notice of the Tribunal by the assessee or the Assessing Officer, the same can be rectified, subject to the provisions of Law.
10. The only interested persons in the result can draw the attention of the Tribunal to a mistake it has made and the Tribunal has to act on representation made to it by the assessee or by the Department i.e., through Assessing Officer only who is party to the appeal. The assessee or the Assessing Officer has a right just like a party to draw the attention of the Tribunal to a mistake it might have made but they have a further right to insist that the Tribunal shall examine the representation they have made, 11. In regard to this and in view of the above legal and factual situation, the Authorised Representative whether of the revenue or of the assessee stands in the same position as an outsider.
12. As discussed above, the only person competent to sign and verify an appeal should sign and verify the various applications like Miscellaneous Petition, Stay Petition and others. Where the signature and verification on the Memorandum of Appeal was made by any agent of the assessee or of the revenue and not by the assessee or the Assessing Officer, it cannot be held that the -appeal or any application filed is a valid appeal or application.
This view has been fortified by the Hon'ble Allahabad High Court decision in Special Manager, Court of Wards, Naraindas Narsinghdas v.CIT [1950] 18 ITR 204 wherein it was held (Head Notes) as under :-- The instruction contained in the footnote appended to Form C(I) prescribed by Rule 21 of the Indian Income-tax Rules, 1922, is not ultra vires the rule-making power of the Central Board of Revenue.
Where an appeal was filed before the Appellate Assistant Commissioner against an order of the Income-tax Officer under Section 25A of the Indian Income-tax Act but the signature and verification on the memorandum of appeal was made by an agent of the appellant and not by the appellant personally : Held that the appeal filed was invalid.
An order of the Appellate Assistant Commissioner refusing to entertain an appeal on the ground that it is time-barred is not an order under Section 31 and no appeal lies to the Appellate Tribunal against such an order.
13. The common law of signatures is covered by the dictum qui facit per alium facit per se. This dictum means that a person can do himself what can equally be done by his authorised agent. It is very well-settled that unless there is a specific provision of law requiring the signatures and verification of assessee the signature, etc., may be validly affixed by the constituted attorney; but as far as appeal to Appellate Tribunal is concerned, the same is governed by Section 253(6) and Miscellaneous Petitions are governed by Section 254(2) of the Income-tax Act. The appeal to the Tribunal is filed in Form No. 36 which states that the appeal is to be signed and verified by the assessee or the Assessing Officer, as the case may be. Further, as per the Tribunal Rules, 1963, Rule 34A deals with the applications under Section 254(2) and equates the procedure for filing of appeal with that of these applications under Sub-rule 2 to Rule 34A of the Tribunal Rules, 1963. The only exception is with the filing of applications or appeal by the assessee. The system as enumerated for filing of return of income is provided under Section 140 wherein it is mentioned that return by assessee is to be signed or the situations as described in the provisions will apply to the appeal as well as various applications to be filed to the IT AT. As far as the revenue is concerned, the Miscellaneous Petition as well as the appeals are to be signed by the Assessing Officer and none other than the Assessing Officer. But in the present case, the Department is at liberty to file a fresh Miscellaneous Petition through Assessing Officer.
14. In view of this legal situation as described above, we are of the considered opinion that this Miscellaneous Petition of the Revenue is not maintainable. Hence, the Miscellaneous Petition is dismissed as non-maintainable.