1994 PLP (Trib (PTD)

"Per Fazal Ali, Patanjali Sastri, Mukherjea and Das, JJ.

Under the Bengal Agricultural Income Tax Act, 1944, the declaration in the form of return of an individual assessee should be signed by the assessee .himself and not by his agent. A consideration of the Act and the rules made thereunder indicates a clear intention on the part of the Legislature to exclude the common law rule of qui Tacit per alium facit per se in such a case. . When the statute permits signature by an agent, the writing of the name of 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 principal. 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 purpose of that statute. If a statute requires personal signature of a person, which includes a mark, the signature or the mark must be that of the man himself. There must be physical contact between that person and the signature or the mark put on the document." On a reference under the Bengal Agricultural Income-tax Act, 1944, of the question, "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." Held. (by Fazal Ali. Patanjali. Sastri. Mukherjea and Das. JJ Mahajan. J. contra) that as there was no physical contact between the assessee and the signature appearing on the return, it was not a valid return. Per Mahajan, J: --There should be physical contact between the person and the signature or the mark put on the document but it could not be said that that has not happened in the case. Signature includes the fixing 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 where with some one else signs his name for him. The signature made in these circumstances is personal signature of the execution. In the absence of any material to establish that the illiterate assessee did not touch the pen or the hand of the son when the signature was affixed on the return, it should be held that the assessee signed the return personally." It is pertinent to point out that provisions of Bengal Agricultural Income Tax are similar to the provisions of Income Tax Ordinance, 1979. The relevant extract from the Honourable Supreme Court in the above case are as under: -- "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 Hindu undivided family by the, Manager or Karta; (c) in the case of a company or the Ruler of 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." "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 alternatives 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 Commissioner. Subsection (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 subsection (4) of that section also requires that such an appeal must be in the prescribed form and be verified in the prescribed manner. Rule 13 prescribes the forms of appeals under section 63 of the Act. Rule 15 is as follows:-- "The forms of appeal prescribed by Rules 13 and 14 and the forms of verification appended hereto shall be signed-- (a) in the case of an individual, by the individual himself; (b) in the case of 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 number of the association and such forms of appeal shall be also signed by the authorised representative, if any, of the appellant."

15. It has already been mentioned that provisions of Income Tax Ordinance, 1979 are similar to West Bengal Agricultural Income Tax. Section 55 of the Income Tax Ordinance, 1979 and section 2(41) of the Income Tax Ordinance, 1979 have been reproduced in the foregoing paragraphs. However, in order to facilitate comparison the provisions of section 2(41) are reproduced as under:-- "2(41) `return of total income' means the return of total income in the prescribed form, setting forth such particulars and accompanied by such statements, certificates and other documents, and verified in such manner, as may be prescribed;" Now as far as Rule 190 laid down in the prescribed pro forma the return of total income is part of Rule

190. The relevant extract from the Rule 190 is reproduced as under:-- "190(2) The return of total income required to be furnished under section 55 shall, in the case of persons deriving income under the heads specified in section 15 shall be in the following form and shall be verified in the manner and accompanied by the statements and certificates indicated therein namely:-- The part relevant to verification in Rule 190(2) in prescribed pro forma which form part of Rule 190(2) is reproduced as under: I, the undersigned, solemnly declare that to the best of my knowledge and belief-- (a) the information given in this Return and the Annexure(s) and statement(s) accompanying it is correct and complete; (b) the amount of income and other particulars are truly stated; (c) during the year for which this Return is made-- (i) no other income was received, or deemed to have been received by me or on my behalf/by or on behalf of the firm/the company/the local authority/the association/the H.U.F. . (ii) no other income accrued or arose or deemed to have accrued or arisen to me/the firm/the company/the local authority/the association/the H.U.F. . (iii) I, the firm/the company/the local authority/the association/the H.U.F. had no other source of income; and (iv) I/the, firm/the company/the local authority/the H.U.F. was resident/non-resident in Pakistan. I further declare that I am competent to make this Return and verify it in my capacity as

of

Signature:

. Name in Block letters:

Dated: Name of Father/Husband: Note.--l. Any person making false statement or furnishing incorrect particulars is liable of penalty prosecution or both under the Income Tax Ordinance, 1979.

2. The verification should be signed-- (a) in the case of individual by the individual himself; (b) in the case of firm, by partner; (c) in the case of local authority, by the Principal Officer; (d) in the case of association of persons, by members of the association; (e) in the case of company, the. Principal Officer; and (f) in the case of Hindu undivided family by the manager.

3. Any assessee whose total income is rupees fifty thousand or more shall attach with the return a wealth statement in the prescribed form". From the above comparison it is quite clear that provisions so far as filing of return of total income are similar in the West Bengal Agricultural Income Tax and Income Tax Ordinance, 1979.

16. From the decision of the Honourable Supreme Court of India it is quite evident that return of total income, which is not signed and verified in the manner prescribed under the relevant statute and Rules thereunder is not a valid return.

17. Respectfully following the decision of Honourable Supreme Court of India in the above case we are of the view that in this case return of Income filed for the year under consideration not signed by the assessee is not a valid return. Because of foregoing reasons the order of learned C.I.T. (Appeals), Zone VII, Karachi in this case for the assessment year under consideration is vacated and that of Income Tax Officer is restored. M.BA./2593/T Order accordingly.