P L D 1968 Karachi 515 (PLP)

3. In order to appreciate the contention of the parties it may be mentioned that the accountable party tiled the above appeal through Mr. A. N. Meghani, Advocate against the order of the Controller of Estate Duty. An objection was raised by the office of the Tribunal that the appeal was not drawn up in the prescribed form and the appellant was informed that the appeal had been provisionally admitted subject to the removal of the defect by him. A notice was issued on 11 th August 1960, to him giving an intimation that the appeal had been fixed for hearing on 15th September 1960. On the back of the notice a footnote was added that the appeal had been registered provisionally subject to the removal of the defect by the appellant as it had not been filed in the prescribed form and that the question whether the appeal was validly presented would be finally decided by the Appellate Income‑tax Tribunal. It is not disputed that this notice was served on the accountable party on 15th August 1960,. but no steps were taken to rectify the defects.

4. At the hearing of the appeal the Departmental Representative raised a preliminary objection that the appeal was, not properly presented as‑ it was not on the prescribed form and was liable to be dismissed for this reason. Mr. N. A. Meghani requested for adjournment of the case but it was refused on the ground that the accountable party had already been shown enough of indulgence. The Income‑tax Appellate, Tribunal found it as a fact that the Memorandum of Appeal filed by the appellant did not conform to form E. D. 12 (Rule 37) tin respect of two heads:

(1) Designation of the officer passing the original order, and (2) Address to which notice may be sent to the respondent, and dismissed the appeal as being defective. The validity of this order is the subject‑matter of reference before us.

5. Mr. Muhammadali Saeed, the learned counsel for the accountable party, has contended that the Appellate Income‑tax Tribunal had fallen into an error in holding that the appeal was not in the prescribed form. The learned counsel has further contended that the Tribunal was influenced by the fact that the word "shall" has been used in section 59 and the view of the Tribunal that any appeal not filed on the prescribed form is liable to be dismissed cannot be sustained. In support of his conten tion that the appeal was substantially complied with the form prescribed under rule 37 we were referred to the Memorandum of Appeal and it was conceded by Mr. Nusrat that both the lacunas referred to in the order of the Tribunal have been substantially complied with by the appellant in the Memorandum of Appeal. It was pointed out that the appellant had mentioned the designation of the officer passing the original order by referring in the body of the Memorandum of Appeal that he was aggrieved by the order of Controller of Estate Duty, Karachi. As regards the address to which notice was required to be sent to the respondent, reference was made to the title of the Memorandum of Appeal where the parties names are mentioned and the appellant has clearly mentioned in it that the appeal was against the Controller of Estate Duty, Karachi. Thus it is perfectly clear that both the objections on which the learned Appellate Tribunal rejected the appeal were of a superficial nature and information about them was available in the memorandum of appeal.

5. It cannot however be denied that the appellant in filing the memorandum of appeal before the Appellate Tribunal in some respect literally did not strictly comply with the form prescribed under the rules. So far as the designation of the officer passing the original order is concerned, it was mentioned at the proper place. He however did not give separately the address to which notice was to be sent to the respondent' as provided in the prescribed form. The only fault of the appellant, therefore, that can be said to have been committed by him is in respect of the address which he was required to give of the respondent. In our opinion the above defect in the memorandum of appeal filed by the accountable party was so superficial that it should not have resulted in depriving the accountable party of the right of appeal under a fiscal statute.

6. Moreover it will be noticed that under section 59 (1) there is no such word as "shall" from which it could be gathered that the filing of the appeal on the prescribed form was a mandatory provision and its failure was to result in serious consequences. At this stage it will be useful to reproduce section 59 (1): "Any person objecting to the valuation made or the estate duty determined by the Controller or denying his liability to account for the duty payable in respect of any property may, within ninety days of the receipt of the notice of demand under section 58‑D, appeal to the Appellate Tribunal in the prescribed manner." A bare reading of the above provision of law would show that the Legislature has used the word "may" while providing that the appeal should be filed in the prescribed form. There is nothing to show in it that the prescribed form was to be mandatory. It was contended by Mr. Nusrat that the word "may" should be read as "shall", but this Court is always reluctant to interpret statute in a manner which would deprive a citizen of the vested right of appeal.

7. It was also brought to our notice that under rule 37 which is in the following terms:

"The appeal under subsection (1) of section 59 shall be in Form E. D. 12." the filing of the appeal in the prescribed form is mandatory. In order to meet this point Mr. Mohammadali Saeed contended that the Department in the guise of the rules could not take away the vested right of appeal by making a provision in them that the appeal shall be filed in the prescribed form. In support of his contention the learned counsel referred us to a decision of the English Courts in The King v. Lincolnshire Appeal Tribunal Ex parte Stubbins ((1917) 1 K B D 1). In that case by Regulation 19 in Part I, section 11 of the Schedule to the Military Service (Regulations) Order, 1916, "Any person aggrieved by a decision of the local Tribunal . . . . and the military representative may appeal to the appellate tribunal for the area, against the decision of the local tribunal, by delivering to the local tribunal in the prescribed form, in duplicate, notice of appeal not later than three clear days after the decision of the local tribunal or within such' extended time as, for good reason shown, the local tribunal may allow. The local tribunal shall thereupon send to the other party to the application the duplicate notice of appeal." On February 23, 1916, a local tribunal granted the applicant total exemption from military service. The military representative immediately announced in the presence and hearing of the applicant that he should appeal, at the same time stating his grounds. On February 26, 1916, no copies of the prescribed form of notice of appeal being available, the military representative handed to the clerk of the local tribunal a list of the names of the persons in respect of whom he intended to appeal, including the name of the applicant; and some week before the appeal was heard the clerk discussed the matter with the applicant. Notwithstanding an objection by the applicant that they had no jurisdiction to hear it, upon the ground that the prescribed notice had not been given, the 4ppeal tribunal allowed the appeal. This order was challenged by a writ of certiorari in the King's Bench Division of the High Court. The Court of Appeal held that the statute gave an absolute right of appeal; that the provisions of Regulation 19 as to procedure were directory only and not imperative, and that non‑compliance with them had not deprived the military representative of his right of appeal. In this connection Lord Reading, C. J. observed at page 9 of the report as under :‑ "In the present case it is clear that the knowledge was brought to the mind of the applicant, but not "in the prescribed form, in duplicate" within the strict letter of the regulation. In my judgment it is not necessary to comply with the letter when there is a compliance with the spirit of the regulation. There is no reason apparent to me why the jurisdiction of the Appellate Tribunal should not be exercised when in fact the whole object of the regulation has been safeguarded. Doubtless it was intended by the regulations to prevent controversy arising as to whether notice of appeal had been given or not by providing that the notice is to be given in a prescribed form in duplicate, which involves its being given in writing; but when once it is an admitted fact that the applicant knew within the requisite time, it seems to me that it would be straining the law to say that such a technical compliance with the very words of this regulation as the applicant contends is necessary is a condition precedent to the exercise by the Appellate Tribunal of its jurisdiction. Consider what the effect would be if we were to hold that this technical compliance was a condi tion precedent. The `prescribed form' apparently, did not exist at Winterton. Presumably the military representative did not know what the form was; at any rate, he did not know it by heart and had not one available. If he had written words in the form of a letter or on a piece of paper to the effect that he intended to appeal from the decision and had handed it in duplicate to the clerk, could it then have been said that the Appellate Tribunal had no jurisdiction? If we were to apply the letter as strictly as has been suggested on behalf of the applicant, this Court would be bound to say that the Appellate Tribunal would still have no jurisdiction because the words in the regulation "in the prescribed form" had not been complied with. Again suppose the military representative had handed is a notice of appeal in the prescribed form but not in duplicate, and the local tribunal had thereupon made out a duplicate and had sent it to the applicant, if the contention on the applicant's behalf is right, it would follow that the Appellate Tribunal would have no jurisdiction because the military representative when giving his notice of appeal within the three days had not delivered it in duplicate. It appears to me that so to hold would be a mere slavish adherence to the exact words of the "regulations without appreciating that they are made in order that there should be due notice given, and consequently I am unable to come to the conclusion which Mr. Emery on the applicant's behalf asks me to come to. There is no grievance on the merits, and in spirit the regulation has been complied with, although it may be true that in the letter there has been failure to observe the provision. We are invited by Mr. Emery .to go almost if not quite as far as the decisions upon the Statute of Frauds, which show that the statute is not . complied with if it is necessary to connect two documents together by means of oral evidence. He contended that the list containing the names of the persons affected by the intended appeals handed in by the military representative cannot be taken notice of by us because it was accompanied by a verbal statement of the intention to appeal without that statement being in the form of a heading on the list; and again Mr. Emery would be right if we were bound to regard compliance with every letter of the regulation as a condition precedent to the exercise of the jurisdiction; but for the reasons I have given I think that the Appellate Tribunal had jurisdiction, and the rule must therefore be discharged."

8. In this connection it will be noticed that some of the provisions of the Civil Procedure Code applicable to plaints and memoranda of appeal are in mandatory language. Both Order VI, rule 14, C. P. C. and Order XLI, rule 1, C. P. L. lay down that every pleading and appeal respectively shall be signed by the party or his pleader. But the concensus of opinion of all the High Courts in the sub‑continent is that any defect in this respect is only an irregularity and not an illegality. In Mohini Das v. Bungsi Buddan Shah Das (I L R 17 Cal. 580) the Privy Council held that such defects are not fatal. We have noticed that in the Indian Jurisdiction these principles have been followed in two Income‑tax cases Sheonath Singh v. Commissioner of Income‑tax, West Bengal (A I R 1958 Cal. 606) and Smt. Gouri Kumari Devi v. Commissioner of Income-tax (A I R 1960 Pat. 270). It was held in these cases that the Income‑tax Authorities were clearly in error in holding that the non‑signature of the appellant at the proper places of the memoranda of appeal as required by the statutory rule, was a material defect which prevented them from accepting the document as good memoranda. In our view also failure to comply strictly with the letter of the rules when there is a substantial compliance with the spirit of the relevant rules ought not to have resulted in depriving the assessee of the valuable right of appeal vested in him. We have also found much force in the contention of Mr. Muhammadan Saced that under section 59 the filing of the appeal in the prescribed form is not mandatory. It is only under rule 37 that it has been made obligatory and by doing so the rule‑making authority could not take away the vested right of appeal recognised in the above‑mentioned provision of law. It is unnecessary to mention that rules of procedure ordinarily are, directory in nature and their non‑observance are not fatal.

9. After carefully considering the argument of the learned counsel for the parties, we would hold that the Appellate Income‑tax Tribunal on the point under consideration had fallen into an error. In the first place, it was misled by a wrong impression that section 59 (1) of the Estate Duty Act contains the word "shall" and the presentation of the appeal‑in a prescribed form was a mandatory provision. Secondly, the learned Tribunal failed to notice that the accountable person has substantially complied with the prescribed form and that all the information which was required had been furnished in the Memorandum of appeal. It was, therefore, not one of these cases where any serious notice should have been taken for failure to strictly follow in letter the prescribed form. As already observed, the presentation of the memorandum of appeal in prescribed form under rule 37 being directory in nature, its non‑compliance ought not to have resulted in the rejection of the appeal. We would, therefore, answer the question referred to this Court in the negative. The Income‑tax Appellate Tribunal is expected to restore the appeal filed by the accountable person and to dispose it of on merits according to law.

10. In the result, subject to the above' remarks, we would, answer the question referred to us as above. The costs of these proceedings will be borne by the parties. S. Q. Reference answered in the negative.