# COMMISSIONER OF AGRICULTURAL INCOME-TAX, BENGAL v. SRI KESHAB CHANDRA MANDAL

- **Citation:** [1950] 1 S.C.R. 435
- **Court:** Supreme Court of India
- **Decided:** 1950
- **Case number:** Civil Appeal No. LXXXVUI of 1949
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissioner-of-agricultural-income-tax-bengal-v-sri-keshab-chandra-mandal-132
- **Pages:** 18

## Headnote

S.~.R.
SUPREME COURT REPORTS
COMMISSIONER OF AGRICULTURAL
INCOME-TAX, BENGAL
V.
SRI KESHAB CHANDRA MANDAL
[SAIYID FAZL ALI,
PATANJALI SASTRI,
MEHR CHAND MAHAJAN, MUKHERJEA
and DAS JJ.]
435
Bdngal Agriciiltiiral Income-tax Act, (IV of 1944), ss. 24, 57Riiles u.nder the Act, r. 11, Forni No. 5-Ret11rn of illiterate assessee
-Declaration signed by pen of son of a.ssessee-Va.Z-.-dity of ret11rnSignature by Agent-Permissibility-"· Qui facit per alium far.it
per se, " applicability of.
The Rules. framed under the Bengal Agricultural Income~tax
Act, 1944, provided that the declaration in a return of income !;ad to
be signed "in the case of an individual, by the individual himself."
A return of au illiterate assessee, Keshab Chandra l\fandal, was
signed in the vernacular as follows : " Sri Keshab Chftndrn l\Iandal
Ba· Sri J ugal Chandra Manda!," the latter being the son of the
asseosee.
The Appellate Tribunal referred to the High Court the
question "whether in the circumstances of the case, the dech1l'ation
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
Higa Court answered the question in the atlinnativo.
On appeal :
Held, per F.AZL ALI, PATANJALI SAS'.l'HI,
IIIGKHEHJEA and
DAS JJ. ('.\1.AHAJAN J. dissenting)-that the Bengal Agricultural
Income-tax Act, 1944, and the Rules framed thereunder contained
provisions indicating an intention to exclude the common law rule
qui facit per alium facit 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 appoating
on the return, the return was not properly signed and was not a
valid return.
MAHAJAN J.-As the question referrnd 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 whatso.ever on the record to establish that the assessee
did not touch the pen or the hand of the son when the signature
\'Ill.to 11ffmid, ttle High Court was right in answering the question in
the affirmative.
Judgment of the Calcutta High Court revrrsed.
55
1950
May 9
436
SUPREME COURT REPORTS
(1950)
1950
APPEAL from the High Court of Judicature at
'Commissioner Fort William: (Civil Appeal No. LXXXVUI of 1949.)
-of Agricultural
This was an appeal from the judgment and order
Incom,·tax
of the High Court of Judicature at Calcutta dated 16th
i<cs,,~b •Chandra :;epteRmbfer, 1948, d(G. N, hDaHs '.lnhdCR. P. Moodkerjee .i.J.)
Mandal
m a
e erence ma e to t e
1g
ourt un er section
63 (1) of the Bengal Agricultural 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 :-
.DasJ.
DAS ].-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 ins;ome 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 assesseefiledapetition before
the Agricultμral 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 a

## Text

S.~.R.
SUPREME COURT REPORTS
COMMISSIONER OF AGRICULTURAL
INCOME-TAX, BENGAL
V.
SRI KESHAB CHANDRA MANDAL
[SAIYID FAZL ALI,
PATANJALI SASTRI,
MEHR CHAND MAHAJAN, MUKHERJEA
and DAS JJ.]
435
Bdngal Agriciiltiiral Income-tax Act, (IV of 1944), ss. 24, 57Riiles u.nder the Act, r. 11, Forni No. 5-Ret11rn of illiterate assessee
-Declaration signed by pen of son of a.ssessee-Va.Z-.-dity of ret11rnSignature by Agent-Permissibility-"· Qui facit per alium far.it
per se, " applicability of.
The Rules. framed under the Bengal Agricultural Income~tax
Act, 1944, provided that the declaration in a return of income !;ad to
be signed "in the case of an individual, by the individual himself."
A return of au illiterate assessee, Keshab Chandra l\fandal, was
signed in the vernacular as follows : " Sri Keshab Chftndrn l\Iandal
Ba· Sri J ugal Chandra Manda!," the latter being the son of the
asseosee.
The Appellate Tribunal referred to the High Court the
question "whether in the circumstances of the case, the dech1l'ation
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
Higa Court answered the question in the atlinnativo.
On appeal :
Held, per F.AZL ALI, PATANJALI SAS'.l'HI,
IIIGKHEHJEA and
DAS JJ. ('.\1.AHAJAN J. dissenting)-that the Bengal Agricultural
Income-tax Act, 1944, and the Rules framed thereunder contained
provisions indicating an intention to exclude the common law rule
qui facit per alium facit 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 appoating
on the return, the return was not properly signed and was not a
valid return.
MAHAJAN J.-As the question referrnd 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 whatso.ever on the record to establish that the assessee
did not touch the pen or the hand of the son when the signature
\'Ill.to 11ffmid, ttle High Court was right in answering the question in
the affirmative.
Judgment of the Calcutta High Court revrrsed.
55
1950
May 9
436
SUPREME COURT REPORTS
(1950)
1950
APPEAL from the High Court of Judicature at
'Commissioner Fort William: (Civil Appeal No. LXXXVUI of 1949.)
-of Agricultural
This was an appeal from the judgment and order
Incom,·tax
of the High Court of Judicature at Calcutta dated 16th
i<cs,,~b •Chandra :;epteRmbfer, 1948, d(G. N, hDaHs '.lnhdCR. P. Moodkerjee .i.J.)
Mandal
m a
e erence ma e to t e
1g
ourt un er section
63 (1) of the Bengal Agricultural 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 :-
.DasJ.
DAS ].-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 ins;ome 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 assesseefiledapetition before
the Agricultμral 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
....
-s·.C.R .
SUPREME COURT REPORTS
437
also for a form of return.
This petition was signed in
1950
vernacular as follows : -
commissioner
"Sri Keshab Chandra Mandal x
of Agricultural
,
Income-tax
Ba: Sri Jugal Chandra Mandal' .
v.
Below that was the signature of his pleader H. Keshab Chandra
Nandi. \Vith this petition was attached a VakalatMandal
nama signed in vernacular in the manner following :
"Sri Keshab C]landra Mandal x
Ba : Sri J ugal Chandra Manda! of Bal ya. J.L
It will be noticed that in both the signatures,
against the name of Sri Keshab Chandra Manda} 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."
B:is son Sri Jugal Chandra Mandal attested the
·cross mark in the vakalatnama.
On receipt of this petition the Agricultu'ral 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, assessment would be made
under section 25 (5) of the Act.
On the 7th May, 1945, the assessee did not appear
personally. His son Jugal Chandra Manda! 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.
DasJ.
1950
v.
Kuhdb Chandra
Mandal
V..s J.
438
SUPREME COURT REPORTS
(1950]
The Agricultural Income-tax Officer stated in his
assessment order as follows :-
"A fresh return is submitted to-day. A remarkable difference is noticeable between the two returns.
Fi:rstTeturn 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 him-
·self but the second one has been signed by Jugal his
son for the assessee. Under the circumstances, 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
immediately 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 assessment 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 appli•
ed under section 63 ( 1) of the Act for a reference of
certain questions 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
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 reference came up before a Bench of the
Calcutta High Court (G. N. Das J, and R. P. Mooe
kerjee J .) who, for rea?ons stated in their judgment
..
-
S.C.R.
SUPREME COURT REPORTS
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 asscssee and the signature appearing on the
return as filed on the 7th :i\Iay, 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 Income-tax Officer in proceeding to assessment
without giving the assessee a further opportunity to
put his mark onthe return.
The High Court quoted the following <;ibservations of Blackburn J. in The Queen v. The justices
of 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; nevertheless, there may be cases in
which a statute may require personal signature."
Then, after stating that the Courts ought not to
restrict the common law rule qui Jacit per alfrtm
Jacit per se, unless the statute makes a personal
signature
indispensable, 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) (18!6) L.R. 8 Q.B. 305 at p. 307.
56
1950
Co111111.iss/011-cr
of A.~ricu!tural
b1L·o:nc·fax
,, .
jfn11dal
Das.f.
1950
Co1111nissio11:!r
~f Agriculftt1'al
lnco1n:!-fa:c
v.
Keshab Chantl1'a
lUandat
DasJ.
440
SUPREME COURT REPORTS
(1950}
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 personally. The High Court took the view that to avoid
such a patent anomaly which woul.d inevitably result
if the interpretation 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 argument 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 himself, 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 Lave defined the
-
I
·s.C.R.
SUPREME COURT REPORTS
441
word "sign" so as to include the signature by an
1950
agent. Section 25 (2) of the Act requires that if the
Commissio1tci·
Agricultural Income-tax Officer is not satisfied without of Agri<tt!ltural
requiring the presence of the person who made the
1nco111c-tax
return or the production of evidence that a return
v.
made under section 24 is correct and complete, he Keshal> C(handra
h 11
h
t .
· ·
h"
Mane/al
s a serve on sue person a no ice reqmrmg
1m, on
·
a date to be therein specified, either to attend at
Das.f.
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 Tribunal for the purposes of Chapter V, and to the Commissioner for the
purposes of section 37, the same powers as are vested
in 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 examining him on oath or affirmation,
compelling production · of documents and ir;suing
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 verification of
pleadings applica-ble 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 1'.nere 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 AppeUate Tribunal or
1950
Co1n11iiss!cncr
cf Agricu!tural
lnconw-tax
v.
K cshab Chandra
Mandal
Das].
442
SUPREME COURT REPORTS
(1950]
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 assessee, 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 d;;finition 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 omission of any provision in the Act
applying the P' ovisions of the Code of Civil Procedure
relating to the signing and verification of pleadings to
the signing and verification of the return while expressly a:lopting the provisions of that Code relating to-the
attendance and examination of witnesses, 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
significance. 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.
l
S.C.R.
SUPREME COURT REPORTS
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
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.
·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 manner. l{ule 13
prescribes the forms of appeals under section 34 and
rule 14 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 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 Iru::lia1i 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 representa.tive, if any, and allows such application to be
presented by the applicant either in person or through
1950
Conuuissz'un.cr
of Agricultur,:J
Inco111lJ-ta:1::
v.
lfrsliab Chandra
;<,fandal
Das J.
1950
Conunissioncr
of Agricultural
I nco11ic-ta x
.,
Keshab Chandra
Mand al
DasJ.
444
SUPREME COURT REPORTS
[19SOJ
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 representative, 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 representative, if any. Form 23 which is
notice of hearing of appeal under section 36 requires the
attendance of the appellant or respondenteitherinperson
or by an authorised representative. 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 applicant 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 sigi:ted 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 of assessees. Again rules
17 (2), 25 and 47 permit presentation of applications and
appeals by the authorised representative of the assessee
wh.ereas there is no sucli 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 :
S.C.R.
SUPREME COURT REPORTS
445
''In the case of a person not resident in British India,
1950
the above declaration shall be sworn·(·a) before a Justice
Comtnissioner
-0£ the Peace, a Notary Public, a Commissioner of Oaths,
of Agricult,.rat
if the applicant resides in any part of His Majesty's
Income-tax
Dominions outside British India, (b) before a Magisv.
trate or other official of the State or a Political Officer, Keshab c1ia .. <1ra
if he resides in a State in India, and ( c) before a British
Mandal
Consul, if he resides elsewhere."
DasJ.
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 swearing the declaration in
their presence. This clearly indicates that personal signature of the assessee, the appellant or' applicant is necessary in all cases wherever his signature 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 personal 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 doc1:Jments, presentation of appeal or application and
attendance in proceedings before the authorities. The
expression "authorised 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 constituting his authority
and his acceptance of it. If it were intended that the
•signature by an agent on a return or a memorandum
of appeal or other application will suffice as the signa-
,ture of the assessee or the appellant or the applicant 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__ pre~
sentation of an appeal is expressly required by the
Cou1111is . .,ion _'r
of A._f}ric11ltural
/t«.:0111.·-f:ax
v.
A·ushab Clurndra
Manda/
DasJ.
446
SUPREME COURT REPORTS
[1950]
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 consideration 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
Legislature to insist on the personal signature of the
assessee, appellant or applicant whenever his signatu:e
is required by the Act or the rules and the common
law rule qui facit per alium f acit 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 ail individual assessee will result in the anomaly that persons
authorised to sign for the assessees of other categories
will be free to get the returns 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 re·-
fund of tax under section 48 ( 2) can be sent to a claimant abroad for his signature before certain public
S.C.R.
SUPREME COURT REPORTS
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
authentication thereof. It is said that such a construction will prevent a leper who, by reason of the loss of
his fingers, cannot even put his mark. Such cases will
indeed be rare and· in anv event it will be for the
Legislature to rectify thiS.·defect. Not to insist on personal signature on returns or appeals or applications
will Jet 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 authorised 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
signature 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 Monl~s v. ]ackson( 1 ), which was a
case under section I (3) of the Municipal Elections Act
(38 ~nd ~9 Vic., c. 40) which required delivery of the
nommahon paper " by the candidate himself or his
proposer or seconder to the Town Clerk" it was held
th~t this requirement was not satisfied by the delivery
of it by an agent. In The Qiteen v. JY!ansel jones(2), it
~as held tha! a person charged with any corrupt or
illegal practice at a municipal election who was
entitled, under section 38 of the Corrupt and Illegal
P.ractice,~ Prevention. Act, 1883, to be "hear.d by
h1mse.lf.
was not entitled to be .heard by his counsel
or sohc1tor.
In In re Prince Blucher( 3 ), 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
1950
Co11uuissio11er
of Agricultural
Inconw·tax
v.
J{cshab Chandra
Mand al
Das].
448
SUPREME COURT REPORTS
[1950]
1950
signed by the solicitors of a debtor, who was, by reason
of his serious illness, unable to sign it, did not c;omply
Cmnmissloner
-0/ Agdc•dtural with the requirements of section 16 (1) of the Bank1,,comc-ta.<
ruptcy Act, 1914, which required "a proposal in
v.
writing signed by him." The Court of Appeal applied
Keshab Chandra the principles of the decision in Hyde v. Johnson( i) and
Mandal
in In re Whitley Partners Ltd.( 2 ).
In Luckman Buksh
;;~-;:,.
Roy v. Runjeet Ram Panday("), a Full Bench of the
Calcutta High Court held that an acknowledgment by
a Mooktear 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 Nlills, Ltd.(•) that a
demand Jetter 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 Ji,fanjeebhai
Khataw & Co. v. Jamal Brothers & Co. Ltd.(•) and
M.A. Kureshi v. Argus Footwear, Ltd. ( 6 )._ See also
Wilsonv. Wallani( 7 ).
InC.T.A.C.T.Nachiappa
Chettyar v. Secretary of State for India(•), 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
partners. 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) {1836J 2 Bing. (N.C.) 776
(2) (1886) L.R. 32 Ch. D. 337
(3) (1873) 20W.R. 375
(') (1926) I.L.R. 5' Cal._341i
(5) I.L.R. 5 Rang. '83
(6) I.L.R. 9 Rang. 323
(7l (1~80) L.R. 5 Ex. D. 155
(8) (193~ I.L.R. 11 Rang. 380
(9) I.L.R. (19'7) Mad.167
-:S.C.R.
SUPREME COURT REPORTS
449
word "himself" or "by him" or "under his hand"
1950
-0r "personally." It is needless to say that such an
f
Commissionet'
intention may _als_o be gathered from the nature o the of Agricultural
particular statute or inferred from the different proviIncome-tax
sions of the statute and the rules framed -thereunder.
v.
As already stated, there are many indications in the Keshab Chandt'a
Bengal Agricultural Income-tax Act, 1944, and the
M~at
rules made thereunder evidencing an intention to
Das J.
exclude the common law rule in the matter of the
-signature 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
proposition 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(~)
referred to in the High Court judgment before us does
not appear to milit_ate 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 011ly 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 ·
Qf Banerjee J. also makes it clear that he found,
nothing in th.e 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 sigiiature
by an agent is permissible, the writing ofthe name Qf
(1) A.IR. (1935) Oudh. 305
(2) (1902) I.L.R. 24 AIL 319.
450
SUPREME COURT REPORTS
(1950)
1950
the principal by the agent is regarded as the signature
of the principal himself. But this result only follows
Co11l1nissio1ic•r
of Agricultural when it is permissible for the agent to sign the name
Income-tax
of the principal. If on a construction of a statute
v.
signature by an agent is not found permissible then
Kcshab Chandra the writing of the name of the principal by the agent
Ma1tdal
however clearly he may have been authorised by th~
Das 1_
principal cannot possibly be regarded as the signature
of the principal for the purposes 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.
Fa>l Ali/.
The result, therefore, is that this appeal must be
accepted 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.
Patanjali Sastri J.
FAZL Au J.-I agree.
PATANJALI SASTRI J.-I agree.
MUKHERJEA J.-I agree.
Mukherjea J,
Mahajan/.
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
Hi;;h 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
appointed by the father and was not otherwise authorised by him to sign for him.
.
'
S.C.R.
SUPREME COURT REPORTS
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. Reference in this connection may
be made to page 972, para. 1659, of Gour on The Law
of Transfer. The signature niade 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 respondent 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
5~
1950
Co111nr.isslo11c,··
of Agrirnlturaf
lncottw-tax
v.
Kcs/iab Clumdr<&
Mandal
Mahajan].
1950
Cmn11iissioner
-of Agricultural
loco1nc-tax
v.
Kesl1ab Chandra
1lla11dal
}lfnhajan J.
452
SUPREME COURT REPORTS
(1950]
personally. If the Income-tax Officer felt that the
assessee 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 signature. In In the
matter of Commissioner of Income-tax, C.P. & U.P.('),
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 happened. 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 eliminate<!
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 ~ncome
tax 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 ca,lled upon the
illiterate assessee to put his m·ark in his presence on
the return and he should not have acted hastily in
assessing him under t_he penal provisions 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 penalised. In the result I would dismiss this appeal.
Appeal allowed.
Agent for appellant: P. K. Bose.
(1) A.I.R. 1930 Oudh. 305.