JAGDISH SAHAI, J. - (1.) THE assessee Rai Shri Krishna Ji is the karta of a Hindu undivided family which was assessed to income-tax for the years 1944-45, 1945-46, 1946-47 and 1947-48 on its income from the business of sale and purchase of shares, the interest on securities and other sources. He was also assessed in his individual capacity for the year 1947-48. He filed five appeals before the Appellate Assistant Commissioner against the assessments mentioned above. THEse appeals were dismissed and the order of the Appellate Assistant Commissioner was communicated to the assessee on 6th October, 1948. THE assessee then filed five appeals before the Income-tax Appellate Tribunal, Allahabad Bench (hereinafter referred to as the Tribunal). In these appeals, the Income-tax Commissioner and not the Income-tax Officer had been impleaded as respondent. THE office of the Tribunal without noticing that the respondent in the appeals was the Income-tax Commissioner and not the Income-tax Officer registered the same and sent notices to the latter and not to the former in the usual course. When these appeals came up for hearing, the departmental representative raised a preliminary objection that the same were not maintainable inasmuch as in the array of respondents not the Income-tax Officer but the Income-tax Commissioner had been shown as the respondent. THE learned counsel appearing for the assessee prayed for time to amend the memorandum of appeals by impleading the Income-tax Officer as respondent. THE Tribunal took the view that the period of limitation for filing an appeal before the Tribunal being 60 days from the date of communication of the order of the Appellate Assistant Commissioner to the assessee, if the amendments were allowed and the Income-tax Officer impleaded at that stage, the appeals would stand barred by time against him as he would have been impleaded beyond the period of limitation provided for filing an appeal. THE Tribunal called upon the learned counsel for the assessee to show cause why the Income-tax Commissioner and not the Income-tax Officer had been impleaded as respondent. This the learned counsel for the assessee did not succeed in doing with the result that the Tribunal dismissed the five appeals mentioned above on 4th November, 1951. THEreafter, an application was made to it under section 66(1) of the Income-tax Act (hereinafter referred to as the Act) for questions of law noted below and a statement of case being submitted to this court. Consequently, the Tribunal has submitted the following questions to us for answer : (1) Whether, on the facts and in the circumstance of these cases the appeals as filed before the Tribunal were property framed and are competent ? (2) If not whether or not on the facts and in the circumstances of this case, the registration of the appeals and the issue of notices to the Income-tax Officer in ignorance of the above defect by office operated as a bar to the entertainability of the objection regarding the appeals as filed being incompetent ? (3) Whether, on the facts and in the circumstances of this case, the Tribunal was right in refusing to grant time to amend the memo of appeal and thereby implead the Income-tax Officer, Benares, as respondent ?
(2.) AN appeal to the Tribunal lies under section 33 of the Act. The relevant portions of that section read as follows : (1) ANy assessee objecting to an order passed by an Appellate Assistant Commissioner under section 28 or section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him. (2) The Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income-tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made within sixty days of the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner............ (3) AN appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner, and shall, except in the case of an appeal referred to in sub-section (2), be accompanied by a fee of one hundred rupees. (4) The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner. Under section 33(2) of the Act the right to direct an appeal being filed, if the department is dissatisfied with the order passed by the Appellate Assistant Commissioner, has been given to the Commissioner. If he considers that an appeal should be filed, he has to issue a direction to the Income-tax Officer to do so and the latter has no discretion in the matter but has to file the appeal. It is also noteworthy that under sub-section (4) of section 33, the Tribunal has to communicate its orders not to the Income-tax Officer but to the Commissioner. Similarly, the Commissioner, to the exclusion of the Income-tax Officer, is competent to apply to the Tribunal for submitting a statement of the case to the High Court under sub-section (1), and to the High Court for requiring the Tribunal to submit one under sub-section (2) or (3) of section 66 of the Act. It, therefore, appears to us that under the provisions of the Act, the real party, so far as the department is concerned, is the Commissioner and not the Income-tax Officer. This conclusion finds support also from the provisions of section 31(5) of the Act which requires that on the conclusion of the appeal before the Appellate Assistant Commissioner, he shall communicate the orders passed by him to the assessee and to the Commissioner. That provision also does not require that the orders should be communicated to the Income-tax Officer. Consequently, the Act itself envisages the Commissioner as the real party in an appeal before a Tribunal and the Income-tax Officer is only the agent of the Commissioner. It is true that rule 14 of the rules framed by the Tribunal under section 5A of the Act requires the Income-tax Officer to be impleaded as a party. The said rule reads as follows : In an appeal by an assessee under sub-section (1) of section 33...... the Income-tax Officer concerned shall be made a respondent to the appeal It is also true that under rule 22 of the rules framed by the Central Board of Revenue in the exercise of its powers conferred on it by section 59 of the Act, the appeal before the Tribunal has got to be in a prescribed form. In that form at the top the array of the parties has got to be shown. There is, however, nothing in the form to show that the Income-tax Officer has got to be shown as the appellant in an appeal filed under the direction of the Commissioner on behalf of the Government or as the respondent in an appeal filed by an assessee. No doubt, in column 3 of the form, it has got to be mentioned as to who was the Income-tax Officer who made the original order and in column 4 it has got to be mentioned as to who was the Appellate Assistant Commissioner who passed the order under section 31 or who was the Commissioner who passed the order under section 33B of the Act. But these obviously have got to be made in order to give the particulars of the case so that the record may be sent for from them and has got nothing to do with the question as to who are the necessary parties.
(3.) IT has been contended before us on behalf of the assessee that, under the provisions of section 5A(8) of the Act, the Tribunal can only regulate its own procedure and the procedure of its benches in all matters arising out of the discharge of its functions including the places at which the benches shall hold their sittings, but could not frame a rule requiring that the Income-tax Officer shall be made a party. IT is contended that, in the first place, as the opening words of sub-section (8) of section 5A itself disclose, the powers of the Tribunal under that clause are subject to the provisions of the Act with the result that, inasmuch as the Act itself makes the Commissioner the party on behalf of the department, no rule could have been framed that the Income-tax Officer to the exclusion of the Commissioner should be made a party. Secondly, it is submitted that the question as to who would be a party in a proceeding is not a matter relating to the regulation of procedure. Though we are not prepared to reject the submission made by the learned counsel for the assessee outright, we are of the opinion that it is really not necessary to go into that question in this case. It has also been brought to our notice that our brothers Gurtu and Upadhya on March 1, 1961, in Chhotey Lal Kishan Lal v. Commissioner of Income-tax have held that rule 14 was not ultra vires. That was a case where the Assistant Commissioner and not the Commissioner had been made a respondent. The facts of that case are, therefore, different from ours, Yet, inasmuch as our learned brothers have held that rule 14 is not ultra vires, we proceed on that assumption without committing ourselves to the view that it is necessarily intra vires. Even if for the purposes of this reference we proceed on the footing that rule 14 is a valid rule, it cannot be held that Commissioner was wrongly impleaded as a party. For the reasons that we have already given above, we are clear in our mind that the effect of the provisions of sections 31(5), 33 and 66 of the Act is that so far as the Government is concerned, the Commissioner is the main party in an appeal under section 33 of the Act and in fact in all proceedings in which the Union of India or the income-tax department is interested. The Commissioner is the executive head of the department in a State. He has got full control over the actions of the Income-tax Officer and can even revise his orders. Inasmuch as the Commissioner was made a party, it appears to us that in the appeals giving rise to this reference parties were properly represented. It is true that the Income-tax Officer was not made a party as required by rule 14, but he was served with a notice by the office of the Tribunal and had full knowledge of the appeal filed by the assessee. The factual position, therefore, is that the Commissioner was already a party to the appeal and the Income-tax Officer was also served. Thus it cannot be held that the appeals that the assessee had filed were not competent or that there was such a fatal defect which could have justified the Tribunal to dismiss them. The Income-tax Officer was not personally interested in the decision of the appeals. Even if he had been impleaded as a party, he would have been there to represent the Commissioner. In the case of Grainger v. Singer the question that arose for determination was whether an Inspector was a party personally to an appeal under the English statute and should personally be served. Rowlatt J. held that even though the case was not received personally by the Inspector, but at the office to which he originally belonged, it was sufficient service. The following observations of the learned judge may be quoted : Is it not the duty of the officer to take it in ? Does it not remain the duty of the office to take it in and forward it, if necessary, or give it to him if he is still there ? They did so, in fact; of course they may have done it merely to oblige. ;