- (1.) These two appeals are filed against the common order of the CIT(A) dt. 29th Oct., 1987 dismissing the appeals as incompetent and not in accordance with law.
(2.) The appellant which is a public limited company was not functioning well, therefore, a committee of management was appointed by the High Court. The ITO made an ex parte assessment on 26th March, 1987 for the asst. yrs. 1975-76 and 1979-80. The memorandum of appeal in Form No. 35 was signed by one Sri B. K. Das for and on behalf of the company preferring appeal against the two assessment orders of the ITO stated above. The CIT(A) observed in the impugned order that as per r. 45(2) (c) of the IT Rules, 1962 the same should have been signed by the Managing Director of the company or by any Director of the company and since the same was signed by the advocate it was not in accordance with r. 45(2) (c) and, therefore, he dismissed the appeals as being incompetent and not as per law.
(3.) At the time of hearing on 5th Dec., 1991 Sri S. D. Tiwari, Chartered Accountant, who is one of the general power of attorney agent from one Shri C. L. Mittal, a Director of the appellant company, appeared and submitted that Sri B. K. Das, advocate was authorised to sign the memorandum of appeal (Form No. 35) for and on behalf of the company and he, therefore, preferred appeals before the CIT(A) against the orders of the ITO dt. 26th March, 1987. The appeals were, therefore, competent and the CIT(A) ought not to have dismissed the appeals as incompetent and not maintainable. It is also submitted by the general power of attorney agent that the provisions of r. 45(2) (c) are only directory and not mandatory. Besides, the signing of the appeal form by the advocate of the company was only a defect and irregularity and not a serious illegality so as to affect the jurisdiction of the CIT(A) to consider and entertain the appeals on merits. The GPA (General Power of Attorney Agent) on 5th Dec., 1991 was directed to file either the affidavit of B. K. Das, advocate or any responsible officer of the appellant company in this regard and the matter was adjourned and was finally taken up for hearing on 27th Dec., 1991. Sri S. D. Tiwari, GPA has filed an affidavit dt. 22nd Dec., 1991 (duly notarised) of accountant of the appellant company, namely Sri G. Jayavantha, son of Govindrao, resident of 372, Jagdishnagar, Bangalore, solemnly affirming that Sri B. K. Das, Advocate had valid vakalatnama in his favour and he was authorised to sign the appeal memo; the Board of Directors of the company was substituted by a committee of management and the High Court by its order in Civil Petition No. 221 of 1977 has discharged the committee and condoned any lapses or defaults committed by the said committee in complying with the various statutory provisions.;