MASUD, J. - (1.) THE question of law raised in the reference has been referred to us under the order of the High Court of Judicature at Calcutta dated the 3rd June, 1960. THE relevant year of assessment is 1952- 53 and the corresponding accounting period is the Diwali year 2008. THE ITO has made the assessment under the provision of s. 22(4) of the IT Act, 1922, on account of the failure on the part of the assessee to comply fully with the notice under s. 22(4) issued by him. In the assessment order the assessee was described as "M/s Chandmull Pannalal, Prop. : Pannalal Juniwal", and the assessment was made in the status of an individual. Being aggrieved by the assessment, an appeal was filed before the AAC by "Chandmull Pannalal", the grounds of the appeal having been verified as Pannalal, the Karta of the HUF. THE AAC dismissed the appeal and confirmed the assessment by its consolidated order dt. 10th Feb., 1958. THEreafter, a second appeal was filed by "Chandmull Pannalal" before the Tribunal, but the memorandum of appeal was verified by Pannalal Juniwal describing himself as the Karta of the HUF. A preliminary objection was taken before the Tribunal on behalf of the Department to the effect that as the appeal was filed by "Chandmull Pannalal", an HUF, through Pannalal Juniwal, the Karta of the HUF, the appeal was incompetent. THE Tribunal found that the assessment had been made on "Chandmull Pannalal" in the status of an individual and as such, the appeal filed by "Chandmull Pannalal", the HUF, was not maintainable and, accordingly, the appeal was dismissed on the said preliminary point. On the above facts, the following question of law has been referred to the High Court : "Whether, in the facts and circumstances of the case, an appeal lay by the HUF against the order of the ITO assessing the individual ?"
(2.) IT may be noted that the preliminary point of law has been raised for the first time by the Revenue before the Tribunal, although the memorandum of appeal before the AAC against the assessment of the ITO had been made by Pannalal as Karta of Chandmull Pannalal, an HUF. Under s. 33 of the Act appeals to the Tribunal can only be filed by an assessee objecting to an order passed by the AAC within 60 days of the date on which such order is communicated to him. "Assessee", under s. 2(2) means a person by whom income-tax or any other sum of money is payable under the Act, and includes every person in respect of whom any proceeding under the Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him. Now, in this particular case, the assessment has been made against "M/s Chandmull Pannalal, Prop. : Sri Pannalal Juniwal", as an individual. According to the Revenue, the appeal should have been filed by the said Chandmull Pannalal Juniwal in his individual capacity and not by him as the Karta of "Chandmull Pannalal", an HUF. There is some force in this contention inasmuch as the appellant before the Tribunal cannot strictly be called the "assessee" within the meaning of s. 33. But in our opinion, the objection raised is of a highly technical nature and is more one of form than of substance. Notice under s. 22(2) was served on "Chandmull Pannalal, Prop. Chandmull Pannalal Juniwal". The ITO has made the assessment in the name of "Chandmull Pannalal, Prop. Chandmull Pannalal Juniwal". The order of the AAC has also described the assessee as "M/s Chandmull Pannalal, Prop. Sri Pannalal Juniwal". Neither the Department nor the AAC at the stage questioned the maintainability of the appeal although under s. 30, the appeal before the AAC has not duly been filed by the person against whom the assessment order has been made by the ITO. The obvious reason why no objection has been made at that stage is because there was no mistake as to the identity of the assessee although the description of the assessee has not been correctly made. IT is unfortunate that this preliminary point has been raised for the first time before the Tribunal and the Tribunal without deciding the merits of the appeal dismissed the same on such preliminary ground. Apart from this reference, there are three more references pending before us where the similar point of law has been referred to the High Court for different asst. yrs. A similar point was raised in L.N. Gadodia and Co. vs. CIT (1958) 34 ITR 416 (Punj) : TC6R.129, where Falshaw J. has stated : "The point raised is a highly technical one and it would certainly appear to involve great hardship on the assessee if he were not only to be denied any further relief to which he might be entitled without any hearing on the merits of his appeal by the Tribunal, but were also to be deprived of the relief granted to him by the AAC, including his recognition as a registered firm instead of a HUF, simply on the ground that the appellants have not been correctly described in the memorandum of appeal preferred to the AAC." Similarly, Tek Chand, J. has, on a similar point of law, stated in Gian Chand Vir Bhan vs. CIT (1960) 39 ITR 414 (Punj) : TC8R.418: "The decision of the Tribunal does not appear to be correct and the applicant ought not to have been deprived of a hearing simply because he had described himself as a member of the partnership firm..... The contention which Vir Bhan desires to raise before the Tribunal, among others, is that his firm should have been taxed not as HUF but as an ordinary partnership firm. At the worst, signing his name and describing himself as member of the firm can be deemed as a misdescription and for such a misdescription the right of appeal cannot be taken away." Mr. Sachindra Kumar Ray, learned advocate for the applicant, has strongly relied on these two cases and has submitted that the principles of law decided in those two cases should be applied to the instant case inasmuch as the facts are more or less similar. Mr. Balai Pal, learned counsel for the CIT, has not challenged the correctness of those two decisions but he has tried to distinguish those two cases from the facts of the instant case on the ground that in both the cases notices were issued by the ITO to the assessee as a partner and the appeals also were filed in both the cases by the partner. But the distinction that he has sought to make is without any difference. In L.N. Gadodia and Co. vs. CIT (supra), Gadodia and Co. consisted of two members, Gadodia and his son, Ram Gopal. The application of Gadodia and Co., for registration under s. 26A of the IT Act was dismissed and Gadodia and Co. was assessed in the status of an HUF. Two appeals were filed by Ram Gopal in the name of their firm, Gadodia and Co., one against the order refusing registration under s. 26A and the other against the assessment order on the ground that the ITO has erred in assessing Gadodia and Co. in the status of a joint Hindu family. The AAC accepted the appeal and, in accordance with the decision of the Tribunal in regard to the assessment of the assessee for the immediately preceding assessment year, directed the ITO to register the firm and granted some other relief also. A further appeal was filed by Gadodia on behalf of the firm, Gadodia and Co., before the Tribunal to obtain certain other reliefs. The Department raised a preliminary objection to the maintainability of the appeal contending that the appeal before the AAC ought to have been in the name of the joint Hindu family and no appeal could have been filed in the name of the firm. The Punjab High Court held, on the facts, that whether Gadodia and Co. was a joint family or a firm, the appeal to the AAC was on behalf of Gadodia and Ram Gopal who were its members, and as in the appeal they challenged not only the assessment but the basis for it, the appeal from the order of the ITO was by the assessee and was, therefore, maintainable. Similarly, in Gian Chand Vir Bhan vs. CIT (supra), Vir Bhan, at his own instance, was assessed in the status of an HUF for the asst. yrs. 1944-45 and 1945-46. He took a plea in the proceeding for the asst. yr. 1946- 47 that a partition had taken place in the family and the business was being carried on by a firm consisting of the erstwhile coparceners. That plea was rejected. For the asst. yr. 1947-48 a notice under s. 22 (2) was issued to the firm but the assessment was made in the status of a HUF. On appeal, the AAC also treated the assessee as a HUF. The firm preferred an appeal to the Tribunal, Vir Bhan signing the memorandum of appeal in his capacity as a partner of the firm and not as the karta of the HUF. The Tribunal dismissed the appeal as incompetent on the ground that Vir Bhan had styled himself as a member of the firm. Khosla, C.J. and Tek Chand, J. held that whether as representative of the family or as representative of the firm Vir Bhan was competent to prefer the appeal before the Tribunal. As the memorandum of appeal was signed by Vir Bhan who was competent to sign it in either capacity, the Punjab High Court held that the Tribunal was wrong in dismissing the appeal in limine. Thus, in both these cases the assessee's contention as members of a partnership firm has been rejected by the ITO and the assessment was made as an HUF. The appeals have in fact been filed by the partner although they should have been filed by the HUF. But even then the Punjab High Court decided against the Department. The learned advocate for the assessee has referred us to page 14 of the paper-book to show that the business concerned has been named as Chandmull Pannalal, Chandmull being the father of Pannalal, and that Pannalal after the death of his father, Chandmull, and the birth of his sons, who were three in number, formed an HUF. Mr. Pal, on behalf of the Department, has not raised any dispute on this point. But, apart from these facts, in the instant case, the ITO in his assessment order has described the assessee as "Sri Chandmull Pannalal, Prop. Chandmull Pannalal Juniwal". The AAC has made his order against the assessee describing as "M/s Chandmull Pannalal, Prop. Sri Chandmull Pannalal". Pannalal Juniwal from the very beginning contended that the assessment of the business should be made as an HUF, and, accordingly, Pannalal Juniwal instead of describing himself as proprietor signed the memorandum of appeal as Karta of Chandmull Pannalal. Thus, Pannalal whether in individual capacity or as Karta of the HUF is competent to verify the memorandum of appeal in either capacity. What has been assessed is the business, styled as "Chandmull Pannalal" and Pannalal is the person in charge of the business either as individual proprietor or as a member of the HUF.
(3.) FOR the reasons stated above, the answer to the question will be in the affirmative and in favour of the assessee. Each party shall bear and pay the costs of this reference.;