JUDGMENT UPADHYA J. - This reference under section 66(1) of the Income-tax Act, 1922, raises the question as to whether the appeal filed in the Income-tax Appellate Tribunal by the assessee was invalid.
In the array of parties as shown in the memorandum of appeal filed by the assessee, the Appellate Assistant Commissioner of Income-tax, Kanpur, was mentioned as the respondent, and at the hearing of the appeal an objection was taken that this was not in accordance with the requirements of rule 14 of the Income-tax Appellate Tribunal Rules which requires that the Income-tax Officer concerned should be made a respondent, and the appeal was therefore not a proper appeal at all. This objection prevailed and the Income-tax Appellate Tribunal dismissed the appeal. The relevant facts as stated by the Income-tax Appellate Tribunal in the original statement of the case and in the supplementary statement which has been submitted appear to be that in the memorandum of the appeal the Appellate Assistant Commissioner of Income-tax, Kanpur, was shown as the respondent in the title of the appeal where the array of the parties, the appellant and the respondent are usually shown. The appeal was in the prescribed form, was accompanied by the necessary copies and the fee prescribed. In the prescribed form there are several columns and one of these is - Address to which notices may be sent to the respondent. In this column, the assessee wrote - "Income-tax Officer, D-Ward, and the Appellate Assistant Commissioner of Income-tax Kanpur. The Income-tax Appellate Assistant Tribunal issued notice of the appeal to the Income-tax Officer D-Ward, Kanpur, and in the array of parties as mentioned in the notice the Income-tax Officer, D-Ward, Kanpur, was mentioned as the respondent. A copy of this notice has been appended as annexure "B" to the supplementary statement of the case submitted by the Tribunal. This notice was served on the departmental representative and he appeared at the hearing of the appeal for the Income-tax Officer D-Ward, Kanpur. On 12th March, 1951, which was the date fixed for the hearing, the assessee submitted an application for correction of what he alleged to be a clerical mistake in the memorandum of appeal, that the Appellate Assistant Commissioner had been typed instead of the Income-tax Officer in the array of parties. The department representative raised a preliminary objection that the appeal was not maintainable as the Income-tax Officer had not been made a respondent in the case. The Tribunal did not grant permission to the assessee to make the amendment in the memorandum of appeal, and accepting the preliminary objection raised by the departmental representative dismissed the appeal.
The assessee then applied for a reference to this court and the question referred is :
"Whether a memorandum of appeal, in which the Appellate Assistant Commissioner is shown as the respondent, in contravention to rule 14 of the Appellate Tribunal Rules, can be deemed to be invalid memorandum of appeal and the Tribunal is justified to reject the admission of the same ?"
This case was once argued on 10th August, 1960, when we directed the Tribunal to submit a supplementary statement. This statement has come as mentioned above.
After hearing learned counsel for the parties, we are of opinion that the question as framed does not correctly show the real question that arises out of the appellate order of the Tribunal. We, therefore, remodel the question as follows :
"Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in dismissing the appeal on the ground that no proper appeal had been filed within the period of limitation ?"
Learned counsel for the assessee contended that the right to file an appeal was conferred by section 33 of the Act.
This section did not require that the Income-tax Officer concerned should be made a party. The appeal had to be preferred in the form prescribed and the form prescribed as mentioned in the rules framed by the Central Board of Revenue under the powers vested in it by section 59 of the Income-tax Act. This form also does not require that the Income-tax Officer concerned should be made a respondent. In the form it is necessary to give particulars, among other things of the Income-tax Officer who passed the original order and of the Appellate Assistant Commissioner who determined the appeal. Addresses to which notices may be sent to the respondents are also required to be given. It is contended that the right conferred by the statute to prefer an appeal is a right which may be exercised in a manner provided by section 33 read with rule 22 of the Income-tax Rules, and none of these provisions require that the Income-tax Officer should be impleaded as a party. In the form prescribed, however, a party has to be shown as the appellant and another party has to be shown as the respondent at the top of the memorandum of appeal. In case the appeal is by an Income-tax Officer that officer will be an appellant and the assessee would be a respondent. Where, however, the appeal is to be preferred by an assessee the question arises as to who should be the respondent. Learned counsel for the assessee contends that the decision of the appeal really the Union of India and it is the Union of India which in fact is the proper respondent and it is only for the purpose of convenience that the Income-tax Officer, who acts on behalf of the Union of India in matters relating to assessment of income-tax, is considered to be a representative of the Union of India, and it is for this reason that he is required by the rules framed by the Income-tax Appellate Tribunal to be impleaded as a party. Learned counsel contended that rule 14 of the Income-tax Appellate Tribunal Rules is ultra vires so far as it restrict or limits the right of the assessee to prefer an appeal against the Union of India. We do not think it is necessary in this case to deal with this point at length. The Income-tax Appellate Tribunal has powers under section 5A(8) to regulate its own procedure and if the Tribunal makes rules regulating such procedure the rules would be valid so far as they are calculated to regulate the procedure in the Income-tax Act Appellate Tribunal. In our opinion, the institution of an appeal only makes the commencement of the procedure before the appellate authority, and in the what form an appeal may be presented and who may be shown in the array of parties in the appeal is also a matter of procedure specially when the substantive rights of parties are not involved. In the instant case, the propriety or legality of an assessment made by an Income-tax Officer was essentially in question in the appeal.
We are, therefore, of opinion that rule 14 of the Appellate Tribunal Rules cannot be assailed as invalid. When an assessee prefers an appeal he has to make the Income-tax Officer concerned a respondent in the appeal. The question that really arises is as to whether the appeal is invalid because the Income-tax Officer is not shown among the parties in the memorandum of appeal as a respondent. As mentioned in the facts stated above, the assessee when filing the appeal in the form prescribed did say expressly that notice of the appeal to be served on the respondent should be addressed to the Income-tax Officer. This shows unmistakably the intention of the appellant to apprise the Income-tax Officer of the fact that an appeal had been preferred and he did give to that officer the necessary opportunity of contesting the appeal if he so desired. A person impleaded as a respondent in an appeal is a person who is invited to resist the appeal if he so chooses, and by asking a notice of the appeal to be sent to the Income-tax Officer the assessee did give to the Income-tax Officer such opportunity of resisting the appeal as may be given to any respondent. It is not a case where the decision of an appeal was sought in the absence of a party claiming to be aggrieved. It is also evident from the facts stated that the Income-tax Appellate Tribunal in dealing with the appeal did issue notice to the Income-tax Officer concerned treating him as a respondent. This shows that the real intention of the assessee was mistaken by the Appellate Tribunal. It is also a fact that the Income-tax Officer actually responded to the appeal and his representative appeared and raised the preliminary objection which prevailed. We are therefore of opinion that in the memo of appeal as filed, the Income-tax Officer was substantially impleaded and treated as a respondent. We are alive to the fact that in the array of parties which was set out at the top of the memorandum of appeal, the Appellate Assistant Commissioner of Income-tax, and not the Income-tax Officer, was shown as respondent. This as contended on behalf of the assessee was a mistake.
The assessee did make a request to the Appellate Tribunal to permit him to rectify this mistake but the Appellate Tribunal did not consider it proper to grant that request. Learned counsel for the department does not attribute this impleading of the Appellate Assistant Commissioner as a respondent to any other cause. We would, therefore, proceed to consider whether the error in showing the Appellate Assistant Commissioner as the respondent in the array of parties was such an illegality as to render the memo of appeal totally ineffective as an appeal. In this connection learned counsel for the assessee invited our attention to several cases, where mistakes made by appellants have been considered to be more irregularities not vitiating the appeal itself. In Commissioner of Income-tax v. Shri Yodh Raj Bhalla, the Income-tax Officer, Lahore, had been shown as the respondent in the memo of appeal instead of the Income-tax Officer, Salary Circle, Delhi, and the question arose whether this amounted to an illegality, and the appeal was not a proper appeal, because rule 14 of the Tribunal Rules had not been complied with. The Punjab High Court took the view that the naming of the Income-tax Officer as a respondent was not more than a formality and the real nature of the contest was in no way obscured by the error in the name of the respondent. The appeal was therefore treated as valid. In Sheonath Singh v. Commissioner of Income-tax, the Calcutta memorandum of appeal had not been signed by the appellant but only by his authorised representative. It was urged that the appeal was not a valid appeal because the rules required that the appellant must also sign the appeal. Chakravarti C.J. after considering several cases observed as follows :
"It will be clear from the uniform view of the courts, as reflected in the decisions which I have cited, that the rule as to the signature of a plaint or a memorandum of appeal by the plaintiff or the appellant, although expressed in the relevant statute in the language of a mandatory provision has never been regarded as mandatory, but the rule being a procedural rule has been treated as only directory, non-compliance or defective compliance therewith being held to be irregularities, curable by the court at its own instance and not illegalities affecting the jurisdiction of the court."
The learned Chief Justice also referred to rule 13 of the Appellate Tribunal Rules which provides that defective appeals may be returned for correction to the appellant. This case was followed by the Patna High Court in Gouri Kumari Devi v. Commissioner of Income-tax. In that case also the assessee had not signed personally the memo of appeal which was presented to the Appellate Tribunal and the court held that this was merely an irregularity and not an illegality which would vitiate the appeal itself. The appeal in that case was held to be a proper appeal presented before the Income-tax Appellate Tribunal which could not be dismissed on the ground that it was not a valid appeal. These cases indicate that the substance of the matter has to be looked to and some little departure from the rules of procedure should not be permitted to defeat justice. Learned counsel also referred us to a decision of this court in Behari Lal Laxminarain v. Income-tax Officer, Sitapur, but that was a case where the defective appeal had been admitted by the Income-tax Appellate Tribunal and we do not think that the case would afford proper guidance in the case now before us.
English courts have consistently taken the view that mere errors in procedure should not be allowed to defeat justice. In Kendall v. Hamilton, Lord Penzance observed :
"Procedure is but the machinery of the law after all - the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights, and is thus made to govern where it ought to subserve."
This pronouncement was referred to and followed in Cropper v. Smith, Bowen L. J. said :
"... it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace."
We are unable to appreciate the circumstances in which the Appellate Tribunal thought it proper to refuse the appellant an opportunity of rectifying the mistake in the memorandum of appeal. But we are of opinion that the memorandum of appeal even as it stood was not invalid or illegal, and having regard to the other facts of the case relating to the procedure that was followed on the filing of this appeal by the Appellate Tribunal we are of opinion that it was a good appeal and should have been decided on merits. Our answer to the question as reformulated by us in the negative.
The assessee will have his costs which we assess at Rs. 250. We fix the fee of learned counsel for the department at the same amount.
Question answered in the negative.