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PETITIONER: COMMISSIONER OF AGRICULTURALINCOME-TAX, BENGAL

       Vs.

RESPONDENT: SRI KESHAB CHANDRA MANDAL

DATE OF JUDGMENT: 09/05/1950

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K.

CITATION:  1950 AIR  265            1950 SCR  435  CITATOR INFO :  D          1955 SC 249  (5)  R          1956 SC 604  (4,11,12)

ACT:     Bengal  Agricultural Income-tax Act, (IV of  1944).  es. 24,  57-Rules  under the Act, r. 11, Form No.  5--Return  of illiterate  assessee --Declaration signed by pen of  son  of assessee--Validity  of return-Signature by  Agent--Permissi- bility--"Qui facit per alium facit "applicability of.

HEADNOTE:     The  Rules framed under the Bengal Agricultural  Income- tax Act, 1944, provided that the declaration in a return  of income  had to be signed "in the case of an  individual,  by the individual himself." A return of an illiterate assessee, Keshab  Chandra  Mandal, was. signed in  the  vernacular  as follows:  "Sri Keshab Chandra Mandal Ba: Sri  Jugal  Chandra Mandal,"  the  latter being the son of  the  assessee.   The Appellate  Tribunal referred to the High Court the  question "whether  in the circumstances of the 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 High Court answered the question in the affirmative.   On appeal:     Held, per FAZL ALl, PATANJALI SASTRI,  MUKHERJE and  DAS JJ.  (MAHAJAN J.  dissenting)--that the Bengal  Agricultural Income-tax  Act, 1944, and the Rules framed thereunder  con- tained  provisions  indicating an intention to  exclude  the common  law  rule qui tacit per alium tacit 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  appearing  on  the return,  the  return was not properly signed and was  not  a valid return.     MAHAJAN  J--As  the question referred  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 whatsoever on the  record

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to establish that the assessee did not touch the pen or  the hand  of  the son when the signature was affixed,  the  High Court  was right in answering the question in  the  affirma- tive. Judgment of the Calcutta High Conrt reversed. 55 436

JUDGMENT: APPEAL from the High Court of Judicature at Fort William: (Civil Appeal No. LXXXVIII of 1949.) This was   an appeal from the judgment and order of the High Court of Judicature at Calcutta dated 16th  September, 1948, (G.  N. Das and R.P. Mookerjee JJ.) in a Reference  made  to the  High Court under section 63 (1) of the Bengal  Agricul- tural  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 :--     DAs  J.--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 income 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 assessee filed a petition before the Agricultural 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    437 also  for  a form of return.   This petition was  signed  in vernacular as follows :-- "Sri Keshab Chandra Mandal x Ba:  Sri Jugal Chandra Mandal" Below that was the  signature of his pleader H. Nandi.  With this petition was attached  a Vakalatnama signed in vernacular in the manner following: "Sri Keshab Chandra Mandal x Ba:  Sri Jugal Chandra Mandal of Balya." It will be  noticed that in both the signatures, against the name of Sri  Keshab Chandra  ’Mandal  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."     His  son Sri Jugal Chandra Mandal attested the  I  cross mark in the vakalatnama.

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   On  receipt of this petition the Agricultural  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,  as- sessment would be made under section 25 (5) of the Act.     On  the 7th May, 1945, the assessee did not appear  per- sonally.  His son Jugal Chandra Mandal 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. 438     The  Agricultural Income-tax Officer stated in  his  as- sessment order as follows :--     "A  fresh return is submitted to-day. A remarkable  dif- ference is noticeable between the two returns. First  return 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 himself but the second one has  been signed by Jugal his son for the assessee.  Under the circum- stances, 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  immedi- ately 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 assess- ment 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 applied  under section  63 (1) of the Act for a reference of certain  ques- tions  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  decla- ration in the form of return signed by the illiterate asses- see  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. I)as J. and  R.P. Mookerjee J.) who,  for reasons stated in their judgment 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  assessee and  the

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signature  appearing  on  the return as filed  on   the  7th May,   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  In- come-tax Officer in proceeding to assessment without  giving the  assessee a further opportunity to put his mark  on  the return.     The  High  Court quoted the  following  observations  of Blackburn J. in The Queen v. The Justices o/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;never- theless,  there may be cases in which a statute may  require personal signature."     Then,  after  stating that the Courts ought not  to  re- strict the common law rule qui facit per alium facit per se, unless  the statute makes a personal  signature   indispens- able,  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) (1846) L.R. 8 Q.B. 305 at p. 307. 56 440 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  per- sonally.  The High Court took the view that to avoid such  a patent  anomaly which would inevitably result if the  inter- pretation  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  argu- ment  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  him- self,  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

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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 have defined the 441 word  "sign"  so as to include the signature  by  an  agent. Section 25 (2) of the Act requires that if the  Agricultural Income-tax  Officer is not satisfied without  requiring  the presence of the person who made the return or the production of  evidence that a return made under section 24 is  correct and complete, he shall serve on such person a notice requir- ing him, on a date to be therein specified, either to attend at  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 Tribu- nal  for the purposes of Chapter V, and to the  Commissioner for  the  purposes  of section 37, the same  powers  as  are vested  m 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  examin- ing  him on oath or affirmation, compelling  production   of documents   and issuing 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  veri- fication of pleadings applicable 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  there  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 Appellate Tribunal or 442 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 assesses, 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 definition 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  omis- sion of any provision in the Act applying the provisions  of the  Code  of Civil Procedure relating to  the  signing  and verification of pleadings to the signing and verification of the  return while expressly adopting the provisions of  that Code relating to the attendance and examination of  witness- es,  production of documents and issuing of  commission  for examination and for service of notices under sections 41 and

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60  respectively, cannot be regarded as wholly without  sig- nificance. 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.     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  alterna- tives  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 Commission- er. 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  man- ner.  Rule 13 prescribes the forms of appeals under  section 34 and rule 14 prescribes the forms of appeals under section 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 Indian 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 representative,  if  any,  and allows  such application  to be presented by  the  applicant either in person or through 444 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

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memorandum signed by the appellant and his authorised repre- sentative,  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  representa- tive,  if any. Form 23 which is notice of hearing of  appeal under section 36 requires the attendance of the appellant or respondent  either inperson or by an authorised  representa- tive.   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  appli- cant  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 signed 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  assessees. Again rules 17 (2), 25 and 47  permit presentation  of applications and appeals by the  authorised representative  of  the assessee whereas there is  no  such’ 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: 445      "In the case of a person not resident in British India, the above declaration shall be sworn (a) before a Justice of the Peace, a Notary Public, a Commissioner of Oaths, if  the applicant  resides  in any part of His  Majesty’s  Dominions outside  British  India, (b) before a  Magistrate  or  other official of the State or a Political Officer, if he  resides in a State in India, and (c) before a British Consul, if  he resides elsewhere."     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 swear- ing  the declaration in their presence. This  clearly  indi- cates that personal signature of the assessee, the appellant or  applicant is necessary in all cases wherever his  signa- ture  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  per- sonal  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  documents, presentation  of  appeal  or application  and attendance  in proceedings before the authorities.  The expression  "autho- rised 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  consti- tuting  his authority and his acceptance of it.  If it  were

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intended  that they, signature by an agent on a return or  a memorandum  of appeal or other application will  suffice  as the signature of the assessee or the appellant or the appli- cant  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 presentation of an appeal is expressly required by the 446 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  considera- tion  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  Legis- lature to insist on the personal signature of the  assessee, appellant or applicant whenever his signature is required by the  Act or the rules and the common law rule qui facit  per alium  facit 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 an individual assessee will result in  the  anomaly  that persons authorised to  sign  for  the assessees  of other categories will be free to get  the  re- turns 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 refund of tax under section 48 (2) can be sent to a claimant abroad for his signature before certain public 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  authentica- tion  thereof It is said that such a construction will  pre- vent  a  leper who, by reason of the loss  of  his  fingers, cannot  even put his mark.  Such cases will indeed  be  rare and  in any event it will be for the Legislature to  rectify this:defect. Not to insist on personal signature on  returns or  appeals or applications will let 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 autho- rised agent are significant and indicate that the  intention

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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  signa- ture  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  Monks v. Jackson( 1 ), which was a case under section 1 (3) of the Municipal  Elections Act     and 39 Vic., c. 40)  which  re- quired  delivery of the nomination paper" by  the  candidate himself  or his proposer or seconder to the Town  Clerk"  it was  held  that this requirement was not  satisfied  by  the delivery      it  by  an  agent.  In  The  Queen  v.  Mansel Jones(2), it was held that a person charged with any corrupt or illegal practice at  a  municipal election who was  enti- tled, under section 38 of the Corrupt  and Illegal Practices Prevention Act, 1883, to be      "heard by himself" was  not entitled to be heard by   his counsel or solicitor.   In re- Prince  Blucher(9), 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 57 448 signed by the solicitors of a debtor, who was, by reason  of his serious illness, unable to sign it, did not comply  with the requirements of section 16 (1) of the Bank ruptcy’  Act, 1914,  which required "a proposal in writing signed by him." The  Court of Appeal applied the principles of the  decision in Hyde v. Johnson(1) and in In re Whitley Partners Ltd.(2). In Luchman Bukshi Roy v. Runjeet Ram Panday(3), a Full Bench of the Calcutta High Court held that an acknowledgment by  a Mooklear  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  Mills, Ltd.(4) that a demand letter 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 Manjeebhai Khataw &  Co.  v.  Jamal Brothers  & Co. Ltd.(5) and M.A. Kureshi v. Argus  Footwear, Ltd. (6).  See also Wilson v. Wallani ( 7 ).  In  C.T.A.C.T. Nachiappa  Chettyar v. Secretary of State for  India(8),  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  part- ners.   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) (1836) 2 Bing. (N.C) 776          (2) (1886) L.R.  32 Ch. D. 337    (3)  (1873) 20 W.R-375                 (4) (1926)  I.L.R. 54 Cal.    (5) I.L.R. 5 Rang. 483                (6) I.L.R. 9  Rang.

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323    (7)  (1880) L.R. 5 Ex. D. 155          (8) (1933)  I.L.R. 11 Rang. 380 (9) I.L.R. (1947) Mad. 167    449 word "himself" or "by him" or "under his hand" or "personal- ly."  It is needless to say that such an intention may  also be  gathered  from the nature of the particular  statute  or inferred  from the different provisions of the  statute  and the  rules framed thereunder. As already stated,  there  are many indications in the Bengal Agricultural Income-tax  Act, 1944, and the rules made thereunder evidencing an  intention to  exclude the common law rule in the matter of the  signa- ture 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  propo- sition  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(’2) referred to in  the  High Court judgment before us does not appear to militate 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 only 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 of Banerjee J.  also makes  it clear that he found nothing in the 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 signature  by  an agent is permissible, the writing  of  the name of (1)  A.I.R. (1935) Oudh. 305           (2) (1902) I.L.R.  24 All. 319. 450 the  principal by the agent is regarded as the signature  of the principal himself.  But this result only follows when it is permissible for the agent to sign the name of the princi- pal.   If  on a construction of a statute  Signature  by  an agent is not found permissible then the writing of the  name of  the principal by the agent however clearly he  may  have been authorised by the principal cannot possibly be regarded as  the signature of the principal for the purposes of  that statute.   If  a statute requires personat  signature  of  a person,  which  includes a mark, the signature or  the  mark must  be that     the man himself.  There must  be  physical contact  between that person and the signature or  the  mark put on the document.     The  result, therefore, is that this appeal  must  beac- cepted  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. FAZL ALI J.--I agree.

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PATANJAL SASTRI J.--I agree. MUKHERJEA J.--I agree. 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 High 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  ap- pointed  by the father and was not otherwise  authorised  by him to sign for him.      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.   Refer- ence in this connection may be made to page 972, para, 1659, of  Gour  on The Law     Transfer.  The  signature  made  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  respond- ent 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 58 452 personally.  If the Income-tax Officer felt that the  asses- see  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 signa- ture.  In  the matter of Commissioner of Income-tax, C.P.  & U.P.(1), it was observed that it is the duty of the  Income- tax Officer before he accepts a return signed by an agent to

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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  hap- pened.  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 eliminated  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  Incometax 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 called upon the illiterate assessee  to  put his  mark  in his presence on the return and he  should  not have  acted hastily in assessing him under the penal  provi- sions 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  pena- lised.  In  the result I would dismiss this  appeal.  Appeal allowed. Agent for appellant: P.K. Bose. (1) A.I.R. 1935 Oudh. 305.      453