1. assessee was served with notice of demand by ITO on completion of assessment on 3-12-1982. assessee was aggrieved by order of ITO. It filed appeal before 1-1-1983. On 4-1-1983, it filed another memorandum of appeal before AAC with covering letter dated 3-1- 1983 wherein it has been explained that as only surviving partner in firm had to suddenly go out of station on 31-12-1982, pervious memorandum of appeal could not be signed by him. In circumstances, memorandum of appeal was signed by its constituted attorney Kabra Associates, chartered accountants. It was further stated in letter that in compliance of rule 45(2) of Income-tax Rules, 1962 ('the Rules'), fresh memorandum of appeal and connected papers duly signed by partner of assessee-firm was being filed with request that it may be taken on record in addition/substitution to appeal papers already filed on 1-1-1983. 2. After hearing assessee's representative, AAC observed that there was no justification for late submission of appeal as first memorandum of appeal was not properly signed and was not in order and second memorandum of appeal was out of time for which there was no justification. He, therefore, dismissed both memoranda of appeal. 3. assessee is in appeal before Tribunal on ground that in memorandum of appeal dated 3-1-1983 assessee had removed defect in first memorandum of appeal. removal of this defect related back to original date of filing of appeal, i.e., 1-1-1983 and, therefore, appeal should have been admitted as in time. In support of his contention, learned counsel for assessee relied on Calcutta High Court decision in case of Sheonath Singh v. CIT [1958] 33 ITR 591 and Patna High Court decision in case of Gouri Kumari Devi v. CIT [1959] 37 ITR 220, wherein both these High Courts have held that rectification of defective memorandum of appeal related back to date of filing of original memorandum of appeal. learned counsel proceeded to admit that original memorandum signed by constitute attorney was defective as laid down in rule 45, but by removal of defect by subsequent memorandum of appeal, defect was removed and appeal was in order and relation back of removal of defect in appeal was in time and in order and should have been admitted. Further, learned counsel proceeded to argue that AAC had not proceeded to deal with assessee's explanation for delay in submission of second memorandum of appeal and had summarily rejected it as unjustifiedly belated. 4. On behalf of revenue, learned departmental representative has referred to decision in case of Special Manager, Court of Wards, Naraindas Narsinghdas v. CIT [1950] 18 ITR 204 (All.) and another decision of Supreme Court in case of CAIT v. Sri Keshab Chandra Mandal [1950] 18 ITR 569, wherein learned Judges of Supreme Court had held, that memorandum of appeal signed by wrong person was invalid. Further learned departmental representative proceeded to state that judicial dicta relied upon by learned counsel for assessee were with reference to appeals before Tribunal. 5. On rejoinder, learned counsel for assessee invited my attention to provisions of rules 45 and 47 of Rules which deal with procedure for filing appeals before AAC and before Tribunal. By provisions in rule 47, procedure for filing of appeal before AAC has been adopted f o r filing appeal before Tribunal. Therefore, there was no material difference in two procedures. Further reference was made to Orissa High Court decision in case of Addl. CIT v. K. Padmalochan Sahu [1974] 95 ITR 113, wherein defect in original memorandum of appeal before AAC was removed by subsequent, though belated, memorandum of appeal. Orissa High Court had held that such subsequent submission of proper memorandum of appeal was in order. 6. I have carefully considered facts and circumstances of case and submissions of either side. original memorandum of appeal filed on 1-1- 1983 was within time. It was, however, invalid as having been signed by wrong person, namely, person other than one provided in rule 45. As explained by learned Judges of Calcutta High Court in case of Sheonath Singh (supra) it was obligatory for AAC to have called upon assessee to remove defect. But without waiting for such requisition by AAC assessee, conscious of invalidity of first memorandum of appeal, filed subsequent memorandum within two days after removing defect. subsequent filing of proper memorandum of appeal should relate back to filing of original memorandum as explained by learned Judges of Calcutta High Court in case of Sheonath Singh (supra) and as held by learned Judges of Orissa High Court in case of K. Padmalochan Sahu (supra). Therefore, in my opinion, AAC was in error in rejecting appeal in limine. 7. Even on merits order of AAC suffers from infirmity inasmuch as within two days of filing of original appeal assessee has proceeded to file subsequent memorandum of appeal complete in all respects with explanation for delay in submission of same. AAC has summarily rejected same without assigning any reasons why he found assessee's explanation to be inadequate. assessee appears to have acted with due diligence in filing proper memorandum of appeal before AAC and AAC should have condoned delay, if any, in filing second memorandum of appeal. In either case, order of AAC is erroneous and requires to be reversed. appeal is restored to file of AAC for disposal on merits. 8. In result, appeal is allowed. *** MECHNO-PLAST v. SIXTH INCOME TAX OFFICER