Tansukhrai Bodulal vs Income Tax Officer and Others

Mehrotra, J.—The petitioner - Messrs. Tansukhrai Bodulal - is Hindu undivided family firm carrying on business at Kampur in the district of Nowgong. Shri Gordhan Das Khakolia is the Karta of the Hindu joint family. On the 25th March 1947 the assessment of the petitioner for the assessment year 1946-47 was completed by the Income Tax Officer of Gauhati u/s 23(3) of the Indian Income Tax Act, 1922, (hereinafter called ''the Act'') on a total income of Rs. 30,955/-. On the 24th March 1951 the petitioner received a notice dated 19th March 1951 purporting to be one u/s 34 of the Act issued by the Income Tax Officer, Nowgong arrayed as respondent No. 1 to the present petition.

The petitioner by the said notice was asked to submit his return for the period ending the 31st March 1947 within 31st March 1951. Several reminders were sent by the respondent No. 1 to the petitioner to submit his return for the aforesaid period and ultimately the petitioner submitted a Jotter dated 24th April 1951 along with which he filed a fresh return under protest. In this fresh return he showed his income as given in the original return. I shall have to refer to this letter later when I deal with the points raised by the petitioner. 7th February 1952 was fixed as the date for hearing of the matter by respondent No. 1.

On this date the case was adjourned on the request of the petitioner as the Karta of the family was away and 4th March 1952 was fixed for the hearing of the case. On that date an application was again made for adjournment on the ground that the Karta of the family was away in connection with marriage of his daughter and it was not possible for the firm to produce documents and explain matters in the absence of the Karta.

Further, a telegram from the advocate of the petitioner had been received from Calcutta and filed " before the Income Tax Officer in which it was stated that the counsel could not leave Calcutta and was unable to reach there before the 6th March 1952,'' The prayer for adjournment was rejected and the assessment" Was completed u/s 23(4) on that'' very date on an amount of Rs. 1,1.2,955/-. The petitioner had also contended that there was no-escape of assessment and that the original assessment had been made on consideration of all the facts which were in possession of the department.

There was no information in the possession of the Income Tax Officer justifying reassessment u/s 34 of the Act. Thereafter an application u/s 27 of the Act was filed for cancellation of the assessment made on the 4th March 1952. An appeal was also preferred against the assessment order of the 4th March 1952 to the Appellate Assistant Commissioner on 5th September 1952 who is impleaded as respondent No. 2 in this petition. By his order dated 11th October 1952 the Income Tax Officer rejected the petitioner''s application u/s 27 of the Act.

An appeal, against this order was also preferred to the Appellate Assistant Commissioner. On the 26th July 1956 during the pendency of these appeals an application was filed by the petitioner before the Appellate Assistant Commissioner to the effect that the proceedings u/s 34 for reassessment were ab initio null and void inasmuch as the notice issued was defective and the petitioner therefore prayed that he should be allowed to drop the appeal.

The appeal against the order rejecting the petitioner''s application u/s 27 of the. Act came up for hearing before the Appellate Assistant Commissioner on 31st March 1956 and by the order dated 31st July 1956 the Appellate Assistant Commissioner held that the Income Tax Officer was not justified in rejecting the prayer for adjournment. He allowed the appeal and sent back the case to the Income Tax Officer to make fresh assessment in accordance with law. The prayer of the petitioner for withdrawing the appeal was rejected.

On the same date, that is on 31st July 1956, the other appeal filed against the ex parte assessment also'' came up for hearing and was struck off as there was no assessment pending in view of the order of the Appellate Assistant Commissioner setting aside the ex parte assessment. Two appeals were preferred by the petitioner, - one against the order rejecting the appeal against the ex parte order of assessment and the other against the order allowing the appeal against the order rejecting the application u/s 27, - to the Income Tax Appellate-Tribunal Calcutta Bench. By an order dated 12th December 1957 the two appeals were dismissed.

On the 9th November 1959 two notices dated 5th November 1959 - one u/s 22(4) and the other u/s 23(2) of the Act - issued by respondent No. 1 in respect of the assessment year 1946-47 were received by the petitioner. These two notices were issued as the Income Tax Officer proceeded to reassess the petitioner under the orders of the Appellate authorities directing him to reassess the petitioner. In effect the Income Tax Office? restarted the proceedings initiated u/s 34 by the notice dated 19th March 1951.

On the 11th November 1959 the petitioner filed an application before the Income Tax Officer, Nowgong challenging the validity of the notice issued u/s 34 dated the 19th March 1951. According to the petitioner as the notice of the 19th March 1951 was invalid and illegal, the notices issued on. 5th November 1959 were also illegal. The validity of the assessment proceedings before the Income Tax Officer was thus challenged.

The Income Tax Officer by his order dated 30th November 1959 informed the petitioner that the notice u/s 34 of the Act was valid and legal and further opportunity was given to the petitioner to produce books of accounts and evidence in support of the return filed on 14th December 1959. Thereupon the present petition under Article 226 of the Constitution was filed in this Court on the 10th December 1959 and the rule was issued on the aforesaid application.

The petitioner has prayed for a writ of prohibition directing the respondent No. 1 not to proceed with the assessment as the proceedings are without jurisdiction. In the petition a relief in the nature of mandamus is also claimed directing the respondent No. 1 to cancel, recall or otherwise forbear from giving effect to the notice dated 19th March 1951 issued u/s 34, the notices dated 5th November 1959 issued u/s 22(4) and Section 23(2) and the order dated 30th November 1959. A writ of certiorari was also claimed for quashing the notices mentioned above. In the present petition besides the Income Tax Officer, Nowgong, - Appellate Assistant Commissioner of Income Tax Assam, Tripura and Manipur Shillong, Commissioner of Income Tax and the Union of India have also been impleaded as respondents Nos. 2, 3 and 4 respectively.

Mr. Choudhuri has raised two preliminary points which may be disposed of before dealing with the merits of the petition. He has urged that the petition cannot proceed in the absence of the Income Tax Appellate Tribunal which passed the final orders on the 12th December 1957, in effect the contention is that as the original order of assessment merged into the final order passed by the Income Tax Appellate Tribunal, unless the order of the Income Tax Appellate Tribunal was set aside, no relief could be granted to the petitioner.

It is also urged that the Income Tax Officer is proceeding in pursuance of the order of the Appellate Assistant Commissioner remanding the case and affirmed by the Income Tax Appellate Tribunal and unless that order is set aside, this Court will not issue mandamus to the Income Tax Officer not to do something which he has been directed by the Income Tax; Appellate Tribunal to do. Secondly it was urged that no writ could be issued against the Union of India by this court. We do not think that there is any force in the preliminary points raised by the respondents'' counsel.

The petitioner''s contention is that the proceedings before the Income Tax Officer are without Jurisdiction as the notice issued u/s 34 which is a condition precedent for the starting of the assessment proceedings was invalid, and therefore a writ) of prohibition should be issued. For this relief it is not necessary for the petitioner to ask for the cancellation or quashing of the order passed by the Income Tax Appellate Tribunal and the only necessary party to-whom the writ could go is the Income Tax Officer.

It can also not be said that the Income Tax Officer is bound to carry out the order of the Appellate Assistant Commissioner and the Income Tax Appellate Tribunal, and unless that order is set aside, this Court will not issue mandamus. The officer can only be compelled to carry out a legal order and if this Court is of opinion that the proceedings are without jurisdiction, any order by the Income Tax Appellate Tribunal directing the Income Tax Officer to proceed with the assessment can be no bar to this Court issuing a writ of prohibition. As to the second point the short answer is that the petitioner is asking for a writ of prohibition against the Income Tax Officer and no relief is claimed against the Union of; India.

The petitioner contends that the notice issued u/s 34 of the Act on the 19th March 1951 was an invalid notice as it did not give thirty days'' time to the petitioner to submit his return as required u/s 22(2) of the Act. The foundation for reassessment u/s 34 is a valid notice u/s 22(2) and the proceedings are invalid as no valid notice was given in this case. The present proceedings arise out of the notice issued on the 19th March 1951 and thus arc without jurisdiction.

Section 34 of the Act provides as follows:

34.(1) If - (a) the Income Tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income u/s 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to Income Tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or

(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the Assessee, the Income Tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to Income Tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been computed,

he may in cases falling under clause (a) at any time and in cases falling under clause (b) at any time within four years of the end of that year serve on the assessee, or, if the assessee is a company, on the principal officer thereof, a notice containing all or any of the requirements which my be included in a notice under Sub-section (2) of Section 22 and may proceed to assess or re-assess such income, profits or gain or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section:

Provided that the Income Tax Officer shall not issue a notice under clause (a) of sub-section (1):

(i) for any year prior to the year ending on the 31st day of March, 1941;

(ii) For any year, if eight years have elapsed after the expiry of that year, unless the income profits or gains chargeable to Income Tax which have escaped assessment or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which has been computed in excess, amount to or are likely to amount to, one lakh of rupees or more in the aggregate, either for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending before the 31st day of March, 1941;

(iii) for any year, unless he has recorded his reasons for doing so, and in any case falling under clause (ii), unless the Central Board of Revenue, and in any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice:

Provided further that the Income Tax Officer shall not issue a notice under this sub-section for any year, after the expiry of two years from that year, if the person on whom the assessment or re-assessment is to be made in pursuance of the notice is a person deemed to be the agent of a non-resident person u/s 43:

Provided further that the tax shall be chargeable at the rate at which it would have been charged had the income, profits or gains not escaped assessment or full assessment, as the case may be.

Explanation.-- Production before the Income Tax Officer of account books or other evidence from which material facts could with due diligence have been discovered by the Income-lax Officer will not necessarily amount to disclosure within the meaning of this section.

The remaining portion of the section is not relevant for the purpose of the present case. Section 22(2) reads as follows:

In the case of any person whose total income is in the Income Tax Officer''s opinion, of such an amount as to render such person liable to Income Tax, the Income Tax Officer may serve a notice upon him requiring him to furnish within such period not being less than thirty days, as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice) his total income and total world income during the previous year:

Provided that the Income Tax Officer may in his discretion extend the date for the delivery of the return.

The notice issued on the 19th March. 1951 is Annexure ''B'' to the petition and the relevant contents of the notice were as follows:

Whereas I have reason to believe that your income assessable to Income Tax for the year ending 31st March, 1947 has ... (b) been under-assessed ... I therefore propose to re-assess that.

I hereby require you to deliver to me not later than 31-3-51 a return in the prescribed form of your total income and total world income assessable for the said year ending 31st March, 1947, (Income of 2002 R. N.).

The return was filed on the 24th April. 1951 by the petitioner under protest. Section 34 deals with two classes of escaped assessment. Clause (a) of Section 34 deals with the escaped assessment due to the omission or failure on the part of an assessee to make a return of his income and clause (b) deals with escaped assessment which in consequence of information in the possession of the Income Tax Officer is discovered.

In the present case the notice was issued under clause (b). After the Income Tax Officer is satisfied that the income has escaped assessment due to any of the two causes, he has to serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22. The jurisdiction upon the Income Tax Officer to proceed to assess or re-assess the income is conferred only after the notice has been served. The requirements of Section 22(2) have thus been incorporated in Section 34 by reference to Section 22(2).

The language of Section 34 no doubt provides that the notice issued under the said section need not contain all the requirements mentioned in See. 22(2). The question which thus arises is what are the requirements mentioned in Section 22(2). Section 22(2) requires a notice to be served on the person requiring him to furnish within such period not less than thirty days, a return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice) his total income and his total world income during the previous year.

Mr. Ghose for the petitioner contends that it is open to the Income Tax Officer to mention all or any of the requirements of See. 22(2), but in the notice a period of not less than thirty days is to be given for complying with the requirements mentioned in the notice. There is no discretion in the Income Tax Officer issuing the notice to fix any period not less than thirty clays for compliance with the requirements of Section 22(2). If the notice gives a period less than thirty days, the requirement of Section 22(2) has not been complied with and the notice thus was an invalid notice.

Mr. Choudhuri for the respondents on the other hand contends that the condition precedent for the assumption of jurisdiction u/s 34 is the satisfaction of the Income Tax Officer that the income has escaped assessment. The requirement of notice is only procedural and if it has been substantially complied with as in the present case where although the notice did not give him time of thirty days still in fact he filed his return after the expiry of thirty days, the proceeding of reassessment cannot be said to be without jurisdiction.

The authorities cited by the parties may be examined. The petitioner''s counsel referred to the case of Commissioner of Income Tax, Bombay City Vs. Ramsukh Motilal, The matter came up before the Bombay High Court on a reference u/s 66 of the Act. The assessment was completed for the assessment year 1944-45 in 1948. The Income Tax Officer thereafter being satisfied that some income had escaped assessment, issued a notice u/s 34 on 19-3-1949. By the notice the assessee was required to make a return by 25-3-1949.

The return was filed by the assessee and he was assessed by the Income Tax Officer. The appeal was filed to the Assistant Commissioner before whom the point was raised that the notice issued u/s 34 was invalid as it did not give thirty days'' time to the assessee to file his return. The contention of the assessee was upheld by the Appellate Tribunal against which a reference was made by the department. It was held by Chagla C. J. that the Income Tax Officer could proceed to assess or reassess escaped income after a notice provided in sub-section (2) of Section 22 is given and unless such a notice is given, the Income Tax Officer could not proceed with the assessment.

If an-invalid notice is given it is no notice in the eye of law and the proceedings before the Income Tax Officer on such notice will be without jurisdiction. It was also held in this case that there could be no waiver of an invalid notice. I shall have to refer to this case when I deal with the question of waiver. This case however clearly lays down that the issue of a valid notice is a condition precedent for the exercise of the jurisdiction by the Income Tax Officer to assess in respect of an escaped income.

The next case is R.K. Das and Co. Vs. Commissioner of Income Tax, West Bengal, In this case Chakravatti C. J. also held agreeing with the Bombay view that the issue of a valid notice was a condition precedent for the exercise of jurisdiction by the Income Tax Officer u/s 34. The following observations at page 163 of the report may be quoted:

Where the time for making an assessment in the normal way has expired or certain omissions have occurred by reason of which no assessment has taken place or an under-assessment has occurred and the statute requires that in such circumstances the Income Tax Officer can assume jurisdiction and commence fresh proceedings only upon and alter giving a certain notice of a certain kind, he cannot, in my view, make a valid assessment at all, unless he issues the prescribed notice and issues it in a valid form.

If he has issued any invalid notice and that notice has brought in a return, he cannot then shake off his own irregularity and seize the return and proceed to make an assessment on it in contravention of law and to the disadvantage of the assessee.

The above two cases have been held to lay down good law by their Lordships of the Supreme Court in the case of Narayana Chetty v. Income Tax Officer, Nellore, reported in AIR 1959 SC 213. In this case the matter came up before their Lordships of the Supreme Court in appeal from an order of the Madras High Court rejecting petitions filed by the assessees under Article 226 of the Constitution. Briefly the facts giving rise to this appeal were that the assessee was reassessed u/s 34 of the Act. The notice u/s 34 in this case was served on the firm and the point raised in appeal before the Supreme Court was that the notice should have been issued to the partners. The notice thus issued u/s 34 was an invalid notice and the assessment as a consequence of the aforesaid notice was invalid in law. The following observation at page 215 is apposite:

The first point raised by Mr. Sastri is that the proceedings taken by respondent No. 1 u/s 34 of the Act are invalid because the notice required to be issued under the said section has not been issued against the assessees contemplated therein....The argument is that the service of the requisite notice on the assessee is a condition precedent to the validity of any re-assessment made u/s 34; and if a valid notice is not issued as required, proceedings taken by the Income Tax Officer in pursuance of an invalid notice and consequent orders of re-assessment passed by him would be void and inoperative. In our opinion, this contention is well-founded. The notice prescribed by Section 34 cannot be regarded as a mere procedural requirement; it is only if the said notice is served on the assessee as required that the Income Tax Officer would be justified in taking proceedings against him. If no notice is issued or if the notice issued is shown to be invalid then the validity of the proceedings taken by the Income Tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. That is the view taken by the Bombay and Calcutta High Courts ... and we think that that view is right.

Their Lordships then proceeded to consider whether the notice in that case could be said to have been invalid and the contention of the appellant on this behalf was not accepted. This case however, clearly approves the view taken by the Bombay High Court and the Calcutta High Court in the cases to which, I have already referred and lays down that the issue of a valid notice is a condition precedent for the exercise of the jurisdiction by the Income Tax Officer u/s 34. In view of this decision it cannot be argued that the requirement of a valid notice is only a procedural requirement and that it is not a foundation for the exercise of jurisdiction for reassessment.

Mr. Choudhuri drew our attention to the case of Maharaj Kumar Kamal Singh Vs. The Commissioner of Income Tax, Bihar and Orissa, He refers to the following passage at page 260 of the report:

It is clear that two conditions must be satisfied before the Income Tax Officer can act u/s 34 (1) (b). He must have information in his possession, which, in the context, means that the relevant information must have come into his possession subsequent to the making of the assessment order in question and this information must lead to his belief that income chargeable to Income Tax has escaped assessment for any year, or that it has been under-assessed or assessed at too low a rate....

From these observations it is argued that the only conditions precedent for the exercise of power u/s 34 are the two conditions mentioned above and the issue of a valid notice thus cannot be regarded as a condition precedent for the exercise of jurisdiction u/s 34. This case to my mind, does not in any way support the contention of the department. The only question for determination in this; case was whether a certain decision of the Privy Council given later could be regarded as an information in possession of the Income Tax Officer so as to give him jurisdiction to issue a notice u/s 34.

As has been pointed out in the cases cited by the counsel for the petitioner, if there is information in possession of the Income Tax Officer and he is satisfied that the income has escaped assessment, he gets jurisdiction to act u/s 84 and to issue a notice as provided for u/s 22(2). But the power of the Income Tax Officer to reassess is founded upon the issue of a valid notice u/s 22(2) and any assessment made by the Income Tax Officer on an invalid notice will be void.

It was also urged that the absence of notice may render the proceedings of assessment invalid, but in cases where the notice has in fact been issued and the notice complied substantially with the requirements of Section 22(2), it cannot be said to be an invalid notice. The argument advanced by Mr. Joshi in the Bombay case referred to above (S) AIR 1955 Bom 227 was that --

it was not a case where notice has not been given. A notice has been given but the notice may not be exactly in accordance with law". This contention was repelled and it was observed by Chagla C. J. that --

if a notice is not given as provided by Section 34, then in the eye of the law it is no notice at all, and clearly the Income Tax Officer proceeded to assess the assessee u/s 34 without complying with the condition precedent laid down in Section 34 which alone could have given him jurisdiction to assess the assessee.

I am in complete agreement with the above observations. The period given in the notice being shorter than thirty days the notice did not comply with the requirement of Section 22(2) and it was invalid. The proceedings before the Income Tax Officer were thus invalid.

The next contention raised by Mr. Choudhuri is that even though the notice was defective, it was waived by the assessee. In this connection two questions'' arise for determination, - firstly whether there could be a waiver in respect of a notice which is a condition precedent for the exercise of jurisdiction to assess u/s 34 and secondly if the facts pointed out by the department establish the case of a waiver.

As pointed out in the case of Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another,

The generally accepted connotation is that to constitute ''waiver'', there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual, and is an agreement to release or not to assert a right, estoppel is a rule of evidence.

In this connection the case of AIR 1935 79 (Privy Council) may be referred to. Though the Supreme Court in the case referred to above dealt with the question of relinquishment of the fundamental right guaranteed under Article 14 of the Constitution, the observations referred; to above by S. K. Das J. are apposite. Another passage winch may be usefully referred to is the following passage (sic) page 180 which summarises the American Law relating to the waiver of fundamental right:

It has been stated supra (p. 1050, note 32) that the doctrine of waiver extends to rights and privileges of any character, and since the word ''waiver'' covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred by statute or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of Ors. , and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy, and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private-capacity, if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large ....

As a general rule, rights relating to procedure and remedy are subject to waiver, but if a right is so fundamental in its nature, as to be regarded by; the state as vitally integrated in immemorially established processes of the administration of justice, it cannot be waived by anyone.

It is difficult to hold that there was any right in the assessee which he could have intentionally relinquished or he can be said to have abandoned. The existence of a valid notice is a condition precedent for the exercise of the jurisdiction by the Income Tax Officer to assess or reassess. It does not confer any right on the assessee which he could abandon. The want of notice affects the jurisdiction of the Income tax Officer to proceed with assessment and thus affects the proceedings for assessment and does not in any manner affect the right of the assessee, which he could validly abandon, There is Anr. aspect of the matter which may be considered. The right of the assessee to be assessed or not to be assessed arises only after the valid proceedings have been taken and the want (sic) of a valid notice is a condition precedent. It has to come into effect prior to the starting of the proceedings. There could therefore, be no question of the assessee waiving any right accruing to him.

Before dealing with the authorities cited (sic) the bar, it will be convenient to dispose of the second question which arises in this connection, namely, whether it can be said that on the facts disclosed there was a sufficient foundation laid for applying the doctrine of waiver in the present case. It is stated by the counsel for the Department that when the letter dated 24th April 1951 was written by the assessee along with the return filed, no point was taken with regard to the invalidity of the proceedings on the ground of want of proper notice.

This letter is Annexure ''C'' to the petition and it is stated in it that the requisition to submit the said return is illegal and time barred. In view however, of the reminders the assessee was enclosing a return in compliance with the notice. It was pointed out in this letter that in the notice no information was given to the assessee as to why the proceedings had been started u/s 34 but from the correspondence the assessee was able to understand that the same is in respect of high denomination notes encashed in January 1946.

The assessee has tried to give his explanation about the high denomination notes. Towards the close of the letter however, it is specifically mention-ed that this return is submitted under protest and without prejudice to the assessee''s contentions. This letter clearly points out that at no stage the assessee can be said to have contracted to abandon its right, nor can it be said that the assessee willingly participated in the proceedings consequent on the notice of the 19th March 1951. By merely filing a return under protest it cannot be said that the assessee Waived his right.

When the assessment was made, the assessee was right in applying for the revision of the assessment u/s 27 and his failure to specifically take this point in that application also cannot constitute, a waiver of his right. Two appeals were filed before the Appellate Assistant Commissioner by the assessee - one against the order of assessment and the other against the order rejecting the application of the assessee u/s 27. The appeals were filed sometime in 1953. The appeals remained pending for a long time and they were disposed of by the Appellate Assistant Commissioner on 31st July 1956.

Before that on the 26th July 1956 the petitioner had pointed out that in view of the decision of the Bombay High Court the assessee felt that the proceedings were without jurisdiction and as such (sic) did not intend to proceed with the appeal. The Appellate Assistant Commissioner did not accept the prayer of the assessee and disposed of the appeal against the order rejecting the assessee''s petition u/s 27 on merits and remanded the case for re-assessment. Further appeals to the Appellate Tri-bunal were also rejected. It cannot be said therefore (sic) any stage the petitioner willingly abandoned his right and participated in the proceedings for assessment.

There is no other material placed before us by the counsel for the Department from which it could be inferred that there was a waiver by the petitioner of his right. To adopt the language of S. K. Das J. in the Supreme Court decision referred to above AIR 1959 SC 149 at 172 it would be going too far to hold that every unsuspecting submission to a law subsequently declared to be invalid must give rise to a plea of waiver. It need not be emphasised that even the consent does not confer any jurisdiction on a court which has otherwise no jurisdiction.

The counsel for the respondents has relied upon the Privy Council case of Ledgard v. Bull reported in 13 Ind App 134. Particular reference was made to the following passage at page 145:

When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the Defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit. The present case does not come strictly within these authorities....

In this case the suit though under the Patent Act could be filed before the District Judge, was filed before the Subordinate Judge. The District Judge by his order transferred the case to his file and the question which arose for consideration was whether the District Judge could validly proceed with the suit which had been transferred to his court although it was originally filed before a court without jurisdiction and it could only be filed initially in his Court. Their Lordships of the Privy Council held that there could be no waiver in the matter of jurisdiction.

This case therefore, supports the contention of the petitioner. Mr. Choudhuri has referred to this case and has sought to apply it to the facts of the present case on the ground that the invalidity of notice is not the condition precedent for initiation of the proceedings under See. 34. I have already dealt with this aspect of the argument and have come to the conclusion that the existence of a valid notice is a condition precedent for the exercise of the powers of assessment and in this view of the matter this case is of no assistance to the counsel for the respondents.

The next case referred to is the case of Balakrishnayya v. Linga Rao reported in AIR 1943 Mad 449. It was held in this case interpreting Section 39 of the CPC as follows:

The true effect of Section 39 is to recognise the transferee Court as having inherent jurisdiction to sec or deliver properties situate within its territorial limits, but only that the jurisdiction is to be invoked by the machinery provided by the section. Therefore the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction by the Court when proceedings for execution of the final mortgage decree are commenced in it and therefore when objection to the defect of jurisdiction is not taken in the first instance, the judgment-debtor must be deemed to have waived it.

In this case reference was made to the Privy Council decision reported in 13 Ind App 134 to which I have already alluded. The following observation of Mookerjee J. in the case of Gurdeo Singh v. Chandrika Singh, reported in ILR 1936 Cal 193 was quoted --

A court cannot adjudicate upon a subject-matter which does not fall within its province as defined or limited by law; this jurisdiction may be regarded to be essential, for jurisdiction over the subject-matter is a condition precedent to the acquisition of authority over the parties, and, if a Court has no jurisdiction over the subject-matter of the controversy, consent of the parties cannot confer such jurisdiction, and a judgment made without jurisdiction in such a case is absolutely null and viod; it may be set aside by review or appeal, or its nullity may be established, when it is sought to be relied upon in some other proceeding. An entirely different class of questions, however, wises, when it is suggested that a Court in the exercise of the jurisdiction which it possesses, has not acted according to the mode prescribed by the statute. If such a question is raised, it relates obviously, not to the existence of jurisdiction, but to the exercise of it in an irregular or illegal manner. This distinction between elements, which are essential for the foundation of jurisdiction and the mode in which such jurisdiction has to be assumed and exercised, is of fundamental importance, but has not always been sufficiently recognised.

This decision was based on the finding that the transferee court has inherent jurisdiction to execute the decree in respect of the properties within his jurisdiction and the order of transfer is only procedural matter and thus it could be waived. This case was approved by their Lordships of the Supreme Court in the case of Merla Ramanna Vs. Nallaparaju and Others, At page 93 of the report referring to the Venkamamidi Balakrishnayya Vs. Nannapaneni Linga Rao, it was stated as follows:

It was held therein that the Court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings.

That precisely is the position here.

The next case referred to is Chalturam v. Commissioner of Income Tax, Bihar,-reported in AIR 1947 FC 32. In this case certain notification, was issued by the Governor of Bihar on the 20th May 1940, retrospectively applying the provisions of the Income Tax Act to a certain Division known as Chotanagpur Division which was a partially excluded area, and a notice had been issued under 3. 22(2) prior to the date when this notification was issued.

The assessment was challenged on various grounds and one of the grounds taken was that the notice was bad inasmuch as it was issued before the notification came into force and the assessee could not be assessed under the provisions of the notification.

Dealing with this arguments it; was held by Mr. Justice Kania that the issue or receipt of a notice is not the foundation of the jurisdiction of the Income Tax Officer to make the assessment or of the liability of the assessee to pay the tax and further that the jurisdiction to assess and the liability to pay the tax are not conditional on the validity of the notice. He further pointed out that the liability of a citizen to pay tax arises under the charging section of the statute. The assessment is merely procedural to determine the quantum of the tax and that the provisions with regard to notice are procedural provisions.

(sic) the defect in the notice being a procedural defect it could always be waived by the assessee. There is a distinction between a notice issued u/s 22(2) and a notice issued u/s 34. A notice issued u/s 22(2) is not a condition precedent for the exercise of the power of assessment While a notice u/s 34 is a condition precedent for the exercise of jurisdiction. This case therefore does not apply to the facts of the present case.

In an earlier Bombay case reported in Commissioner of Income Tax Vs. Ekbal and Co., Commissioner of Income Tax v. Ekbal and Co. to which Mr. Justice Kania was a party it was hold by the Bombay Court that a notice given under Sec, 22(2) did not comply with the provision of that section because the notice was short. The notice was held to be bad and the assessee had made a return in compliance with that notice. He had taken no objection before the Income Tax Officer to his being assessed, but the court held that the notice being illegal the fact that the assessee submitted a return later or that it was accepted for the purpose of making the assessment did not cure the defect that initially lay in the notice.

In the case reported in (S) AIR 1955 Bom 227, Chagla C. J. held that no consent can confer jurisdiction upon a court if the court has no jurisdiction and on the view that the Income Tax Officer can have jurisdiction only provided he complies with the conditions laid down in Section 34, no consent by the assessee could give him a jurisdiction, or no waiver on his part could confer such jurisdiction. In the case of COMMISSIONER OF AGRICULTURAL Income Tax Vs. SULTAN ALI GHARAMI., although on facts it was held that there was no waiver, the facts were examined to find out whether there could be a waiver. It is argued by Mr. Choudhury that by implication this case held that the doctrine of waiver was available to the department in cases where the defective notice was given. I am however inclined to agree with the view taken by Chagla C. J. In the case reported in (1951) 20 ITR 432 (Cal) also it was observed as follows:

It is true that there can be a waiver as to the machinery of taxation which inures against the subject as was held in the case of" Attorney-General v. Aramayo, reported in (1925) 9. Tax Cas 445 , but I do not think that on the facts of the present case it can be said that there was a waiver. The return was not submitted voluntarily as in the case of Harakchand Makanji and Co. Vs. The Commissioner of Income Tax, but in compliance with a notice u/s 24(2), as in the case of the MAHARAJA OF PATIALA Vs. COMMISSIONER OF Income Tax (CENTRAL), BOMBAY., It was submitted under compulsion in response to a notice which contained various threats. Nor can it be correct in the case, of a person like the present assessee to attribute to him knowledge of the right that he was relinquishing. Again by the return that he submitted, the assessee did not offer to be assessed but claimed on the other hand that he was not liable to assessment since he showed an income below the assessable limit., There is also, the fact that there was no waiver of anything before the Income Tax Officer issued the notice u/s 24(2) and nothing had been done by the assessee up to and at that point of time which provided jurisdiction to the Income Tax Officer to commence assessment proceedings without issuing a notice u/s 38 which was imperative and had not been waived.

The counsel for the Department refers to the case of Firm Jitanram Nirmalram v. Commr. of Income Tax, reported in AIR 1952 Pat 363. Particular reference is made to the following passage at page 165:

Even if we assume for a moment that the notice u/s 34 is defective it is impossible in my opinion to hold that the proceedings are illegal or that excess assessment made is null and void. It is of importance to state that Section 34, though a part of the Act, imposes no charge on the subject and it is merely part of the machinery of the assessment. The liability to pay the tax is founded on Secs. 3 and 4 of the Income Tax Act, which are the charging sections. The jurisdiction, to assess the liability to pay tax cannot on principle depend on the validity of the notice. I do not think it is necessary in all cases in order to enable the Income Tax Department to receive the money that there should be an assessment actually served of that sum which is ultimately paid.

In this case the main question raised was that the Income Tax Officer could not have discovered on the date of the notice that the income of the applicant had escaped assessment for the years in question, as till then the final order of the Commissioner of Income Tax with respect to calculation of profits of the applicant had not been made. This contention was repelled. The observations referred to above are no doubt very broadly put. But in view of the decision of the Supreme Court to which I have already referred, I respectfully beg to differ from the view taken in the Patna case.

Mr. Choudhuri strongly relies upon the decision of this Court reported in (S) AIR 1957 GAU 103, Paresh Chandra Paul v. Commr. of Taxes, Assam. This case was under the Assam Sales Tax, Act. The provisions of the Assam Sales Tax Act are pari materia. The petitioner Paresh Chandra Paul was liable to payment of tax under the Act from the 1st February 1948. The petitioner did not apply for registration as required by Section 9 of the Act. Notice was therefore issued to him by the Superintendent of Taxes to get himself registered as a dealer. An application was then filed on the 31st March 1952, for registration wherein ho gave out his gross turnover for twelve months ending 1947-48.

On 17th April 1952, he was duly registered but no return was submitted by him as required by Section 16(1) of the Act. He was then served with a notice u/s 17(4) of the Act calling upon the petitioner to submit his return for the periods ending on, 30th September 1949 to 31st March 1952. The Superintendent of Taxes not having been satisfied with the return filed by the petitioner, issued notice on the petitioner u/s 17(2) of the Act for production of evidence and then made an assessment under. Section 17(3). These assessments were challenged. The matter came up on reference to the High Court. The question referred to the High Court was in the following terms --

Whether on the facts and circumstances of the case, there has been sufficient compliance with the provisions of Sections 19 and 19A of the Act; and if not, whether the assessments in question are void?" Section 19 is in similar terms as See. 34 of the Income Tax Act and the contention raised in this case was that as no notice was issued u/s 19 or Section 19A, the Superintendent of Taxes has no jurisdiction to assess the petitioner. Two points were urged on behalf of tire department. Firstly it was argued that the jurisdiction to assess does not necessarily depend upon the validity of the notice issued under a particular section and even if there was some defect in the notice the jurisdiction of the officer to assess would not be necessarily affected. It was thus urged by the counsel for the department that these procedural sections should be so construed as to make the working of the Act effective.

If therefore the circumstances mentioned in the section which would confer jurisdiction on the Sales Tax Officer to assess, do exist the jurisdiction will not be lost merely because of some irregularity in the procedure adopted by the Officer in making the assessment. Secondly it was contended that there was substantial Compliance in the present case, because a notice in effect had been given to the assessee to file his returns, though labelled as a notice u/s 17(4) of the Act; and the assessee in pursuance thereof had filed his returns for the periods in question without any protest whatsoever. Both these contentions raised on behalf of the Department were accepted. It was observed as follows:

If Jurisdiction to act exists under the law, the jurisdiction will not be affected merely because the Officer under some misconception of the law adopted a procedure, which was somewhat irregular, but did not even prejudicially affect the assessee.

Of course, in a taxing statute, the tax has to be realised in accordance with the terms of the statute, but unless any particular procedure adopted by the Officer is wholly without the authority of the law, the assessment proceeding will not be vitiated merely because of some irregularity in the procedure.

It does not appear from the report as to what was the defect in the notice which was actually issued in this case u/s 17(4). The case is mainly based on the assumption, that there was a notice u/s 19A though it was labelled as a notice u/s 17(4). It was therefore not a case where there was no notice or that the notice was invalid in the eye of law. If the notice u/s 34 complies with all the requirements of Section 22(2) and if the other conditions necessary for exercise of powers u/s 34 exist, merely if some wrong section is quoted, it will not render the notice either invalid or in the eye of law non-existent.

There are however certain observations in this case which go to show that the issue of a notice is only procedural and is not a condition precedent for the exercise of power u/s 19. But these observations must be taken to have been overruled by the express decision of the Supreme Court in the case reported in AIR 1959 SC 213 which I have referred to above. The next passage relied upon by Mr. Choudhuri occurring at page 108 of (S) AIR 1957 Assam 103 (ibid) is as follows:

While I respectfully agree that the initiation of proceedings u/s 34 was a condition precedent to the assumption of jurisdiction by the In-come-tax Officer to assess where an income has escaped assessment in any particular year, I find, difficult to accept the broad proposition that in case of this kind there could be waiver or acquie sconce on the part of the assessee so as to confer jurisdiction upon the Income Tax Officer to proceed to assess.

A procedural provision, which is meant for the benefit of the assessee, can in. some circumstances be waived. If the Officer of his own accord proceeds to assess on the ground that some income or turnover has escaped assessment after the expiry of the due date under which he should have taken steps to proceed in the normal course under the general provisions of the law for the purpose of making an assessment, he must comply with the provisions of Section 34, under the Income Tax law or for that-matter u/s 19A of the present Act.

The conditions mentioned in the section must exist to enable the Officer to take action. But, where there is some irregularity in the form of the notice issued on the assessee, that irregularity could be waived by the assessee in submitting his return showing an assessable income and otherwise taking part in the proceedings without any protest as to the form of the notice.

In such a case, the jurisdiction of the Officer will not be ousted. But, if the assessee refuses to submit any return or submits a return showing a non-assessable outturn and does not otherwise take part in the proceedings, the Officer will have no jurisdiction to assess him or to proceed to deal with him under the other penal sections of the Act.

With great respect, I am of opinion that these observations are very wide and have got to be read in the context of the facts of that case. The existence of a valid notice is as much a condition precedent for the exercise of the jurisdiction to assess u/s 34 as the existence of the other condition namely the satisfaction of the Income Tax Officer on information that the income has escaped, assessment. The issue of a notice is not a mere procedural requirement.

But apart from that even in this case it is clearly laid down that the assessee can be said to have waived his right only if he submits his return and otherwise takes part in the proceedings without any protest as to the form of the notice. In the present case the return was filed under a protest. The point was taken in appeal that the proceedings were without jurisdiction as there was no valid notice and thus it cannot be said that there are facts which would constitute waiver in the present case. In my opinion there is no substance in the contention raised by the counsel for the Department on this behalf.

There could neither be a waiver in respect of a condition precedent to the exercise of the jurisdiction, nor the facts before us make out a case of waiver. Mr. Choudhuri also contends that (he petitioner is not entitled to any relief under Article 228 of the Constitution as he has an alternative remedy available to him. If the assessment is without jurisdiction, he can file an appeal against the assessment Order in due course. In the matters relating to tax, ordinarily the remedies provided under the Act should be exhausted.

Secondly it is contended that the petitioner is guilty of laches and. acquiescence. At the earliest opportunity before the Income Tax Officer when the first assessment had been made, the petitioner (sic) no objection to the jurisdiction of the Income Tax Officer to proceed with the assessment. It was in 1956 when the limitation to take proceedings u/s 34 might have expired that the petitioner raised the question for the first time about the invalidity of the proceedings.

Even assuming that he has a right to raise the point at this stage, he should have come to this Court after the ex parte assessment had been made in 1952 for a writ of certiorari quashing the order of assessment on the ground that the assessment was without jurisdiction. The delay in coming to this Court disentitles him to a relief under Article 226 of the Constitution. I do not think there is much substance in this contention. The existence of an alternative remedy is not an absolute bar to grant a relief by this Court under Article 226 of the Constitution. If the defect of jurisdiction is apparent on the face of the record, i.e. patent, this Court will not refuse relief to the petitioner even on the ground of acquiescence.

In Cases where the defect of jurisdiction is latent, namely it can be discovered after enquiry, the ground of laches and misconduct may be valid ground to refuse the relief of prohibition. In the present case, as I have already held, the proceedings were on the face of it without jurisdiction inasmuch as no valid notice which is a condition precedent for the exercise of jurisdiction was given. The defect of jurisdiction therefore appears on the face of the proceedings and there is no ground for refusal to grant any such a relief.

In the case of Burder v. Veley, (1840) 9 LJ QB 287 Lord Denman, C. J. said

The cases seem to establish and consistency of reasoning requires, that the power of prohibition is in no case taken away by the privilege of appeal. If called upon, we are bound to issue our writ of prohibition, as soon as we are duly informed that any court of inferior jurisdiction has committed such a fault as to found our authority to prohibit, although there may be a possibility of correcting it by appeal. For there is no reason for driving the subject to that expensive process, to abide the chance of a repetition of the error....

This principle has been reaffirmed by Lord Goddard in the case of R. v. Comptroller-General of patents and designs reported in 1953-I All ER 862. At page 865 he observed as follows.

Objection to jurisdiction can always be taken by plea, and, if an appeal lies from the court or tribunal in which such a plea is raised, the appellate court could, no doubt, decide the question of jurisdiction, but it by no means follows that, because there is an appeal, the power of this Court to issue a prohibition is taken away. There is no technical obstacle to the coexistence of a right to appeal and to a prohibition.

In the case of Farquharson v. Morgan, reported In 1894-1 Q.B. 552 it was held by Lord Halsbury that it has been long settled that, where an objection to the jurisdiction of an inferior Court appears on the face of the proceedings, it is immaterial by what means and by whom (he Court is informed of such objection. The Court must protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior Court from proceeding in matters as to which it is apparent that it has no jurisdiction. The objection to the jurisdiction does not in such a case depend oh soma matter of fact as to which the inferior Court may have been deceived or misled, or which it may have unconsciously neglected to observe, and the judge of such Court, therefore, must or ought to have known that he was acting beyond his jurisdiction. Lopes L. J. also observed as follows:

It seems to me drat there has always been recognised a distinction between what I will call a latent want of jurisdiction, i.e. something becoming manifest in the course of the proceedings, and what I will call a patent want of jurisdiction, i.e. a want of jurisdiction apparent on the face of the proceedings. Whilst in cases of latent want of jurisdiction there has always been a great conflict of judicial opinion, as to whether the grant of the writ was discretionary or not, the authorities seem unanimous in deciding that, where the want of jurisdiction is patent, the grant of the writ of prohibition is of course.

In the case of Mayor of London v. Cox, (1867) 2 HL 239 at p. 279, Willes, J. giving his opinion to the House of Lords observed that

upon an application being made in proper time, upon sufficient materials, by a party, who has not by misconduct of laches lost his right, its grant or refusal is not in the mere discretion of the Court.

He further observed that

where, however, the defect is not apparent, and depends on some fact in the knowledge of the applicant which he had an opportunity of bringing forward in the Court below, and he has thought proper, without excuse, to allow that Court to proceed to judgment without setting up the objection, and without moving for a prohibition in the first instance, although it should seem that the jurisdiction to grant a prohibition in respect of the right of the Crown is not taken away, for mere acquiescence does not give jurisdiction, yet, considering the Conduct of the applicant, the importance, of making an end of litigation, and that the writ, though of right is not of course, the Court would decline to interpose, except perhaps upon an irresistible case, and on excuse for the delay, such as disability, malpractice, or matter newly conic to the knowledge of the applicant.

In the case of S.C. Prashar and Another Vs. Vasantsen Dwarkadas and Others, Desai, J. whose judgment was affirmed by Chagla, C. J. and Tendolkar, J. has set out the, principle measure and scope of exercise of jurisdiction by the High Court in granting a writ of prohibition in the following terms:

(i) The High Court has always the power and the discretion to grant or refuse to grant this writ which though it is primarily intended for enforcement of fundamental rights must also issue where necessity demands immediate and decisive interposition.

(ii) The considerations that arise when this writ is asked for on the ground that any inferior court or person or body of persons having legal authority is committing or has committed an error of law apparent on the face of its proceedings and those that arise in a case of excess or usurpation of jurisdiction by such Court or authority must necessarily be differentiated for in the former case there is an erroneous exercise of jurisdiction which exists while in the latter case there is no jurisdiction at all.

(iii) Absence of jurisdiction may be patent that is apparent on the face of the proceedings, or latent in the sense that it is not apparent. Where the defect is not apparent, the court in its discretion may refuse the writ if the facts or circumstances attending the case show undue delay, insufficient materials, misconduct, laches or acquiescence on the part of the party for it or are such as would render it unjust on the part of the Court to interpose.

(iv) Where, however, there is patent lack of jurisdiction and the Court is immediately satisfies that the inferior Court or authority has exceeded its jurisdiction, the Court will very "readily interpose. The-discretion to grant or refuse to grant the writ is of course there. But since discretion contemplates an exercise of arbitrium and not arbitrariness, the writ must go though not of right, nor of course yet almost as a matter of course unless an irresistible case-for withholding the writ is made out.

This, in my opinion, correctly sets out broadly conditions under which a writ of prohibition can be granted. In the present case it is also significant to note that the proceedings of assessment arc still continuing though in view of the order of remand, and the petitioner took the objection-before the Appellate Assistant Commissioner and the-Appellate Tribunal about the invalidity of the notice when the matter was before them on appeal from the order of the ex parte assessment. The petitioner had applied for permission to withdraw the appeal, as, according to him, the assessment was without jurisdiction.

The prayer was refused by the Appellate Assistant Commissioner; further dealing with the merits-of the points, the Appellate Assistant Commissioner observed that the point was never taken before and it could not therefore be allowed to he raised at that: stage. It was further held by the Appellate Assistant Commissioner that the appeal was against the order rejecting the application of the petitioner u/s 27 of the Act and in that appeal, the validity of the notice could not be considered. The appeal was however allowed and the case was sent back to the Income Tax Officer for re-assessment.

In the appeal against the order of assessment, the Appellate Assistant Commissioner held that as the assessment had already been set aside in appeal u/s 27 of the Act and the Income Tax Officer had been directed to make a fresh assessment in accordance with the law, the Contention as regards the merit of assessment and invalidity of the proceedings did not arise in that appeal. The appeal was therefore struck off. In the two appeals filed against the two orders before the Appellate Tribunal similar view was taken by the Tribunal also.

The petitioner was thus pursuing his remedy under the Act and having failed to persuade the proper authorities to go into the matter of the invalidity of the proceedings had no other alternative but to approach this Court when the matter went back again to the Income Tax Officer. The final order was passed by the Appellate Tribunal on 30-11-1959. In view of these proceedings, it can-not be said that the petitioner is guilty of laches or acquiescence by which he can be said to have lost the right to approach this Court under Article 226 of the Constitution.

In the result therefore, the proceedings be-fore the Income Tax Officer, in my opinion, are without jurisdiction and the petitioner is entitled to writ of prohibition directing the opposite party, - the Income Tax Officer not to proceed with the re-assessment in pursuance of the notice dated 19th March, 1951. We make no orders as to costs.

C.P. Sinha, C.J.

I agree.

Deka, J.

I agree.