TMI Blog1963 (3) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Income-tax Officer issued a notice under section 34 of the Income-tax Act to the assessee. The said notice was served on March 14, 1956. In the notice it is stated: Whereas I have reason to believe that your income assessable to income-tax for the year ending 31st March, 1948, has... By the said notice, the assessee was required to file a return in the attached form of his total income and total world income assessable for the said year within thirty-five days of the receipt of the notice. The assessee on being served with the notice filed a petition on April 16, 1956, praying for one month's time for submission of the return. In this petition the heading is: File No. C/406 Re: Return under section 34 for the year 1948-49. (vide page 7 of the paper-book). Return was eventually filed for the assessment year 1948-49 showing a total income of ₹ 64,079 which was the same as computed in the original assessment made on January 31, 1949. On being called upon to explain and prove the nature and source of the money with which the house at Giridih was acquired in the name of his wife, the assessee's counsel appeared and argued that the assessee wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax by Mr. R.J. Bahadur, learned standing counsel for the department, that in the first portion of the notice issued under section 34 of the Act the figure 1948 was an obvious clerical error or a misdescription for the year 1949, the notice was not invalid, the Income-tax Officer, on the facts of this case, did, to all intents and purposes, issue notice to reassess the income for the assessment year ending the 31st of March, 1949, it was so understood by the assessee himself and, therefore, the assessment could not be held to be invalid by the Tribunal as being without jurisdiction as having been made without the issuance of a valid notice. In reply, Mr. S.N. Dutta, learned counsel for the assessee, submitted that the reassessment for the assessment year 1948-49 is invalid and without jurisdiction as having been made without service of any notice under section 34 calling upon the assessee to file a return for that assessment year. He further submitted that the mere fact that the assessee understood the notice in question to be one for the assessment year 1948-49, filed a return for that year and objected to the validity of the assessment for the first time by taking additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of assessment. The notice was issued after obtaining the sanction of the Commissioner, which sanction must have been obtained with reference to the facts of this case for reassessment of income for the year 1948- 49 as the house had been purchased in the accounting year 1947. The jurisdiction had rightly been assumed by the Income-tax Officer to reassess the assessee by issuance of a valid notice which did not suffer from any of the infirmities or violation of any of the conditions precedent for the assumption of jurisdiction. The obvious clerical error or misdescription in the notice, in my judgment, could not invalidate the notice, and, consequently, the reassessment proceeding or the order. Learned counsel for the assessee has placed strong reliance upon a decision of the Calcutta High Court in Commissioner of Agricultural Income-tax v. Sultan Ali Gharami [1951] 20 I.T.R. 432, the decision of the Bombay High Court in Commissioner of Income-tax v. Ramsukh Motilal [1955] 27 I.T.R. 54, the decision of this court in Commissioner of Income-tax v. Maharaja Pratap Singh Bahadur [1956] 30 I.T.R. 484 and the decision of the Supreme Court in Y. Narayana Chetty v. Income-tax Officer [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pports the contention raised on behalf of the department in the instant case. In the case of Commissioner of Income-tax v. Ramsukh Motilal [1955] 27 I.T.R. 54, 60, decided by the Bombay High Court, the notice under section 34 served upon the assessee gave only six days' time to make the return. In that situation, it was held that the notice was clearly illegal and the illegality could not be waived by the assessee. It is to be noticed, however, that the time mentioned in the notice was in clear violation of the statutory requirement and it was not a case of an obvious clerical mistake in mentioning the time within which the assessee was required to file his return. Chagla C.J., with reference to the facts of that case, said 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 under section 34 without complying with the condition precedent laid down in section 34 which alone could have given him jurisdiction to assessee the assessee. In the instant case, however, I have found that there was no illegality committed by the Income-tax Officer and the requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precedent to the validity of any reassessment made under section 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 reassessment passed by him would be void and inoperative. The notice against the three firms was attacked as defective because it was purported to have been issued against the firm and no notice had been issued against the respective partners of the firm. But this contention was not accepted. On a consideration of the relevant provisions of the Act, it was held that the notice issued in the name of the firm and served on one of the partners was a valid one. The proposition of law laid down by the Supreme Court can be said to be well established by now but, as I have already said, it cannot be applied to the facts of this case and the Income-tax Tribunal committed an error of law in holding that the notice served upon the assessee in this case was invalid in law. Reliance was placed on behalf of the department upon a decision of the Madras High Court in the case of Commissioner of Income-tax v. K.M.N.N. Swaminathan Chettiar [1947] 15 I.T.R. 430. In that case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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