TMI Blog1956 (8) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Income-tax Officer, but the contention of the assessee was that notice was not served upon him, and the assessee before the Income-tax Officer did not take up any contention with regard to the failure to serve upon him a notice under section 43. It was only in appeal before the Appellate Assistant Commissioner that this contention was raised for the first time. The Appellate Assistant Commissioner held that no notice under section 22(2) was served on the appellant, but he rejected the contention of the assessee that by reason of the failure to serve a notice under section 43 the assessment was bad. The Tribunal took the same view as the Appellate Assistant Commissioner and dismissed the appeal to the extent that it related to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised that presumption in the normal circumstances, but when the assessee himself stoutly contests the case put forward by the Department that he had been served with the notice and actually invites a finding of the Appellate Assistant Commissioner, which finding is given in his favour, it is rather curious for Mr. Palkhivala now to suggest that we should rely on the presumption and not on his client's own clear admission and the finding of fact by the Appellate Assistant Commissioner. Therefore, this reference must be argued on the basis that a notice under section 22(2) was not served upon the assessee. The fact therefore is that without having been called upon to make a return by a notice under section 22(2) the assessee voluntar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee; the Legislature insists upon the notice being served as a condition precedent to the exercise of jurisdiction. Any condition which is merely for the benefit of a party can in law be waived by that party, but when the notice is required for the exercise of jurisdiction, then the party upon whom it has to be served cannot waive that notice because other questions are involved besides his own benefit or advantage. If, therefore, on principle, apart from authorities, the notice under section 43 has nothing whatever to do with the jurisdiction of the Income-tax Officer to tax an agent for the liability to pay tax of the non-resident principal, then the notice contemplated by that section cannot be looked upon as a condition precedent which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position and status as an agent of the nonresident. It is said by Mr. Palkhivala that a subsequent decision throws some doubt as to whether in this case we considered the question as to whether a notice under section 43 is a condition precedent and whether it could be waived or not, and the decision relied upon is an unreported decision, Bhawanji Laxmi Das Co., Bombay v. Commissioner of Income-tax, Bombay I.T. Ref. No. 40 of 1954, decided on 17th February, 1955. In that case no notice under section 43 had been served and no return was filed by the assessee, and the contention of the Department was that inasmuch as the second proviso to section 43 had been complied with it was not necessary to serve a notice under section 43. We rejected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T.R. 54. We were there dealing with a notice under section 34 and we said that whereas section 22 was a procedural section and the failure to give notice or a defect in a notice was a procedural defect, in the case of section 34 it was not a procedural defect but was a failure to comply with a condition precedent to the assumption of jurisdiction. It is not possible to suggest that section 43 stands on the same footing as section 34. Section 43 is procedural, whereas section 34 is a section dealing with the jurisdiction of the Income-tax Officer and lays down the conditions which have got to be complied with before that jurisdiction can be assumed. In our opinion, therefore, the answer to the question submitted to us must be in the neg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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