TMI Blog1961 (8) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... t on him for the aforesaid year was, however, concluded on a total income of ₹ 8,009. Seven years later the Income-tax Officer obtained information regarding large deposits having been made in the assessee's name in the Abdul Rehman Branch of the Central Bank of India Ltd., in Bombay, and thereupon issued on March 18, 1954, the notice under section 34 of the Act. It was served on the assessee's son on March 22, 1954, and the Income-tax Officer, treating the service insufficient, issued another notice, which was affixed in the business premises of the assessee, because he was said to be then in Bombay or Ceylon. Subsequently, the assessee filed a return and the reassessment was concluded under sections 23(3) and 34 of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e absence of the addresses. The assessee's counsel requested an opportunity to examine the witnesses, but no such opportunity was given to him. We are, therefore, of the opinion that there was no proper service of the notice on the assessee... Thereafter, the Commissioner of Income-tax applied and the following question has been referred: Whether on the facts and in the circumstances of the case, the reassessment for the year 1945-46 made on March 9, 1955, was valid? On January 2, 1961, a Division Bench of this court, of which one of us was a party, had found additional facts to be necessary for answering the question. It had been then held that the jurisdiction of the Income- tax Officer under section 34 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en properly served. In other words, it was held that even though the taxing authority making the assessment had erroneously found the earlier notice to be improperly served, the condition precedent to the notice being properly served would be complied with, should a notice, though not immediate, be properly served. It is, therefore, clear that the case would be of no assistance unless the earlier notice on the assessee's son in this reference be found to be sufficient; but that cannot be said, because of the earlier information of the assessee being absent in Bombay and the service on the son in these circumstances becoming an idle formality. The Tribunal, therefore, has rightly relied on Myitkyina Trading Depot v. Deputy Tahsildar, Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under section 34 of the Act. Here the legal position has been stated in these words: The argument is that the service of the requisite notice on the assessee is a condition 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 an 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al steps taken by the assessee legally amount to such waiver. The rule of what amounts to waiver is well settled and we need refer only to the observation in Basheshar Nath v. Commissioner of Income-tax(1), which has been already quoted in our earlier order, that had called for further statement of facts. It was said in that case that there must be a conscious an intentional relinquishment of an existing right and, therefore, such relinquishing of the right must be established. The several acts of the assessee narrated in the fresh statement of facts do not lead to the only conclusion of the assessee having relinquished his objections to the invalid notice. He was undoubtedly anxious to send a return and was asking for time; but that may be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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