TMI Blog1967 (6) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... than 5th April, 1958, or within 35 days of the receipt of this notice, a return in the attached form of your total income and total world income assessable for the said year ending 31st of March, 1949. " Thus, it is clear that by this notice issued under section 34 of the Act, the assessee was called upon to file his return for the assessment year 1948-49, and not for the assessment year 1949-50. Along with this notice under section 34, a notice under section 22(2) and section 38 of the Act was also served upon the assessee. In this notice under section 22(2) it was mentioned that the notice was in respect of income-tax year 1949-50, i.e., for the assessment year 1949-50. On November 15, 1958, the return was submitted by the assessee to the Income-tax Officer and along with that return he also sent a covering letter, bearing date November 15, 1958. The covering letter made it clear that he was objecting to the notice on the ground that the notice did not state in clear terms as to under which sub-section of section 34 the notice had been issued. He, therefore, submitted the return for the assessment year 1949-50 under protest. No other ground for protest was set out in that co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lchand Malukchand Dagli v. Commissioner of Income-tax. In that case, a notice under section 34 of the Act was issued on the assessee. In the notice the Income-tax Officer had mentioned that he had reason to believe that the assessee's income assessable to income-tax for the year ending 31st March, 1950, had escaped assessment and, therefore, on the basis of that notice under section 34 which was for the assessment year 1949-50, the Income-tax Officer proposed to reassess the income of the assessee. In the same envelope along with this notice under section 34, was another notice of the same date headed "notice under sections 22(2) and 38 of the Indian Income-tax Act, 1922" and this latter notice in express terms related to the assessment year 1950-51. The assessee did not file the return immediately and the Income-tax Officer issued another notice under section 22(4) against the assessee. The assessee finding this discrepancy in the assessment years mentioned in the two notices sent by the Income-tax Officer on 9th March, 1959, addressed a letter, dated July 15, 1959, to the Income-tax Officer pointing out the discrepancy and requesting him to issue a fresh notice setting out the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on a decision of the Bombay High Court in Commissioner of Income-tax v. Ramsukh Motilal. In that case, what happened was that the notice under section 34 was issued upon the assessee and instead of giving him time of 30 days, time of only 6 days was given and the assessee in that particular case complied with the notice but subsequently the question arose whether the notice under section 34 was validly issued or not; and it was held by the learned judges of the Bombay High Court that if a notice under section 34 of the Act embodies any of the requirements under section 22(2) it must at the same time permit the assessee to comply with that requirement within a period which is not less than 80 days. If, therefore, a notice under section 34 gave only six days to the assessee to make a return under that section, the notice was clearly illegal and such illegality could not be waived by the assessee. It was further held that the failure to give notice or a defect in a notice under section 22 is a procedural defect ; in the case of section 34 it is not a procedural defect but is a failure to comply with a condition precedent to the assumption of jurisdiction. At page 59 of the repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... your income assessable to income-tax for the year ending 31st March, 1948, has (a) escaped assessment." The assessee understood this notice as relating to the assessment year 1948-49, took time for submitting his return pursuant to that notice and eventually filed a return for the assessment year 1948-49. Various other contentions appear to have been raised before the Income-tax Officer and before the Appellate Assistant Commissioner; but before the Appellate Tribunal, the assessee for the first time contended that the reassessment proceedings under section 34 were invalid as no notice was issued in respect of the assessment year 1948-49. This contention was upheld by the Appellate Tribunal and on a reference to the High Court, the Patna High Court held that as the Income-tax Officer, to all intents and purposes, issued a notice to reassess the assessee's income for the assessment year 1948-49 and it was so understood by the assessee, and as there was no violation of any condition precedent for the assumption of jurisdiction under section 34, the obvious clerical mistake in the notice in mentioning the year of assessment did not invalidate the notice or the reassessment proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 34 and the other in the notice under section 22, and the two notices are part of one and the same notice served upon the assessee, then also the notice is invalid because of the clear and patent contradiction between the two constituent parts of the notice. Even if that view is not taken into consideration for the time being, the question is whether the revenue is entitled to rely on the notice headed under section 22(2) for the purpose of contending that the assessment year mentioned in the notice under section 34 was a mistake for the assessment year 1949-50. The action of the assessee in submitting the return, according to the view taken by the Bombay High Court, cannot waive the want of jurisdiction in the Income-tax Officer if the notice itself is invalid. In the instant case, in view of the earlier judgment of this High Court, with which we are in agreement, it is clear that the notice under section 34 was not a valid notice. So far as the decision of the Bombay High Court is concerned, it is true that there is a conflict of decisions between the Bombay High Court on the one hand and the Patna and Calcutta High Courts on the other as to whether a mistake or a defect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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