TMI Blog1962 (7) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ness connection with such person, or through whom such person is in the receipt of any income, profits or gains upon whom the Income-tax Officer has caused a notice to be served of his intention of treating him as the agent of the non-resident person shall, for all the purposes of this Act, be deemed to be such agent. Under the said provision of section 43, the Income-tax Officer issued a notice to the assessee firm declaring his intention to tax the assessee in its status of agents of M/s. Jamal Ramji and Co. The assessee then stated that it had no objection to being treated as an agent. The assessee was assessed accordingly. It appears that a similar order was passed for the next assessment year 1942-43. Thereafter, every year in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal has drawn up a statement of case and referred to this court the following question: Whether, on the facts and circumstances of this case, the assessment made on the assessee as agents to Messrs. Jamal Ramji Co. is valid in law? Mr. Mehta appearing for the assessee frankly stated that in view of the earlier decision of this court, he would not press the assessee's conten- tion that mere absence of notice under section 43 would invalidate an assessment. It is, however, his contention that the Tribunal was in error in holding that the assessee had waived notice under section 43. According to him, the mere fact that the assessee had filed a return under sub-section (2) of section 22 was not sufficient to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively, the Tribunal has inferred that the assessee had waived notice under sec- tion 43. Assuming for a moment that the conduct of the assessee in the previous years was not relevant, the two facts that the assessee filed a return in response to a notice under sub-section (2) of section 22 without any protest and in the return admitting its capacity as an agent, taken together, are sufficient to raise an inference in the instant case that the assessee had waived notice. It is true that to draw an inference of waiver relating to any fact, it must be established that a person waiving his right was conscious of his right. In the present case, having regard to the facts of the case, it cannot be said that the assessee was not aware that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue that, on the facts of that case, it should be taken that the assessee had waived notice, because he had filed a return in response to a notice under section 34. On these facts, Mr. Mehta argued that in that case the assessee filed a return in response to a notice under section 34, whereas, in the present case, the assessee filed a return in response to a notice under sub-section (2) of section 22. There is a material difference in these two cases, which has been overlooked. In that case the assessee had filed a return under protest and that indicated that he was not submitting to the jurisdiction of the authorities. In the instant case not only there was a return filed without protest but the assessee has therein also accepted its status ..... X X X X Extracts X X X X X X X X Extracts X X X X
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