A notice under section 34 of the Indian Income-tax Act is a condition precedent to the assumption of jurisdiction by the Income-tax Officer and the failure to give a proper notice cannot be waived by the assessee.

JUDGMENT - Chagla, C.J.

1. This reference raises a rather important question as to the validity of a notice issued under section 34 of the Indian Income-tax Act and also as to whether if such a notice is invalid it could be waived. The very few facts that are necessary to understand this contention are that the assessment year of the assessee is 1944-45 and that he was assessed on the 4th December, 1948, on an income of Rs. 6,484. The Income-tax Officer was then satisfied that some income had escaped assessment and he therefore issued a notice under section 34 on the 19th March, 1949. The notice required the assessee to make a return by the 25th Mach, 1949. The assessee made a return and he was assessed. He then appealed to the Appellate Assistant Commissioner and before the Appellate Assistant Commissioner for the first time he raised the contention that the notice issued under section 34 was invalid and therefore the assessment must be set aside. The Appellate Assistant Commissioner rejected his contention. He then went in appeal to the Tribunal and the Tribunal upheld his contention. The Commissioner has now come on a reference to us.

2. Now, turning to section 34, it deals with two cases of escaped assessment which fall under (a) and (b). The first case is where there is an omission or failure on the part of the assessee to make a return, and the second case is where, even without there being an omission or failure on the part of the assessee, the Income-tax Officer receives certain information with regard to income having escaped assessment. Therefore the first two conditions that are necessary before an assessment under section 34 can be made is that the case must fall under (a) or (b) to the satisfaction of the Income-tax Officer. After the Income-tax Officer is satisfied he has got to serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22, and after this notice has been served the jurisdiction is conferred upon the Income-tax Officer to proceed to assess or re-assess the income which has escaped assessment. Therefore section 34 incorporates by reference the requirements of a notice contained in sub-section (2) of section 22. It is true that the notice need not contain all the requirements which are mentioned in section 22 (2). Any one of the requirements may be mentioned. Therefore we must turn to section 22 (2) in order to find out what are the requirements of a notice mentioned in that sub-section.

3. Sub-section (2) of section 22 provides, to the extent that it is material, that the Income-tax Officer may serve a notice upon a person requiring him of furnish, within such period not being less than 30 days as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth along with such other particulars as may be provided for in the notice his total income and total world income during the previous year. Mr. Joshis contention is that the only requirements under section 22 (2) are the furnishing of a return, the verification and the particulars if required, and according to Mr. Joshi what section 34 lays down is that the notice must contain all of these three requirements or any one of these three requirements. Mr. Joshis contention is that the period of the notice which is mentioned in section 22 (2) is not a requirement of the notice. In our opinion that contention is clearly untenable. Each of the three requirements mentioned in section 22 (2) is qualified by the Legislature providing that the notice must give time to the assessee to comply with that requirement within a period which cannot be shorter than 30 days. The requirement is not merely to make a return or to verify or to give particulars. The requirement is in each case that the return must be made, the verification must be made, or the particulars must be given, within a period of not less than 30 days. Therefore it

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