A notice under Section 34 of the Income-tax Act, 1922, is a condition precedent to the assumption of jurisdiction by the Income-tax Officer, and the failure to give a proper notice or a defect in the notice cannot be waived by the assessee.

The following questions of law were referred to the High Court.

(1) Whether the notice issued under S.34 dated 19-3-1949, requiring the assessee to file a return by 25-3-1949, is valid in law?

(2) If the answer to the first question is in the negative, whether the proceedings taken in pursuance of such notice, without any objection on the part of the assessee as to the invalidity of that notice and in spite of compliance as to the requirements of the notice, are void in law and the assessment made in consequence thereof is also null and void?

CHAGLA, C.J.:- This reference raises a rather important question as to the validity of a notice issued under S.34, 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 4-12-1948, 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 S.34 on 19-3-1949. The notice required the assessee to make a return by 25-3-1949. 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 S.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 S.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 S.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-s. (2) of S.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, S.34 incorporates by reference the requirements of a notice contained in sub-s. (2) of S.22. It is true that the notice need not contain all the requirements which are mentioned in S.22 (2). Any one of the requirements may be mentioned. Therefore, we must turn to S.22 (2) in order to find out what are the requirements of a notice mentioned in that sub-section.

3. Sub-section (2) of S.22 provides, to the extent that it is material, that the Income-tax. Officer may serve a notice upon a person requiring him to 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 S.22 (2) are the furnishing of a return, the verification and the particulars it required, and according to Mr. Joshi what S.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 S.22 (2) is not a requirement of the notice.

In our opinion that contention is clearly untenable. Each of the three requirements mentioned in S.22 (2) is qualified by the Legislature providing t