MEHROTRA J. - The petitioner - Messrs. Tansukhrai Bodulal - is a Hindu undivided family firm carrying on business at Kampur in the district of Nowgong. Shri Gordhan Das Khakolia is the karta of the Hindu joint family. On the 25th March, 1947, the assessment of the petitioner for the assessment year 1946-47 was completed by the Income-tax Officer of Gauhati, under section 23(3) of the Indian Income-tax Act, 1922 (hereinafter called "the Act"), on a total income of Rs. 30,955. On the 24th March, 1951, the petitioner received a notice dated 19th March, 1951, purporting to be one under section 34 of the Act issued by the Income-tax Officer, Nowgong, arrayed as respondent No. 1 to the present petition.
The petitioner by the said notice was asked to submit his return for the period ending the 31st March, 1947, within 31st March, 1951. Several reminders were sent by the respondent No. 1 to the petitioner to submit his return for the aforesaid period and ultimately the petitioner submitted a letter dated 24th April, 1951, along with which he filed a fresh return under protest. In this fresh return he showed his income as given in the original return. I shall have to refer to this letter later when I deal with the points raised by the petitioner. The 7th February, 1952, was fixed as the date for hearing of the matter by respondent No. 1.
On this date the case was adjourned on the request of the petitioner as the karta of the family was away and 4th March, 1952, was fixed for the hearing of the case. On that date an application was again made for adjournment on the ground that the karta of the family was in connection with the marriage of his daughter and it was not possible for the firm to produce documents and explain matters in the absence of the karta.
Further, a telegram from the advocate of the petitioner had been received from Calcutta and filed before the Income-tax Officer in which it was stated that the counsel could not leave Calcutta and was unable to reach there before the 6th March, 1952. The prayer for adjournment was rejected and the assessment was completed under section 23(4) on that very date on an amount of Rs. 1,12,955. The petitioner had also contended that there was no escape of assessment and that the original assessment had been made on consideration of all the facts which were in possession of the department.
There was no information in the possession of the Income-tax Officer justifying reassessment under section 34 of the Act. Thereafter, an application under section 27 of the Act was failed for cancellation of the assessment made on the 4th March, 1952. An appeal was also preferred against the assessment order of the 4th March, 1952, to the Appellate Assistant Commissioner on the 5th September, 1952, who is impleaded as respondent No. 2 in this petition. By his order dated 11th October, 1952, the Income-tax Officer rejected the petitioners application under section 27 of the Act.
An appeal against this order was also preferred to the Appellate Assistant Commissioner. On 26th July, 1956, during the pendency of these appeals an application was filed by the petitioner before the Appellate Assistant Commissioner to the effect that the proceedings under section 34 for reassessment were ab initio null and void inasmuch as the notice issued was defective and the petitioner, therefore, prayed that he should be allowed to drop the appeal.
The appeal against the order rejecting the petitioners application under section 27 of the Act came up for hearing before the Appellate Assistant Commissioner on 31st March, 1956, and by the order dated 31st July, 1956, the Appellate Assistant Commissioner held that the Income-tax Officer was not justified in rejecting the prayer for adjournment. He allowed the appeal and sent back the case to the Income-tax Officer to make fresh assessment in accordance with law. The prayer of the petitioner for withdrawing the appeal was rejected.
On the same date, that is, on 31st July, 1956, the other appeal filed against the ex parte assessment also came up for hearing and was struck oof as there was no assessment pending in view of the order of the Appellate Assistant Commissioner setting aside the ex parte assessment. Two appeals were preferred by the petitioner, one against the order rejecting the appeal against the exparte order of assessment and the other against the order allowing the appeal against the order rejecting the application under section 27, to the Income-tax Appellate Tribunal, Calcutta Bench. By an order dated 12th December, 1957, the two appeals were dismissed.
On the 9th November, 1959, two notices dated 5th November, 1959 - one under section 22(4) and the other under section 23(2) of the Act - issued by respondent No. 1 in respect of the assessment year 1946-47 were received by the petitioner. These two notices were issued as the Income-tax Officer proceeded to reassess the petitioner under the orders of the appellate authorities directing him to reassess the petitioner. In effect the Income-tax Officer re-started the proceedings initiated under section 34 by the notice dated 19th March, 1951.
On the 11th November, 1959, the petitioner filed an application before the Income-tax Officer, Nowgong, challenging the validity of the notice issued under section 34 dated the 19th March, 1951. According to the petitioner as the notice of the 19th March, 1951, was invalid and illegal, the notices issued on 5th November, 1959, were also illegal. The validity of the assessment proceedings before the Income-tax Officer was thus challenged.
The Income-tax Officer by his order dated 30th November, 1959, informed the petitioner that the notice under section 34 of the Act was valid and legal and further opportunity was given to the petitioner to produce books of accounts and evidence in support of the return filed on 14th December, 1959. Thereupon, the present petition under article 226 the Constitution was filed in this court on the 10th December, 1959, and the rule was issued on the aforesaid application.
The petitioner has prayed for a writ of prohibition directing the respondent No. 1 not to proceed with the assessment as the proceedings are without jurisdiction. In the petition a relief in the nature of mandamus is also claimed directing the respondent No. 1 to cancel, recall or otherwise forbear from giving effect to the notice dated 19th March, 1951, issued under section 34, the notices dated 5th November, 1959, issued under section 22(4) and section 23(2) and the order dated 30th November, 1959. A writ of certiorari was also claimed for quashing the notices mentioned above. In the present petition besides the Income-tax Officer, Nowgong, the Appellate Assistant Commissioner of Income-tax, Assam, Tripura and Manipur, Shillong, Commissioner of Income-tax and the Union of India have also been impleaded as respondents Nos. 2, 3 and 4 respectively.
Mr. Choudhuri has raised two preliminary points which may be disposed of before dealing with the merits of the petition. He has urged that the petition cannot proceed in the absence of the Income-tax Appellant Tribunal which passed the final orders on the 12th December, 1957; in effect the contention is that as the original order of assessment merged into the final order passed by the Income-tax Appellate Tribunal, unless the order of the Income-tax Appellate Tribunal was set aside, no relief could be granted to the petitioner.
It is also urged that the Income-tax Officer is proceeding in pursuance of the order of the Appellate Assistant Commissioner remanding the case and affirmed by the Income-tax Appellate Tribunal and unless that order is set aside this court will not issue mandamus to the Income-tax Officer not to do something which he has been directed by the Income-tax Appellate Tribunal to do. Secondly it was urged that no writ could be issued against the Union of India by this court. We do not think that there is any force in the preliminary points raised by the respondents counsel.
The petitioners contention is that the proceedings before the Income-tax Officer are without jurisdiction as the notice issued under section 34 which is a condition precedent for the starting of the assessment proceedings was invalid and therefore a writ of prohibition should be issued. For this relief it is not necessary for the petitioner to ask for the cancellation or quashing of the order passed by the Income-tax Appellate Tribunal and the only necessary party to whom the writ could go is the Income-tax Officer.
It can also not be said that the Income-tax Officer is bound to carry out the order of the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal and unless that order is set aside this court will not issue mandamus. The officer can only be compelled to carry out a legal order and if this court is of opinion that the proceeding are with out jurisdiction any order by the Income-tax Appellate Tribunal directing the Income-tax Officer to proceed with the assessment can be no bar to this court issuing a writ of prohibition. As to the second point the short answer is that the petitioner is asking for a writ of prohibition against the Income-tax Officer and no relief is claimed against the Union of India.
The petitioner contends that the notice issued under section 34 of the Act on the 19th March 1951, was an invalid notice as it did not give thirty days time to the petitioner to submits his return as requited under section 22(2) of the Act. The foundation for reassessment under section 34 is a valid notice under section 22(2) and the proceedings are invalid as no valid notice was given in this case. The present proceedings arise out of the notice issued on the 19th March, 1951, and thus are without jurisdiction.
Section 34 of the Act provides as follows :
"34.(1) If -
(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year income profits or gains chargeable to income-tax have escaped assessment for that year or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed or
(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year or have been under assessed or assessed at too low a rate or have been made the subject of excessive relief under this Act or that excessive loss or depreciation allowance has been computed,
he may in cases falling under clause (a) at any time and in cases falling under clause (b) at any time within four years of the end of that year serve on the assessee, or, if the assessee is a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section :
Provided that the Income-tax Officer shall not issue a notice under clause (a) of sub-section (1) -
(i) for any year prior to the year ending on the 31st day of March, 1941;
(ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income tax which have escaped assessment or have been under assessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which has been computed in excess, amount to, or are likely to amount to, one lakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after each of which eight years have elapsed, not being a year or years ending before the 31st day of March, 1941;
(iii) for any year, unless he has recorded his reasons for doing so and in any case falling under clause (ii) unless the Central Board of Revenue and in any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice :
Provided further that the Income-tax Officer shall not issue a notice under this sub-section for any year, after the expiry of two years from that year if the person on whom the assessment or reassessment is to be made in pursuance of the notice is a person deemed to be the agent of a non-resident person under section 43 :
Provided further that the tax shall be chargeable at the rate at which it would have been charged had the income, profits or gains not escaped assessment or full assessment, as the case may be.
Explanation. - Production before the Income-tax Officer of account books or other evidence from which material facts could with due diligence have been discovered by the Income-tax Officer will not necessarily amount to disclosure within the meaning of this section..."
The remaining portion of the section is not relevant for the purpose of the present case. Section 22(2) reads as follows :
In the case of any person whose total income is in the Income-tax Officers opinion of such an amount as to render such person liable to income-tax the Income-tax Officer may serve a notice upon him requiring him or furnish within such period not being less than thirty 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 :
Provided that the Income-tax Officer may in his discretion extend the date for the delivery of the return."
The notice issued on the 19th March, 1951, is annexure "B" to the petition and the relevant contents of the notice were as follows :
Whereas I have reason to believe that your income assessable to income-tax for the year ending 31st March, 1947, has.......(b) been under assessed...... I therefore propose to re-assess that.
I hereby require you to deliver to me not later than March 31, 1951, a return in the prescribed form of your total income and total world income assessable for the said year ending 31st March, 1947 (Income of 2202 R.N.)."
The return was filed on the 24th April, 1951, by the petitioner under protest. Section 34 deals with two classes of escaped assessment. Clause (a) of section 34 deals with the escaped assessment due to the omission or failure on the part of an assessee to make a return of his income and clause (b) deals with escaped assessment which in consequence of information in the possession of the Income-tax Officer is discovered.
In the present case the notice was issued under clause (b). After the Income-tax Officer is satisfied that the income has escaped assessment due to any of the two causes, he has 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. The jurisdiction upon the Income-tax Officer to proceed to assess or reassess the income is conferred only after the notice has been served. The requirements of section 22(2) have thus been incorporated in section 34 by reference to section 22(2).
The language of section 34 no doubt provides that the notice issued under the said section need not contain all the requirements mentioned in section 22(2). The question which thus arises is what are the requirements mentioned in section 22(2). Section 22(2) requires a notice to be served on the person requiring him to furnish within such period not less than thirty days 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 his total world income during the previous year.
Mr. Ghose for the petitioner contends that it is open to the Income-tax Officer to mention all or any of the requirements of section 22(2), but in the notice a period of not less than thirty days is to be given for complying with the requirements mentioned in the notice. There is no discretion in the Income-tax Officer issuing the notice to fix any period not less than thirty days for compliance with the requirements of section 22(2). If the notice gives a period less than thirty days, the requirement of section 22(2) has not been complied with and the notice thus was an invalid notice.
Mr. Choudhuri for the respondents on the other hand contends that the condition precedent for the assumption of jurisdiction under section 34 is the satisfaction of the Income-tax Officer that the income has escaped assessment. The requirement of notice is only procedural and if it has been substantially complied with as in the present case, where although the notice did not give him time of thirty days still in fact he filed his return after the expiry of thirty days, the proceeding of reassessment cannot be said to be without jurisdiction.
The authorities cited by the parties may be examined. The petitioners counsel referred to the case of Commissioner of Income-tax v. Ramsukh Motilal. The matter came up before the Bombay High Court on a reference under section 66 of the Act. The assessment was completed for the assessment year 1944-45 in 1948. The Income-tax Officer thereafter being satisfied that some income had escaped assessment issued a notice under section 34 on March 19, 1949. By the notice the assessee was required to make a return by March 25, 1949.
The return was filed by the assessee and he was assessed by the Income-tax Officer. The appeal was filed to the Assistant Commissioner before whom the point was raised that the notice issued under section 34 was invalid as it did not give thirty days time to the assessee to file his return. The contention of the assessee was upheld by the Appellate Tribunal against which a reference was made by the department. It was held by Chagla C.J. that the Income-tax Officer could proceed to assess or reassess escaped income after a notice provided in sub-section (2) of section 22 is given and unless such a notice is given the Income tax officer could not proceed with the assessment.
If an invalid notice is given it is no notice in the eye of law and the proceedings before the Income-tax Officer on such notice will be without jurisdiction. It was also held in this case that there could be no waiver of an invalid notice. I shall have to refer to this case when I deal with the question of waiver. This case, however, clearly lays down that the issue of a valid notice is a condition precedent for the exercise of the jurisdiction by the Income-tax Officer to assess in respect of an escaped income.
The next case is R.K. Das & Co. v. Commissioner of Income-tax. In this case Chakravartti C.J. also held agreeing with the Bombay view that the issue of a valid notice was a condition precedent for the exercise of jurisdiction by the Income-tax Officer under section 34. The following observations at page 163 of the report may be quoted :
Where the time for making an assessment in the normal way has expired or certain omissions have occurred by reason of which no assessment has taken place or an under-assessment has occurred and the statute requires that in such circumstances the Income tax Officer can assume jurisdiction and commence fresh proceedings only upon and after giving a certain notice of a certain kind, he cannot, in my view make a valid assessment at all unless he issues the prescribed notice and issues it in a valid form.
If he has issued any invalid notice and that notice has brought in a return, he cannot then shake off his own irregularity and seize the return and proceed to make an assessment on it in contravention of law and to the disadvantage of the assessee."
The above two cases have been held to lay down good law by their Lordship of the Supreme Court in the case of Narayana Chetty v. Income-tax Officer, Nellore. In this case the matter came up before their Lordship of the Supreme Court in appeal from an order of the Madras High Court rejecting petitions filed by the assessees under article 226 of the Constitution. Briefly the facts giving rise to this appeal were that the assessee was reassessed under section 34 of the Act. The notice under section 34 in this case was served on the firm and the point raised in appeal before the Supreme Court was that the notice should have been issued to the partners. The notice thus issued under section 34 was an invalid notice and the assessment as a consequence of the aforesaid notice was invalid in law. The following observation at page 215 is apposite :
The first point raised by Mr. Sastri is that the proceedings taken by respondent No. 1 under section 34 of the Act are invalid because the notice required to be issued under the said section has not been against the assessee contemplated therein.... 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 and 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 no notice is issued or if the notice issued is shown to be invalid then the validity of the proceedings taken by the Income-tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. That is the view taken by the Bombay and Calcutta High Courts...... and we think that that view is right
Their Lordships then proceeded to consider whether the notice in that case could be said to have been invalid and the contention of the appellant on this behalf was not accepted. This case however clearly approves the view taken by the Bombay High Court and the Calcutta High Court in the cases to which I have already referred and lays down that the issue of a valid notice is a condition precedent for the exercise of the jurisdiction by the Income-tax Officer under section 34. In view of this decision it cannot be argued that the requirement of a valid notice is only a procedural requirement and that it is not a foundation for the exercise of jurisdiction for reassessment.
Mr. Choudhuri drew our attention to the case of Maharaj Kumar Kamal Singh v. Commissioner of Income-tax. He refers to the following passage at page 260 of the report :
"It is clear that two conditions must be satisfied before the Income-tax Officer can Act under section 34(1)(b). He must have information in his possession which in the context means that the relevant information must have come into his possession subsequent to the making of the assessment order in question and this information must lead to his belief that income chargeable to income-tax has escaped assessment for any year or that it had been under assessed or assessed at too low a rate....."
From these observations it is argued that the only conditions precedent for the exercise of power under section 34 are the two conditions mentioned above and the issue of a valid notice thus cannot be regarded as a condition precedent for the exercise of jurisdiction under section 34. This case, to my mind, does not in any way support the contention of the department. The only question for determination in this case was whether a certain decision of the Privy Council given later could be regarded as an information in possession of the Income-tax Officer so as to give him jurisdiction to issue a notice under section 34.
As has been pointed out in the cases cited by the counsel for the petitioner if there is information in possession of the Income tax Officer and he is satisfied that the income has escaped assessment, he gets jurisdiction to Act under section 34 and to issue a notice as provided for under section 22(2). But the power of the Income-tax Officer to reasses is founded upon the issue of a valid notice under section 22(2) and any assessment made by the Income-tax Officer on an invalid notice will be void.
It was also urged that the absence of notice may render the proceedings of assessment invalid but in cases where the notice has in fact been issued and the notice complied substantially with the requirements of section 22(2), it cannot be said to be said to be an invalid notice. The argument advanced by Mr. Joshi in the Bombay case referred to above, Commissioner of Income-tax, v. Ramsukh Motilal, was that :
".. it was not a case where notice has not been given. A notice has been given but the notice may not be exactly in accordance with law."
This contention was repelled and it was observed by Chagla C.J. that :
"... if a notice is not given as provided by section 34, then in the eye of the law it is no notice at all and clearly the Income tax Officer proceeded to assess the assessee under section 34 without complying with the condition precedent laid down in section 34 which alone could have given him jurisdiction to assess the assessee."
I am in complete agreement with the above observations. The period given in the notice being shorter than thirty days the notice did not comply with the requirement of section 22(2) and it was invalid. The proceedings before the Income-tax Officer were thus invalid.
The next contention raised by Mr. Choudhuri is that even though the notice was defective, it was waived by the assessee. In this connection two questions arise for determination; firstly whether there could be a waiver in respect of a notice which is a condition precedent for the exercise of jurisdiction to assess under section 34 and secondly, if the facts pointed out by the department establish the case of a waiver.
As pointed out in the case of Basheshar Nath v. Commissioner of Income-tax at page 172 :
The generally accepted connotation is that to constitute waiver there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of a relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right; estoppel is a rule of evidence.
In this connection the case of Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish may be referred to. Though the Supreme Court in the case referred to above dealt with the question of relinquishment of the fundamental right guaranteed under article 14 of the Constitution, the observations referred to above by S.K. Das. J. are apposite. Another passage which may be usefully referred to is the following passage at page 180 which summarises the American law relating to the waiver of a fundamental right :
It has been stated supra (page 1050, note 32) that the doctrine of waiver extends to rights and privileges of any character and since the word waiver covers every conceivable right it is the general rule that a person may waive any matter which affects his property and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract or conferred by statute or guaranteed by Constitution, provided such rights and privilege rest in the individual are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy, and the principle is recognised that every one has a right to waive and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large...
As a general rule, rights relating to procedure and remedy are subject to waiver, but if a right is so fundamental in its nature as to be regarded by the State as vitally integrated in immemorially established processes of the administration of justice, it cannot be waived by any one."
It is difficult to hold that there was any right in the assessee which he could have intentionally relinquished or he can be said to have abandoned. The existence of a valid notice is a condition precedent for the exercise of the jurisdiction by the Income-tax Officer to assess or reassess. It does not confer any right on the assess which he could abandon. The want of notice affects the jurisdiction of the Income-tax Officer to proceed with the assessment and thus affects the proceedings for the assessment and does not in any manner affect the right of the assessee which he could validly abandon. There is another aspect of the matter which may be considered. The right of the assessee to be assessed or not to be assessed arises only after the valid proceedings have been taken and the issue of a valid notice is a condition precedent. It has to come into effect prior to the starting of the proceedings. There could therefore be no question of the assessee waiving any right accruing to him.
Before dealing with the authorities cited at the bar it will be convenient to dispose of the second question which arises in this connection namely whether it can be said that on the facts disclosed there was a sufficient foundation laid for applying the doctrine of waiver in the present case. It is stated by the counsel for the department that when the letter dated April 24, 1951, was written by the assessee along with the return filed no point was taken with regard to the invalidity of the proceedings on the ground of want of proper notice.
This letter is annexure "C" to the petition and it is stated in it that the requisition to submit the said return is illegal and time barred. In view however of the reminders the assessee was enclosing a return in compliance with the notice. It was pointed out in this letter that in the notice no information was given to the assessee as to why the proceedings had been started under section 34 but from the correspondence the assessee was able to understand that the same is in respect of high denomination notes encashed in January, 1946.
The assessee has tried to give his explanation about the high denomination notes. Towards the close of the letter however it is specifically mentioned that this return is submitted under protest and without prejudice to the assessees contentions. This letter clearly points out that at no stage the assessee can be said to have contracted to abandon its right nor can it be said that the assessee willingly participated in the proceedings consequent on the notice of March 19, 1951. By merely filing a return under protest it cannot be said that the assessee waived his right.
When the assessment was made the assessee was right in applying for the revision of the assessment under section 27 and his failure to specifically take this point in that application also cannot constitute a waive of his right. Two appeals were filed before the Appellate Assistant Commissioner by the assessee one against the order of assessment and the other against the order rejecting the application of the assessee under section 27. The appeals were filed sometime in 1953. The appeals remained pending for a long time and they were disposed of by the Appellate Assistant Commissioner on July 31, 1956.
Before that on July 26, 1956, the petitioner had pointed out that in view of the decision of the Bombay High Court the assessee felt that the proceedings were without jurisdiction and as such it did not intend to proceed with the appeal. The Appellate Assistant Commissioner did not accept the prayer of the assessee and disposed of the appeal against the order rejecting the assessees petition under section 27 on merits and remanded the case for reassessment. Further appeals to the Appellate Tribunal were also rejected. It cannot be said therefore that at any stage the petitioner willingly abandoned his right and participated in the proceedings for assessment.
There is no other material placed before us by the counsel for the department from which it could be inferred that there was a waiver by the petitioner of his right. To adopt the language of S.K. Das J. in the Supreme Court decision referred to above in Basheshar Nath v. Commissioner of Income-tax, at page 172, it would be going too far to hold that every unsuspecting submission to a law subsequently declared to be invalid must give rise to a plea of waiver. It need not be emphasised that even the consent does not confer any jurisdiction on a court which has otherwise no jurisdiction.
The counsel for the respondents has relied upon the Privy Council case of Ledgard v. Bull. Particular reference was made to the following passage at page 145 :
When the judge has no inherent jurisdiction over the subject matter of a suit the parties cannot by their mutual consent convert it into a proper judicial process, although they may constitute the judge their arbiter and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when in a cause which the judge is competent to try, the parties without objection join issue and go to trial upon the merits the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure which if objected to at the time would have led to the dismissal of the suit. The present case does not come strictly within these authorities..."
In this case the suit though under the Patent Act could be filed before the District Judge was filed before the Subordinate Judge. The District Judge by his order transferred the case to his file and the question which arose for consideration was whether the District Judge could validly proceed with the suit which has been transferred to his court although it was originally filed before a court without jurisdiction and it could only be filed initially in his court. Their Lordships of the Privy Council held that there could be no waiver in the matter of jurisdiction.
This case therefore supports the contention of the petitioner. Mr. Choudhuri has referred top this case and has sought to apply it to the facts of the present case on the ground that the invalidity of notice is not the condition precedent for initiation of the proceedings under section 34. I have already dealt with this aspect of the argument and have come to the conclusion that the existence of a valid notice is a condition precedent for the exercise of the powers of assessment and in this view of the matter this case is of no assistance to the counsel for the respondents.
The next case referred to is the case of Balakrishnayya v. Linga Rao. It was held in this case interpreting section 39 of the Code of Civil Procedure as follows :
The true effect of section 39 is to recognise the transferee court as having inherent jurisdiction to sell or deliver properties situate within its territorial limits, but only that the jurisdiction is to be invoked by the machinery provided by the section. Therefore, the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction by the court when proceedings for execution of the final mortgage decree are commenced in it and, therefore, when objection to the defect of jurisdiction is not taken in the first instance, the judgment-debtor must be deemed to have waived it."
In this case reference was made to the Privy Council decision reported in Ledgard v. Bull to which I have already alluded. The following observation of Mookerjee J. in the case of Gurdeo Singh v. Chandrikah Singh was quoted :
A court cannot adjudicate upon a subject matter which does not fall which in its province as defined or limited by law; this jurisdiction may be regarded to be essential, for jurisdiction over the subject matter is a condition precedent to the acquisition of authority over the parties, and, if a court has no jurisdiction over the subject matter of the controversy consent of the parties cannot confer such jurisdiction and a judgment made without jurisdiction in such a case is absolutely null and void; it may be set aside by review or appeal, or its nullity may be established when it is sought to be relied upon in some other proceeding...........
An entirely different class of questions, however, arises, when it is suggested that a court in the exercise of the jurisdiction which it possesses, has not acted according to the mode prescribed by the statute. If such a question is raised, it relates obviously, not to the existence of jurisdiction, but to the exercise of it in an irregular or illegal manner. This distinction between elements, which are essential for the foundation of jurisdiction and the mode in which such jurisdiction has to be assumed and exercised, is of fundamental importance, but has not always been sufficiently recognised."
This decision was based on the finding that the transferee court has inherent jurisdiction to execute the decree in respect of the properties within his jurisdiction and the order of transfer is only a procedural matter and thus it could be waived. This case was approved by their Lordships of the Supreme Court in the case of Ramanna v. Nallapparaju. At page 93 of the report referring to the Madras case, Balakrishnayya v. Linga Rao it was stated as follows :
"It was held therein that the court to whose jurisdiction the subject matter of there decree is transferred acquires inherent jurisdiction over the same by reason of such transfer and that if it entertains an execution application with reference thereto it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity it must be deemed to have been waived and cannot be raised at any later stage of the proceedings. That precisely is the position here."
The next case referred to is Chatturam v. Commissioner of Income-tax. In this case a certain notification was issued by the Governor of Bihar on 26th May, 1940, retrospectively applying the provisions of the Income-tax Act to a certain division known as Chotanagpur Division which was a partially excluded area and a notice had been issued under section 22(2) prior to the date when this notification was issued. The assessment was challenged on various grounds and one of the grounds taken was that the notice was bad inasmuch as it was issued before the notification came into force and the assessee could not be assessed under the provisions of the notification.
Dealing with the arguments, it was held by Mr. Justice Kania that the issue or receipt of a notice is not the foundation of the jurisdiction of the Income-tax Officer to make the assessment or of the liability of the assessee to pay the tax and further that the jurisdiction to assess and the liability to pay the tax are not conditional on the validity of the notice. He further pointed out that the liability of a citizen to pay tax arises under the charging section of the statute. The assessment is merely procedural to determine the quantum of the tax and that the provisions with regard to notice are procedural provisions.
The defect in the notice being a procedural defect it could always be waived by the assessee. There is a distinction between a notice issued under section 22(2) and a notice issued under section 34. A notice issued under section 22(2) is not a condition precedent for the exercise of the power of assessment while a notice under section 34 is a condition precedent for the exercise of jurisdiction. this case therefore does not apply to the facts of the present case.
In an earlier Bombay case, Commissioner of Income-tax v. Ekbal & Co., to which Mr. Justice Kania was a party it was held by the Bombay High Court that a notice given under section 22(2) did not comply with the provision of that section because the notice was short. The notice was held to be bad and the assessee had made a return in compliance with that notice. He had taken no objection before the Income-tax Officer to his being assessed but the court held that the notice being illegal that fact that the assessee submitted a return later or that it was accepted for the purpose of making the assessment did not cure the defect that initially lay in the notice.
In the case of Commissioner of Income-tax v. Ramsukh Motilal, Chagla C.J. held that no consent can confer jurisdiction upon a court if the court has to jurisdiction and on the view that the Income-tax Officer can have jurisdiction only provided he complies with the conditions laid down under section 34, no consent by the assessee could give him a jurisdiction or no waiver on his part could confer such jurisdiction. In the case of Commissioner of Agricultural Income-tax v. Sultan Ali Gharami, although on facts it was held that there was no waiver, the facts were examined to find out whether there could be a waiver. It is argued by Mr. Choudhuri that by implication this case held that the doctrine of waiver was available to the department in cases where the defective notice was given. I am however inclined to agree with the view taken by Mr. Chagla C.J. In the case of Commissioner of Agricultural Income-tax v. Sultan Ali Gharami, also it was observed as follows :
"It is true that there can be a waiver as to the machinery of taxation which inures against the subject as was held in the case of Attorney General v. Aramayo, but I do not think that on the facts of the present case it can be said that there was a waiver. The return was not submitted voluntarily as in the case of Harakchand Makanji and Co. v. Commissioner of Income-tax, but in compliance with a notice under section 24(2), as in the case of Maharaja of Patiala v. Commissioner of Income-tax. It was submitted under compulsion in response to a notice which contained various threats. Nor can it be correct in the case of a person like the present assessee to attribute to him knowledge of the right that he was relinquishing. Again by the return that he submitted the assessee did not offer to be assessed but claimed on the other hand that he was not liable to assessment since he showed an income below the assessable limit. There is also the fact that there was no waiver of anything before the Income-tax Officer issued the notice under section 24(2) and nothing had been done by the assessee up to and at that point of time which provided jurisdiction to the Income-tax Officer to commence assessment proceedings without issuing a notice under section 38 which was imperative and had not been waived."
The counsel for the department refers to the case of Jitan Ram Nirmal Ram v. Commissioner of Income-tax. Particular reference is made to the following passage at page 165 :
"Even if we assume for a moment that the notice under section 34 is defective it is impossible in my opinion to hold that the proceedings are illegal or that excess assessment made is null and void. It is of importance to state that section 34, though a part of the Act, imposes no charge on the subject and it is merely part of the machinery of the assessment. The liability to pay the tax is founded on sections 3 and 4 of the Income-tax Act, which are the charging sections. The jurisdiction to assess or the liability to pay tax cannot on principle depend on the validity of the notice. I do not think it is necessary in all cases in order to enable the income-tax department to receive the money that there should be an assessment actually served of that sum which is ultimately paid."
In this case the main question raised was that the Income-tax Officer could not have discovered on the date of the notice that the income of the applicant had escaped assessment for the years in question as till then the final order of the Commissioner of Income-tax with respect to calculation of profits of the applicant had not been made. This contention was repelled. The observations referred to above are no doubt very broadly put. But in view of the decision of the Supreme Court to which I have already referred, I respectfully beg to differ from the view taken in the Patna case.
Mr. Choudhuri strongly relies upon the decision of this court in Paresh Chandra Paul v. Commissioner of Taxes. This case was under the Assam Sales Tax Act. The provisions of the Assam Sales Tax Act are pari materia. The petitioner, Paresh Chandra Paul was liable to payment of tax under the Act from the 1st February, 1948. The petitioner did not apply for registration as required by section 9 of the Act. Notice was therefore issued to him by the Superintendent of Taxes to get himself registered as a dealer. An application was then filed on the 31st March, 1952, for registration wherein he gave out his gross turnover for twelve months ending 1947-48.
On April 17, 1952, he was duly registered but no return was submitted by him as required by section 16(1) of the Act. He was then served with a notice under section 17(4) of the Act calling upon the petitioner to submit his return for the periods ending on 30th September, 1949, to 31st March, 1952. the Superintendent of Taxes not having been satisfied with the return filed by the petitioner, issued notice on the petitioner under section 17(2) of the Act for production of evidence and then made an assessment under section 17(3). These assessments were challenged. The matter came up on reference to the High Court. The question referred to the High Court was in the following terms :
"Whether on the facts and circumstances of the case there has been sufficient compliance with the provisions of sections 19 and 19A of the Act; and if not whether the assessments in question are void ?"
Section 19 is in similar terms as section 34 of the Income-tax Act and the contention raised in this case was that as no notice was issued under section 19 or 19A, the Superintendent of Taxes has no jurisdiction to assess the petitioner. Two points were urged on behalf of the department. Firstly, it was argued that the jurisdiction to assess does not necessarily depend upon the validity of the notice issued under a particular section and even if there was some defect in the notice the jurisdiction of the officer to assess would not be necessarily affected. It was thus urged by the counsel for the department that these procedural sections should be so construed as to make the working of the Act effective.
If, therefore the circumstances mentioned in the section which would confer jurisdiction on the Sales Tax officer to assess do exist the jurisdiction will not be lost merely because of some irregularity in the procedure adopted by the officer in making the assessment. Secondly, it was contended that there was substantial compliance in the present case because a notice in effect had been given to the assessee to file the returns though labeled as a notice under section 17(4) of the Act, and the assessee in pursuance thereof had filed his returns for the periods in question without any protest whatsoever. Both these contentions raised on behalf of the department were accepted. It was observed as follows :
"If jurisdiction to Act exists under the law, the jurisdiction will not be affected merely because the officer under some misconception of the law adopted a procedure which was somewhat irregular but did not even prejudicially affect the assessee.
Of course in a taxing statute the tax has to be realised in accordance with the terms of the statute but unless any particular procedure adopted by the officer is wholly without the authority of the law, the assessment proceeding will not be vitiated merely because of some irregularity in the procedure."
It does not appear from the report as to what was the defect in the notice which was actually issued in this case under section 17(4). The case is mainly based on the assumption that there was a notice under section 19A though it was labeled as a notice under section 17(4). It was, therefore, not a case where there was no notice or that the notice was invalid in the eye of law. If the notice under section 34 complies with all the requirements of section 22(2) and if the other conditions necessary for exercise of powers under section 34 exist, merely if some wrong section is quoted it will not render the notice either invalid or in the eye of law non-existent.
There are, however, certain observations in this case which go to show that the issue of a notice is only procedural and is not a condition precedent for the exercise of power under section 19. But these observations must be taken to have been overruled by the express decision of the Supreme Court in Narayana Chetty v. Income-tax Officer, Nellore, which I have referred to above. The next passage relied upon by Mr. Choudhuri occurring at page 108 of Paresh Chandra Paul v. Commissioner of Taxes is as follows :
"While I respectfully agree that the initiation of proceedings under section 34 was a condition precedent to the assumption of jurisdiction by the Income-tax Officer to assess where an income has escaped assessment in any particular year, I find it difficult to accept the broad proposition that in case of this kind there could be waive or acquiescence on the part of the assessee so as to confer jurisdiction upon the Income-tax Officer to proceed to assess.
A procedural provision, which is meant for the benefit of the assessee can in some circumstances be waived. If the officer of his own accord proceeds to assess on the ground that some income or turnover has escaped assessment after the expiry of the due date under which he should have taken steps to proceed in the normal course under the general provisions of the law for the purpose of making an assessment, he must comply with the provisions of section 34, under the income-tax law or for that matter under section 19A of the present Act.
The conditions mentioned in the section must exist to enable the officer to take action. But, where there is some irregularity in the form of the notice issued on the assessee that irregularity could be waived by the assessee in submitting his return showing an assessable income and otherwise taking part in the proceedings without any protest as to the form of the notice.
In such a case the jurisdiction of the officer will not be ousted. But, if the assessee refuses to submit any return or submits a return showing a non-assessable outturn and does not otherwise take part in the proceedings the officer will have no jurisdiction to assess him or to proceed to deal with him under the other penal sections of the Act."
With great respect I am of opinion that these observations are very wide and have got to be read in the context of the facts of that case. The existence of a valid notice is as much a condition precedent for the exercise of the jurisdiction to assess under section 34 as the existence of the other condition namely the satisfaction of the Income-tax Officer on information that the income has escaped assessment. The issue of a notice is not a mere procedural requirement.
But apart from that even in this case it is clearly laid down that the assessee can be said to have waived his right only if he submits his return and otherwise takes part in the proceedings without any protest as to the form of the notice. In the present case the return was filed under a protest. The point was taken in appeal that the proceedings were without jurisdiction as there was no valid notice and thus it cannot be said that there are facts which would constitute waiver in the present case. In my opinion there is no substance in the contention raised by the counsel for the department on this behalf.
There could neither be a waiver in respect of a condition precedent to the exercise of the jurisdiction nor the facts before us make out a case of waiver. Mr. Choudhuri also contends that the petitioner is not entitled to any relief under article 226 of the Constitution as he has an alternative remedy available to him. If the assessment is without jurisdiction he can file an appeal against the assessment order in due course. In matters relating to tax, ordinarily the remedies provided under the Act should be exhausted.
Secondly, it is contended that the petitioner is guilty of laches and acquiescence. At the earliest opportunity before the Income-tax Officer when the first assessment had been made, the petitioner raised no objection to the jurisdiction of the Income-tax Officer to proceed with the assessment. It was in 1956 when the limitation to take proceedings under section 34 might have expired that the petitioner raised the question for the first time about the invalidity of the proceedings.
Even assuming that he has a right to raise the point at this stage he should have come to this court after the ex parte assessment had been made in 1952 for a writ of certiorari quashing the order of assessment on the ground that the assessment was without jurisdiction. The delay in coming to this court disentitles him to a relief under article 226 of the Constitution. I do think there is much substance in this contention. The existence of an alternative remedy is not an absolute bar to grant a relief by this court under article 226 of the Constitution. If the defect of jurisdiction is apparent on the face of the record, i.e., patent, this court will not refuse relief to the petitioner even on the ground of acquiescence.
In cases where the defect of jurisdiction is latent namely it can be discovered after enquiry the ground of laches and misconduct may be a valid ground to refuse the relief of prohibition. In the present case as I have already held the proceedings were on the face of it without jurisdiction inasmuch as no valid notice which is a condition precedent for the exercise of jurisdiction was given. The defect of jurisdiction therefore appears on the face of the proceedings and there is no ground for refusal to grant any such relief.
In the case of Burder v. Veley Lord Denman C.J. said :
"The cases seem to establish and consistency of reasoning requires that the power of prohibition is in no case taken away by the privilege of appeal. If called upon, we are bound to issue our writ of prohibition, as soon as we are duly informed that any court of inferior jurisdiction has committed such a fault as to found our authority to prohibit, although there may be a possibility of correcting it by appeal. For there is no reason for driving the subject to that expensive process, to abide the chance of a repetition of the error.."
This principle has been reaffirmed by Lord Goddard in the case of R. v. Comptroller General of Patents.
At page 865 he observed as follows :
"Objection to jurisdiction can always be taken by plea and if an appeal lies from the court or tribunal in which such a plea is raised the appellate court could, no doubt, decide the question of jurisdiction but it by no means follows that because there is an appeal the power of this court to issue a prohibition is taken away. There is no technical obstacle to the co-existence of a right to appeal and to a prohibition."
In the case of Farquharson v. Morgan it was held by Lord Halsbury that it has been long settled that where an objection to the jurisdiction of an inferior court appears on the face of the proceedings it is immaterial by what means and by whom the court is informed of such objection. The court must protect the prerogative of the crown and the due course of the administration of justice by prohibiting the inferior court from proceeding in matters as to which it is apparent that it has no jurisdiction. The objection to the jurisdiction does not in such a case depend on some matter of fact as to which the inferior court may have been deceived or misled or which it may have unconsciously neglected to observe and the judge of such court therefore must or ought to have known that he was acting beyond his jurisdiction. Lopes L. J. also observed as follows :
It seems to me that there has always been recognised a distinction between what I will call a latent want of jurisdiction, i.e. something becoming manifest in the courts of the proceedings and what I will call a patent want of jurisdiction, i.e., a want of jurisdiction apparent on the face of the proceedings. Whilst in cases of latent want of jurisdiction there has always been a great conflict or judicial opinion as to whether the grant of the writ was discretionary or not the authorities seem unanimous in deciding that where the want of jurisdiction is patent the grant of the writ of prohibition is of course."
In the case of Mayor of London v. Cox, at page 279 Wills J., giving his opinion to the House of Lords, observed that :
".... upon an application being made in proper time, upon sufficient materials, by a party who has not by misconduct or laches lost his right, its grant or refusal is not in the mere discretion of the court."
He further observed that :
Where, however the defect is not apparent and depends upon some fact in the knowledge of the applicant which he had an opportunity of bringing forward in the court below, and he has thought proper, without excuse, to allow that court to proceed to judgment without setting up the objection, and without moving for a prohibition in the first instance, although it should seem that the jurisdiction to grant a prohibition in respect of the right of the Crown is not taken away, for mere acquiescence does not give jurisdiction.. yet, considering the conduct of the applicant, the importance of making an end of litigation, and that the writ, though of right, is not of course, the court would decline to interpose, except perhaps upon an irresistible case, and an excuse for the delay, such as disability, malpractice, or matter newly come to the knowledge of the applicant."
In the case of S.C. Prashar v. Vasantsen Dwarkadas, Desai J., whose judgment was affirmed by Chagla C.J. and Tendolkar J., has set out principle measure and scope of exercise of jurisdiction by the High Court in granting a writ of prohibition in the following terms :
"(i) The High Court has always the power and the discretion to grant or refuse to grant this writ which though it is primarily intended for enforcement of fundamental rights must also issue where necessity demands immediate and decisive interposition.
(ii) The considerations that arise when this writ is asked for on the ground that any inferior court or person or body of persons having legal authority is committing or has committed an error of law apparent on the face of its proceedings and those that arise in a case of excess or usurpation of jurisdiction by any such court or authority must necessarily be differentiated for in the former case there is an erroneous exercise of jurisdiction which exists while in the latter case there is no jurisdiction at all.
(iii) Absence of jurisdiction may be patent that is apparent on the face of the proceedings, or latent in the sense that it is not so apparent. Where the defect is not apparent the court in its discretion may refuse the writ if the facts or circumstances attending the case show undue delay, insufficient materials, misconduct, laches or acquiescence on the part of the party applying for it or are such as would render it unjust on the part of the court to interpose.
(iv) Where, however there is patent lack of jurisdiction and the court is immediately satisfied that the inferior court or authority has exceeded its jurisdiction, the court will very readily interpose. The discretion to grant or refuse to grant the writ is of course there. But since discretion contemplates an exercise of arbitrium and not arbitrariness, the writ must go though not of right nor of course yet almost as a matter of course unless an irresistible case for withholding the writ is made out."
This, in my opinion, correctly sets out broadly conditions under which a writ of prohibition can be granted. In the present case it is also significant to note that the proceedings of assessment are still continuing though in view of the order of remand and the petitioner took the objection before the Appellate Assistant Commissioner and the Appellate Tribunal about the invalidity of the notice when the matter was before them on appeal from the order of the ex parte assessment. The petitioner has applied for permission to withdraw the appeal as according to him, the assessment was without jurisdiction.
The prayer was refused by the Appellate Assistant Commissioner further dealing with the merits of the points the Appellate Assistant Commissioner observed that the point was never taken before and it could not therefore be allowed to be raised at that stage. It was further held by the Appellate Assistant Commissioner that the appeal was against the order rejecting the application of the petitioner under section 27 of the Act and in that appeal the validity of the notice could not be considered. the appeal was however allowed and the case was sent back to the Income-tax Officer for reassessment.
In the appeal against the order of assessment the Appellate Assistant Commissioner held that as the assessment had already been set aside in appeal under section 27 of the Act and the Income-tax Officer had been directed to make a fresh assessment in accordance with the law the contention as regards the merits of assessment and invalidity of the proceedings did not arise in that appeal. The appeal was therefore struck off. In the two appeals filed against the two orders before the Appellate Tribunal similar view was taken by the Tribunal also.
The petitioner was thus pursuing his remedy under the Act and having failed to persuade the proper authorities to go into the matter of the invalidity of the proceedings had no other alternative but to approach this court when the matter went back again to the Income-tax Officer. The final order was passed by the Appellate Tribunal on November 30, 1959. In view of these proceedings, it cannot be said that the petitioner is guilty of laches or acquiescence by which article 226 of the Constitution.
In the result, therefore, the proceedings before the Income-tax Officer, in my opinion, are without jurisdiction and the petitioner is entitled to a writ of prohibition, directing the opposite party, the Income-tax Officer, not to proceed with the reassessment in pursuance of the notice dated March 19, 1951. We make no orders as to costs.
C.P. SINHA C.J. - I agree.
DEKA J. - I agree.