JUDGMENT
Divan, J.
1. This reference arises out of a notice served on the assessee under section 34 of the Indian Income-tax Act, 1922. The relevant assessment year was 1949-50 and the previous year for the purposes of assessment was S. Y. 2004, ending with November 1, 1948. Long prior to the issue of the notice under section 34, assessment for the year 1949-50 had been completed under section 23 of the Indian Income-tax Act, 1922 (hereinafter referred to as the Act); and thereafter on February 28, 1958, notice under section 34 of the Act was issued upon the assessee. The notice proceeded as follows :
“Whereas I have reason to believe that your income assessable to Income-tax for the year ending 31st of March, 1949, has :
(a) escaped assessment,
(b) been under-assessed.
I hereby require you to deliver to me not letter 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 word income assessable for the said your ending 31st, of March, 1949.”
2. 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 the 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.
3. 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 and 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 covering letter. However, on November 19, 1958, the assessee dressed another letter to Income-tax Officer and in this letter of 19th November, the assessee pointed out that in the notice under section 34, the assessment year mentioned was 1948-49 and the letter proceeds :
“The notice is issued on February 28, 1958, and served on the same day. But as the return attached to the notice under section 22(2) read with section 34 of the Act was for 1949-50, the same has been duly filled in and submitted on 15th instant.”
4. In this letter of November 19, 1958, the assessee contended that the notice under section 34 was clearly time-barred. The contention was urged before the Income-tax Officer that the notice under section 34 was bad as it was time-barred so far as the assessment year 1948-49 was concerned; the Income-tax Officer, however, completed the assessment for the assessment year 1949-50. There was an appeal to the Appellate Assistant Commissioner and before him also it was urged that the notice under section 34 was invalid and was time-barred. The Appellate Assistant Commissioner held that the notice under section 34 was invalid as on the face of it the notice under section 34 was for the assessment 1948-49 and was invalid for the assessment year 1949-50 and as the invalidity was no waived by the assessee, the assessment made on the basis of the said notice was illegal and bad in law. He, therefore, set aside the assessment order and annulled the assessment. Against the decision of the Appellate Assistant Commissioner, the department appealed to the Income-tax Appellate Tribunal and the Tribunal up held the contention of the department and came to the conclusion that the conclusion of the Appellate Assistant Commissioner was wrong and the Tribunal restored the appeal to the file of the Appellate Assistant Commissioner for disposal according to law. Thereafter, under section 66(2) of the Act, the following question has been referred to this High Court by the Tribunal :
“Whether, on the facts and in the circumstances of the case, there was material irregularity in the notice issued to the assessee under section 34, dated 28th February, 1958; and if so, whether such irregularity vitiated the proceedings taken under the said notice ?”
5. In this connection, Mr. Kaji, on behalf of the assessee, has relied on a decision of this High Court in Nayalchand Mulukchand 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 dated 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 correct assessment year for which the assessment was sought to be reopened. On these facts the question arose before the Division Bench of this High Court whether the notice under section 34 was a valid notice; and on the facts and in the circumstances of that case it was held by the Division Bench that the notice under section 34(1) to be valid must specify with clearness and particularity the assessment year for which the assessment is sought to be reopened. It was further held that where a notice or reassessment consisting of two parts. i.e., a notice under section 34(1) (a) and under section 22(2), contained a discrepancy with regard to the assessment year, viz., the notice under section 34 specifying the assessment year 1949-50 and the notice under section 22(2) specifying the assessment year 1950-51, the notice was not valid and reassessment proceedings could not be taken on the basis of such notice. At page 108 of the report, my learned brother, who delivered the judgment of the Division Bench, has observed, as follows;
“The two notices are issued under different section and are for different assessment years and there is nothing to show even as much as a tenuous connection between the two notices. One is a notice under section 34(1) (a) for the assessment year 1949-50, while the other is a notice under section 22(2) for the assessment year 1950-51. We are, therefore, of the view that the revenue is not entitled to rely on the notice headed under section 22(2) for the purpose of contending that the assessment year mentioned in the notice headed under section 34 was a mistake and that that notice was in fact a notice for the assessment year 1950-51. ….. There being a clear and patent contradiction between the two constituent parts of the notice under section 34(1) (a) in regard to the assessment year to the assessment year, there would be nothing to show as to which part of the notice mentioned the correct assessment year….”
6. So, the decision of the Division Bench was on two grounds – (1) that there was nothing to indicate that the assessment year mentioned in one of the two notices was the correct assessment year; and (2) that there was a clear and patent contradiction between the two constituent parts of the notice even if the notice, viz., one part under section 34 and the other under section 22 were read as a whole.
7. In this connection, reliance was also placed on a decision of the Bombay High Cout in Commissioner of Income-tax v. Ramsukh Motilal. In that case, what happened was that the noticed under section 34 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 out; 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 condition precedent to the assumption of jurisdiction. At page 59 of the report, Chagla C.J. delivering the judgment of the Division Bench has observed as follows :
“That raises a very important question as to whether failure to give a proper notice under section 34 is merely a procedural defect or whether it is failure to comply with a condition precedent to the assumption of jurisdiction by the Income-tax Officer.”
8. At page 62 of the report, Chagla C.J. has dealt with a judgment of the Calcutta High Court in Commissioner of Agricultural Income-tax v. Sultan Ali, and after dealing with that judgment of the Calcutta High Court, Chagla C.J. has observed as follows :
“Therefore, it is clear that the learned Chief Justice in that case takes the view that a notice under section 34 is a condition precedent to the commencement of proceedings in exercise of jurisdiction. But having held that a proper notice under section 34 is a condition precedent to the assumption of jurisdiction the learned Chief Justice goes on to consider the question of waiver and on the facts of the case he holds there is no waiver. With very great respect to the learned Chief Justice, it is difficult to understand how there can be a waiver of the condition precedent, compliance with which alone can confer jurisdiction upon an authority or a tribunal. It is well settled that no consent can confer jurisdiction upon a court if the courts has no jurisdiction, and if we take the view that the Income-tax Officer can in section 34, then no consent by the assessee or no waiver on his part can confer jurisdiction upon the Income-tax Officer.”
9. The Bombay High Court held that the view of the Calcutta High Court that a defect in the notice under section 34 can be waived by the assessee could not be accepted.
10. On behalf of the department, on the other hand, the learned Advocate-General has relied upon the decision of the Patna High Court in Commissioner of Income-tax v. Banarsilal Rajgarhia. What happened in the case before the Patna High Court was that the accounting period of the assessee was the calendar year. On receiving information that a house had been purchased in the name of the assessee’s wife fora certain amount in 1947, the previous year relevant to the assessment year, the Income-tax Officer served a notice under section 34 of Act stating : “Whereas I have reason to believe that 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 1948-49. This contention was upheld by the Appellate Tribunal and on a reference to the High Court, the Patana 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 proceedings taken in pursuance thereof or the order of reassessment. The decision of the Calcutta High Court in Commissioner of Agricultural Income-tax v. Sultan Ali and the decision of the Bombay High Court in Commissioner of Income-tax v. Ramsukh Motilal were both considered by the learned judges of the Patna High Court case to the conclusion that there was only a clerical mistake in the notice issued under section 34 and that there was no irregularity in the notice; to all intents and purposes the notice related to 1948-49, it was understood to be so by the assessee and the mere clerical mistake in mentioning the assessment year did not have, on the facts of that case, the effect of invalidating the notice. At the worst, according to the learned judges of the Patna High Court, the mistake amounted to an irregularity, which was waived by the assessee. Thus the learned Judges of the Patna High Court accepted the Calcutta view that if there is any defect or irregularity, it can be waived by the assessee.
11. It is in the light of these decisions, viz., of the Gujarat High Court, of the Bombay High Court and the Patna High Court that we have to consider whether, on the facts and circumstances of this case, the notice issued under section 34 was invalid or not; and secondly, whether the action of the assessee in submitting his return for the assessment year 1949-50 indicated that the assessee had not been misled in any manner. It is true that the assessee himself has treated the mention of the assessment year 1948-49 in the notice under section 34 as a mistake and has overlooked this fact and has proceeded on the footing that the notice had been issued to him for the assessment year 1949-50.
12. The question is whether the decision of the Gujarat High Court in Nyalchand Malukchand Dagli v. Commissioner of Income-tax can be distinguished in the instant case. It is true that in that particular case, there assessee did not submit any return immediately but at a very early stage raised a contention that the two notices, one under section 34 and the other under section 22(2), had mentioned different years of assessment. It is clear that, according to the view of this High Court, if there are two inconsistent dates, one in the notice under section 34 and 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 Court on the other as to whether a mistake or a defect in a notice under section 34 can be waived by the assessee. The learned Advocate-General has contended that we should accept the view of the Patna and Calcutta High Courts. But as this decision of the Bombay High Court was delivered prior to the bifurcation of the State of Bombay in 1960, we are bound by the decision of the Division Bench of Bombay High Court; and in view of the decision of the Bombay High Court in Commissioner of Income-tax v. Ramsukh Motilal, we hold that the defect or the mistake in the notice under section 34 cannot be waived by the assessee and even if the assessee has submitted his return for the assessment year 1949-50, such submission of the return cannot help the department.
13. Under these circumstances, we hold that the notice under section 34, dated February 28, 1958, was in invalid notice and that invalidity vitiated the proceedings taken in pursuance of the said notice. We, therefore, answer the question in the affirmative. The Commissioner to pay the costs of the assessee.