Section 43 notice is procedural only and may be waived where agency is admitted; non-service did not invalidate assessment.

Liability of an agent for a non-resident principal's tax arises under section 42, while section 43 provides only the procedure for identifying and hearing the alleged agent. The court stated that notice under section 43 does not confer jurisdiction and is not a condition precedent, unlike section 34; where the assessee voluntarily returned as agent and did not dispute that status, the notice requirement could be waived and non-service did not invalidate the assessment. The reference was answered in the negative, in favour of the Revenue.

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Issues: Whether an assessment made on an assessee as agent of a non-resident principal was invalid for service of notice under section 43 of the Income-tax Act, and whether such notice was a condition precedent to jurisdiction or a waivable procedural requirement.

Analysis: Liability of an agent for the tax due by a non-resident principal arises under section 42, while section 43 prescribes the procedure for identifying and hearing the person alleged to be the agent. The notice under section 43 does not itself confer jurisdiction on the Income-tax Officer; unlike section 34, it is not a jurisdictional condition precedent. Where the assessee voluntarily filed a return admitting his status as agent and did not dispute that status, the statutory notice became unnecessary and could be waived. Earlier authority of the Court had already recognised that service of such notice is superfluous where the assessee admits the agency. The later decision dealing with section 43 did not decide the waiver question, and the decision under section 34 was distinguishable because section 34 involves a jurisdictional precondition.

Conclusion: The notice under section 43 was not a condition precedent to the validity of the assessment and its non-service did not vitiate the assessment in the circumstances. The answer to the reference was in the negative, in favour of the Revenue.

Ratio Decidendi: A notice that is merely procedural and intended for the assessee's benefit may be waived, and non-service of such notice does not invalidate an assessment unless the statute makes service a condition precedent to the assumption of jurisdiction.

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