JUDGMENT M.A. Ansari, C.J. 1. This reference has been made on the application of the Commissioner of Income Tax under Section 66(1) of the Income Tax Act, herein referred to as the Act. The assessee has been doing business in Malabar produce, cloth, etc., in Kozhikode, and had for the assessment year 1945-46 submitted a return showing Rs. 7,960/- as losses. The assessment on him for the aforesaid year was, however, concluded on a total income of Rs. 8009/-. Seven years later the Income Tax Officer obtained information regarding large deposits having been made in the assessee's name in the Abdul Rehman Branch of the Central Bank of India Ltd., in Bombay, and, thereupon issued on March 18, 1954, the notice under Section 34 of the Act. It was served on the assessee's son on March 22, 1954, and the Income Tax Officer, treating the service insufficient, issued another notice, which was affixed in the business premises of the assessee, because he was said to be then in Bombay or Ceylon. Subsequently the assessee filed return and the re-assessment was concluded under Sections 23(3) and 34 of the Act, Rs. 61,036/- being then levied as the tax. One of the objections in the appeal before the Appellate Assistant Commissioner was that the entire re-assessment proceedings had been illegal and void, in as much as notice under Section 34(l)(a) of the Act had not been properly served. That objection was not sustained, and on further appeal the Income Tax Appellate Tribunal has upheld it. Therefore, the appeal was allowed, but without decisions on other issues raised in the appeal. The relevant extracts from the Tribunal's order are as follows : "It was stated before us by the learned counsel for the assessee that he gave the Bombay address of the assessee on 8-3-1954 and we have no reason to doubt this statement and therefore, it passed our comprehension why the Income Tax Officer did not move in the matter quickly except that he believed in the affixture as a good aid in the last resort. With this knowledge of the whereabouts of the assessee, "it is futile" to borrow the words of their Lordships in Myitkyina Trading Depot v. Deputy Tahsildar, Paramakudi (32 ITR p. 393) to look for the assessee at Calicut or to claim that he could not be found at Calicut. With this knowledge of the whereabouts of the assessee, "it is futile" to borrow the words of their Lordships in Myitkyina Trading Depot v. Deputy Tahsildar, Paramakudi (32 ITR p. 393) to look for the assessee at Calicut or to claim that he could not be found at Calicut. Recourse to substituted service is not to be resorted to as a matter of routine. It should be shown that the party was avoiding such service. There is no evidence to show that this was so. Moreover, the notice by affixture could not be established in absence of their addresses. The assessee's counsel requeued an opportunity to examine the witnesses, but no such opportunity was given to him. We are, therefore of the opinion that there was no proper service of the notice on the assessee................" Thereafter, the Commissioner of Income Tax applied, and the following question has been referred : "Whether on the facts and in the circumstances of the case, the re-assessment for the year 1945-46 made on 9-3-1955 was valid". 2. On January 2, 1961, a Division Bench of this court of which one of us was a party had found additional facts to be necessary for answering the question. It had been then held that the jurisdiction of the Income Tax Officer under Section 34 of the Act did not depend upon issue of a notice, but that the notice was a condition precedent to the assumption of jurisdiction vested in the Income Tax Officer. Consistently it was found that should the assessee waive the absence of notice the Income Tax Officer would not be considered to have made invalid assessment, and further statement as to whether there had been such waiver by the assessee to cure the infirmity in the notice was necessary. Therefore the Tribunal was asked to and has submitted a further statement. Therein the assessee's several requests subsequent to the affixation of the notice at his business premises on March 24, 1954 are given in some detail, and finally the Tribunal finds that from the facts so set out there is no conscious waiver. 3. Therefore the Tribunal was asked to and has submitted a further statement. Therein the assessee's several requests subsequent to the affixation of the notice at his business premises on March 24, 1954 are given in some detail, and finally the Tribunal finds that from the facts so set out there is no conscious waiver. 3. The learned Government Pleader for the Income Tax Commissioner has urged that the earlier service of notice on the son was sufficient service with the result of the subsequent improper service on the assessee's premises becoming immaterial for deciding whether the assessment was after proper notice to the assessee. In support of this argument he relied on Haji Wali Mohamed Haji Moosa Saya v. Commr. of Income Tax (37 ITR 538), where a Division Bench, of which one of us was a party, had held that an erroneous conclusion by the Income Tax Officer about the service of the earlier notice not being sufficient would not invalidate the assessment that followed a second notice, which had not been properly served. In other words, it was held that even though the taxing authority making the assessment had erroneously found the earlier notice to be improperly served, the condition precedent to the notice being properly served would be complied with, should a notice, though not immediate, be properly served. It is, therefore, clear that the case would be of no assistance unless the earlier notice on the assessee's son in this reference be found to be sufficient; but that cannot be said, because of the earlier information of the assessee being absent in Bombay, and the service on the son in these circumstances becoming idle formality. The Tribunal therefore, has rightly relied on Myitkyina Trading Depot v. Deputy Tahsildar, Paramakudi (32 ITR 393), which has also been relied on in the argument of the assessee's learned advocate before us. The Legislature, by directing in Section 34, service of notice on the assessee, has intended such notice not to be bare procedural requirement, and it would not be satisfied where the assessee's earlier departure to a known place would preclude his obtaining immediate information of such notice having been issued. Indeed the Income Tax Officer with the information thought that the service on the son would in the circumstances not be sufficient, and that conclusion is not incorrect. Indeed the Income Tax Officer with the information thought that the service on the son would in the circumstances not be sufficient, and that conclusion is not incorrect. It follows that the earlier notice had not been properly served and it would, therefore, not justify the exercise of jurisdiction under Section 34 of the Act. 4. So far as the subsequent affixation of notice on the premises is concerned it should be recalled that under Section 63 of the Act a notice under the Act may be served as if it were a summons issued under Civil Procedure Code and the aforesaid Code provides for affixation without Court's order only when the person could not be found after all due and reasonable diligence. As the condition precedent been not proved the affixation on the house would not under the Code be sufficient. It would at this stage be of advantage to refer to what has been said in Narayana Chetty v. Income Tax Officer (35 ITR 388 at p. 392) in order to emphasise the importance of notice for proceeding under Section 34 of the Act. Here the legal position has been stated in these words: "The argument is that the service of the requisite notice on the assessee is a condition precedent to the validity of any re-assessment 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 re-assessment 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." We would not circumscribe the words 'invalid notice' by holding what is invalid, because of being not properly served would still sustain proceedings under Section 34; for, a notice in our opinion, is invalid either because of its being incorrectly issued or through improperly served. We would, therefore, not accept as correct the argument pressed before us by the learned Government Pleader that procedural defect would not invalidate a notice. In this case, it is clear that the second notice has not been properly served ; because the affixation has not been shown in the case to be legally correct. It follows that proceeding started on such invalid notice would not be upheld. 5. For the purposes of our answer we need not decide whether the assessment is vitiated by total lack of jurisdiction or its exercise is bad due to the failure to observe the condition precedent, because on the assumption of issuing notice to be only the condition precedent, no waiver of the failure to observe it has taken place here. We have already referred to the conclusion of the Tribunal about such waiver not having been established in the case. The learned Government Pleader has urged that waiver is a question of law, and, therefore, it is open to him to argue that several steps taken by the assessee legally amount to such waiver. The rule of what amounts to waiver is well settled and we need refer only to the observation in Basheshar Nath v. I. T. Commr. ( AIR 1959 SC 149 at p. 172), which has been already quoted in our earlier order, that had called for further statement of facts. It was said in that case that there must be a conscious and intentional relinquishment of an existing right; and, therefore, such relinquishing of the right must be established. The several acts of the assessee narrated in the fresh statement of facts do not lead to the only conclusion of the assessee having relinquished his objections to the invalid notice. He was undoubtedly anxious to send return, and was asking for time; but that may be to avoid penal consequences. Therefore, waiver of the right arising from the failure of compliance with the direction of serving notice on the assessee, is not established. It follows that the answer to the question in this reference is that re-assessment for 1945-46 made on March 9th is invalid, and that be sent. The assessee will get costs, Counsel's fee being fixed at Rs. 100/-.