JUDGMENT 1. This writ petition arises in proceedings under the Wealth Tax Act, 1957. A legal contention fundamental in its impact-was raised at the very first step the Department took against the petitioner. 2. The petitioner is a trader in Calicut. The fragrance of the spices grown in the hinterlands of that city pervades the desert airs which have their palaces and pyramids. The petitioner continues the connection of a trade tradition, by the export of many items, 'muchwas', yarn and fish oil included. 3. Muchwa is a mini skiff which can sail safe even when unruly waves champ and chafe. Inherited skill in its making had earned for the petitioner a good export market in that line. The traders of the gulf countries place orders with the petitioner for the construction of muchwas. Advance payments are obtained by the petitioner to commence and continue the construction operation. The construction consumes about two years for its completion. The frequency of the transactions and the substantial volume of business, make strong and intimate contacts between the petitioner and the foreign customers. 4. This petition is not concerned with other revenue problems arising out of the transactions entered into by the petitioner with such customers: such as whether the advance payment could be treated as income of the petitioner. 5. The Department thought about 'booking' the petitioner for wealth tax. Proceedings could have been continued without hitch, whatever be its ultimate result, if they had been initiated reasonably early. Delay, however, occurred. A bar of limitation imposed under the statute under which the officials worked, made the finalisation of the assessment within a short time thereafter, an imperative exercise. It was then a matter of risky brinkmanship. The proceedings relate to the year 1984-85. Under S.17 of the Act, a four year period is the outer limit of time within which the notice is to be issued. 6. The notice was actually issued only on 28th March 1989. The petitioner was directed to submit the return not later than 30th April 1989. The petitioner hastened to the Court, protesting about the attempted assessment. Further proceedings were stayed under orders of this Court. If the notice Ext. P-1 is wholly unsustainable, the Department may altogether miss an opportunity to bring to tax, the taxable wealth of the petitioner for the year 1984-85. The petitioner hastened to the Court, protesting about the attempted assessment. Further proceedings were stayed under orders of this Court. If the notice Ext. P-1 is wholly unsustainable, the Department may altogether miss an opportunity to bring to tax, the taxable wealth of the petitioner for the year 1984-85. It is therefore understandable that the Department could not readily agree to an invalidation of Ext. P-1. The validity of Ext. P-1 has therefore to be carefully considered by this Court. 7. Ext. P-1 notice is addressed to the petitioner in the following phraseology: "M/s Haji P. I. Ahamed Koya, on behalf of Moorad Abdul Mahassim Al-Ajeel, South Beach Road, Calicut 1." (emphasis supplied) The address is clear and categoric. The addressee is "Haji P-1. Ahamed Koya on behalf of Moorad Abdul Mahassim Al-Ajeel." The petitioner is sought to be proceeded against as an agent of Moorad Abdul Mahassim. That is the only manner in which the description of the petitioner 'Haji P. I. Ahamed Koya on behalf of Moorad Abdul Mahassim' could be understood. In other words, the addressee is not a person acting on his own, but one acting on behalf of someone else. In the language of the statute, the petitioner has been directed to submit a return of his wealth, he being treated as an agent of the overseas principal, Moorad "Abdul Mahassim Al-Ajeel 8. The short question before the Court is whether without anything by way of an antecedent action, the Department could straightaway issue a notice to such a person directing him to submit a return. Can it be issued without a determination of his status: whether he is an agent of a foreign principal? 9. Two sections of the Wealth Tax Act are relevant in this connection. They are S.17 and 22. S.17, casts an obligation on the part of an assessee to submit his return. If no return is filed voluntarily, it will be open to the authorities to initiate proceedings compelling the defaulting person to do so. The compulsion comes on the assumption that the petitioner is an agent of a foreign customer (to be more precise, and in tune with the language of the statute, as an agent of the non resident). Can such an assumption be made at all in the scheme of the statute?--is the question.. 10. The compulsion comes on the assumption that the petitioner is an agent of a foreign customer (to be more precise, and in tune with the language of the statute, as an agent of the non resident). Can such an assumption be made at all in the scheme of the statute?--is the question.. 10. It is perfectly open to the Department to issue a notice under S.17 to any person in India in circumstances where he is found to be acting as an agent of a non resident principal. However, before a person is so treated as an agent of a nonresident principal, the requirements of S.22 have to be complied with. That requirement is couched in these terms : "22. (1) Where the person liable to tax under this Act resides outside India, the tax may be levied upon and recovered from his agent, and the agent shall be deemed to be, for all the purposes of this Act, the assessee in respect of such tax. (2) Any person employed by or on behalf of a person referred to in sub-section (1) or through whom such person is in the receipt of any income, profits or gains, or who is in possession or has custody of any asset of such person and upon whom the Wealth Tax Officer has caused a notice to be served of his intention of treating him as the agent of such person shall, for the purposes of sub-section (1), be deemed to be the agent of such person: Provided that - (1) no person shall be deemed to be the agent of another under this section unless he has had an opportunity of being heard by the Wealth Tax Officer as to his being treated as such; and x x x ". (emphasis supplied) 11. It is submitted that in the present case, there has not been any determination of the petitioner's status as an agent of the foreign customer. Counsel for the Revenue is therefore constrained to adopt a stand that even without such an exercise as visualised in S.22 (2), the proceedings could be commenced and continued under S.17. According to him, all that is necessary is to have a consideration of the question of agency, in the course of the assessment proceedings, on the basis of materials furnished by the petitioner in relation to that facet of the contentions. 12. According to him, all that is necessary is to have a consideration of the question of agency, in the course of the assessment proceedings, on the basis of materials furnished by the petitioner in relation to that facet of the contentions. 12. A plain reading of the section, clearly brings home to mind a peremptory requirement of a finding by the assessing authority, on the question of the agency's status. Encapsulating the principles of natural justice, S.17 (2) itself visualises, as the first step in such proceedings, the issue of a notice, containing his proposal to treat a person concerned as an agent of the foreign principal. If there are no objections, that part of the operation is simple and easy. It is otherwise, if objections are actually preferred. If objections have come in, they have to be duly considered, and a determination recorded under a reasoned order. 13. The rigorous requirements of the salutary provisions could not be violated with impunity by an assessing official, even if he is confronted with a limited period of time at his disposal. An omission to comply with the obligations of S.22, will result only in a lifeless order. The Court can and shall, declare the invalidity of the notice. 14. An agent, (as known in general law) of a person residing outside India, is deemed for all the purposes of this Act, the assessee in respect of wealth tax. The tax can be levied on the agent; and if the levy is successful, the tax can be collected from the agent. S.22 (2) enumerates the category persons who could be so treated as agents. An employee of a person residing outside India will come within the category. So does a person who is in receipt of income, profits or gains through such non resident. Even a person who is in possession or has custody of, any asset of the non resident, will come within the category. It is, however, not enough that a person in India, satisfies the description of anyone of the above categories. A conjoint condition also should be satisfied. That condition is the service of a notice from the assessing officer indicating the intention of the officer to treat such a person, as the agent of the non resident. 15. It is agreed that no notice as contemplated under S.22 (2) had been served on the petitioner. A conjoint condition also should be satisfied. That condition is the service of a notice from the assessing officer indicating the intention of the officer to treat such a person, as the agent of the non resident. 15. It is agreed that no notice as contemplated under S.22 (2) had been served on the petitioner. If that be so, Ext. P-1 can be justified only on the basis of S.22 (1). S.22, as noted earlier, permits the levy of tax on the agent. Then comes the rub. The proviso comes into full play and effect. Under its mandate: "(1) no person shall be deemed to be the agent or another under this section unless he has had an opportunity of being heard by the Wealth Tax Officer as to his being treated as such." (emphasis supplied) The opportunity contemplated under the proviso is not in relation to any contention about the taxability or the quantum thereof. It is in relation to the very idea of treating the resident Indian as an agent of the non resident foreigner. 16. The type of composite opportunity as suggested by counsel for the Revenue will not fit in with the plain and clear requirement of the proviso. It is not enough that along with the discussion on the particulars of wealth or the claims of exemptions and allied exercises, the question of agency also is considered. 17. The notice Ext. P-1 cannot be treated as a notice under the proviso to S.22. In unambiguous terms, the declaration and description of the petitioner as an agent of the nonresident principal is visible there. It is clearly indicative of an antecedent determination on the part of the assessing authority that the petitioner is the agent in India, or the foreign principal. Inasmuch as that assumption and determination had been made without any regard to the mandatory requirements of the proviso, that decision and assumption will have to be declared as nonest in the eye of law. 18. Counsel for the Revenue sought to relay on the observations of the Privy Council in Commissioner of Income Tax, Punjab v. Nawal Kishore Kharaiti Lal (1938) 6 I.T.R. 61. That was a case under S.43 of the Income Tax Act, 1922, in relation to the substantive provision. 18. Counsel for the Revenue sought to relay on the observations of the Privy Council in Commissioner of Income Tax, Punjab v. Nawal Kishore Kharaiti Lal (1938) 6 I.T.R. 61. That was a case under S.43 of the Income Tax Act, 1922, in relation to the substantive provision. It is therefore natural that one would be tempted to treat the observations of the Privy Council as fully applicable to, and clinchingly governing, the present situation under the Wealth Tax Act as well. A closer scrutiny of the provisions in relation to the contents of the proviso, however, will bring out the substantial difference and their far reaching impacts. The controversial S.43, which came for consideration before the Privy Council reads: "43. Any person employed by or on behalf of a person residing out of British India, or having any business connexion with such person, or through whom such person is in the receipt of any income, profits or gains upon whom the Income Tax Officer has caused a notice to be served of his intention of treating him as the agent of the non resident person shall, for all the purposes of this Act, be deemed to be such agent: Provided that no person shall be deemed to be the agent of a nonresident person, unless he has had an opportunity of being heard by the Income Tax Officer as to his liability." (emphasis supplied) It is obvious that the opportunity visualised under the corresponding provision of the Income Tax Act is not one in relation to the status of an agent but as one to the liability to tax. In such a circumstance, a composite opportunity might do duty for satisfying the requirements of the statutory provision. They will, however, be totally inadequate, and insufficient, to measure upto the requirements of the proviso to S.22 of the Wealth Tax Act. 19. It may be asked whether a determination of a status as agent will harm or hurt somebody, if ultimately, before the tax is fixed and the collection is made, he will have the opportunity to disabuse the impressions of the assessing authority in relation to the status question. 19. It may be asked whether a determination of a status as agent will harm or hurt somebody, if ultimately, before the tax is fixed and the collection is made, he will have the opportunity to disabuse the impressions of the assessing authority in relation to the status question. It is unnecessary to speculate on what Parliament has pointedly provided for Parliament did require the assessing authority to afford an opportunity to the person concerned to put forward his contentions as against the proposal of the officer to treat him as an agent. What Parliament has directed to be done, the assessing official is bound to scrupulously follow. To be called as an agent, in certain contexts, may be a matter of pride and privilege for the person so called upon. An agent of a pioneering manufacturer, or an established carrier, or a reputed trading house, may declare his position as agent and exhibit his badge with a sense of pride. There was a time in India, when, in every native State, a 'Political Agent' of the ruling emperor carried with him much of a halo of power, and prestige. Even the native ruler himself had to pay obeisance to, if not declare obedience to, such a powerful representative. There are, however, situations in which, a reference as an agent, could be patently pejorative in appearance and effect. To be referred to, even in vague terms as an agent of a foreign force, or a spying agency, is something which any decent man will unhesitatingly detest. It is only but natural then that before a person is branded, for good or bad, as an agent of some other, he is also asked whether he has a say in relation to that proposal. S.22 (1), may take in cases where agents are appointed as such, by a neat document or clear correspondence. By its very definition that fiduciary relationship postulates that one "consents that the other should act on his behalf, and the other...............similarly consents so to act or so acts". It is unnecessary to examine in detail circumstances in which an agency could be implied, when express provisions are not forthcoming. There are cases of agency created by operation of law. By its very definition that fiduciary relationship postulates that one "consents that the other should act on his behalf, and the other...............similarly consents so to act or so acts". It is unnecessary to examine in detail circumstances in which an agency could be implied, when express provisions are not forthcoming. There are cases of agency created by operation of law. "There are various other situations where it can be said that agency has orisen by operation of law..................The original directors of a newly formed company, not being appointed by the company, can be said to be its agents by operation of law. And in certain cases statute remedies gaps in the law by conferring on one person a power to act for another..............." (See Bowstead on Agency, Fifteenth Edition, Page 90.) It will be open to the legislature even to fictionally create a case of agency, even when the consent is absent from the one or the other. S.43 of the Income Tax Act, 1922, and S.22 (2) of the Wealth Tax Act, 1957, and other provisions may be cited as illustrative of this somewhat extreme and extraordinary position. However, even in such circumstances, it is essential that facts are sorted out, the transactions clearly identified, and the persons to whom they are attributed, are properly ascertained. Any slip up in any one of these subordinate processes, can fasten an uncalled for liability on an innocent person. Parliament had provided some built in safeguards against such unjust results. On principle and logic too, the requirement of a reasonable opportunity would be wholesome in its purpose, and irrefragable, in its compliance. 20. Counsel for the Revenue submitted that it will be open to the petitioner to project all his contentions in answer to Ext. P-1. On either side, citations were forthcoming in large numbers, in support of their respective positions. Even at the outset, and at the stage of a notice, the Court can interfere was the strenuous plea on the part of the petitioner. It is unnecessary to recollect the very many occasions where the Supreme Court of India had intervened at that very stage. Any student of Constitutional law, would come with the name of Bengal Immunity case and the Beedi Supply case, which have been decided in the formative years of the Constitutional working of Indian Republic. It is unnecessary to recollect the very many occasions where the Supreme Court of India had intervened at that very stage. Any student of Constitutional law, would come with the name of Bengal Immunity case and the Beedi Supply case, which have been decided in the formative years of the Constitutional working of Indian Republic. The updated enumeration of the cases can be left to a computer, as the principle is well settled. Instances are not rare, where the court has declined to interfere at that stage, holding that the more appropriate method of ventilating the grievance is by directing the aggrieved party to fight it out along the hierarchy of the statutory authorities. That approach is readily preferred when controversies on factual aspects predominate. 21. In the present case, as noted earlier, a determination and assumption relating to the agency has been already come to. Even the counter affidavit is indicative of a firm attitude of the respondents on that aspect. This is evident from the sentence reading: "From a reading of clause (1) along with clause (3) of S.22, it is clear that an opportunity of being heard has to be afforded to the agent before treating him as an assessee in respect of the tax." (emphasis supplied) For the reasons discussed above, I reject that interpretation of the section. Ext. P-1 is accordingly quashed. The Original Petition is allowed but without any order as to costs.