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2018 (6) TMI 1473 - HC - Income TaxEntitlement to person issued with a notice under Rule 73 of the Second Schedule of the Income Tax Act 1961 to invoke section 438 of Cr.P.C. - recovery of the tax dues determined under section 222 of the Act - Held that:- Rule 73 specifically provides that no order for the arrest and detention in a civil prison of a defaulter could be made unless the Tax Recovery Officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause as to why he should not be committed to civil prison. When a defaulter appears before the Tax Recovery Officer, he shall be given an opportunity of hearing and only thereafter, an order could be passed for detention of the defaulter in the civil prison. Therefore, the apprehension of the petitioner that on issuance of a show cause notice under Rule 73 of the Second Schedule of the Income Tax Act, he has a reason to believe that he would be arrested and detained in prison is wholly misconceived and misplaced. Thus by issuance of notice under Rule 73 of the Second Schedule of the Income Tax Act, the petitioner is not accused of committing any non-bailable offence and the said notice does not give rise to any apprehension of immediate arrest so as to invoke the jurisdiction of the Sessions Court or High Court under section 438 of Cr.P.C. Both the constituents of section 438 of Cr.P.C. are not attracted to the facts of this case. As a result, hold that the petition under section 438 of Cr.P.C. is not maintainable. Criminal petition is dismissed.
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