TMI Blog2010 (2) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... ls have been sought for, as given in exhibit P1 are extracted hereunder: 1. Details of quarterly returns filed for the financial years 2006-07, 2007-08 and 2008-09. 2. Details of payment made towards interest (above Rs. 5,000) for the financial years 2006-07, 2007-08 and 2008-09. 3. Copy of the profit and loss account and balance-sheet for the financial years 2006-07, 2007-08 and 2008-09. 3. It is further stated in exhibit P1 that, if the addressee has failed to deduct/collect the tax at source and remit the tax to the Central Government account, the addressee is also required to show cause in writ-ing as to : 1. Why the assessee should not be treated as in default under section 201(1) in respect of non-deduction/short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referring to section 2(31) of the Income-tax Act defining the term "person" stands covered against the petitioners and hence that the same is not pressed. Thus, the remaining contentions are confined mainly as to the sustainability of the notice, particularly referring to the mandate under the "second proviso" to section 133(6) of the Income-tax Act ("Act" in short), i.e., whether the said notices have been issued after obtaining the "prior permission" of the Director or the Commissioner, as the case may be. 7. Exhibit P1 notices do not mention anything as to the "prior permission" as above and hence all the learned counsel for the petitioners submit that the basic requirement under section 133(6) has not been satisfied ; which, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Obviously, the pleadings in the above batch of the writ petitions have been moulded in such a manner, as if exhibit P1 notice had been issued by the concerned authority under section 133(6) of the Income-tax Act, seek-ing for intervention in so far as no "prior approval" of the Director/Com-missioner was obtained before issuance of such notices. The learned counsel for the petitioners submits that this is the only provision under which any information could have been gathered from persons like the petitioners and this being the position, satisfaction of the requirement as contemplated under the second proviso to sub-section (6) of section 133 is very much mandatory. This being the position, there is absolutely no rationale on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned under section 201. As it stands so, the action pursued by the respondent in having issued exhibit P1 notice, calling for the requisite information and materials to be supplied by persons like the petitioners is perfectly within the four walls of the law ; submits the learned standing counsel. Further, reliance is also placed on the power vested on the "authority" under section 131 of the Income-tax Act, for giving effect to the provisions of the Act, which is equivalent to the powers of the civil court, as referred to therein. The learned standing counsel further submits that the mandate under section 133(6) will be attracted, only if it is "not in the course of" any "enquiry" or any "proceeding" is pending ; whereas in the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleading that the petitioner does not constitute a "person" as defined under section 2(31) of the Act ; that the said provision is ultra vires the Constitution of India and hence is liable to be struck down from the Income-tax Act. But in view of the submission made by the learned counsel for the petitioners that the contention raised in the writ petitions in this regard is not intended to be pressed any further, this court is not required to consider or entertain the same and it is answered against the petitioners. 13. Now, the remaining question is, whether exhibit P1 is a notice issued by the authority concerned under section 133(6) or under some other circum-stances. If it is issued under section 133(6), obviously the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the above circumstance, that the petitioner has been required to furnish the relevant materials also making it clear that, if any "personal hearing" was insisted, the party could appear before the issuing authority or through an authorised representative on the specified date, also calling for a written reply as specified. 15. To furnish the particulars as per the "first part" of exhibit P1 it clearly comes within the power of the authority concerned, as vested under section 131. This is all the more so, since the petitioners do not have a case that the authority who issued exhibit P1 does not come within the purview of any of the authorities named in section 131. If only the Department/authority is not satisfied with the explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
