C/SCA/12227/2019 JUDGMENT IN HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12227 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/- and HONOURABLE MR.JUSTICE A.C. RAO Sd/- 1 Whether Reporters of Local Papers may be allowed to Yes see judgment ? 2 To be referred to Reporter or not ? Yes 3 Whether their Lordships wish to see fair copy of No judgment ? 4 Whether this case involves substantial question of law No as to interpretation of Constitution of India or any order made thereunder ? MAULIKKUMAR VINODKUMAR PATEL Versus TAX RECOVERY OFFICER-4 Appearance: MR VISHWAS K SHAH(5364) for Petitioner(s) No. 1 MS MOHINI K SHAH(775) for Petitioner(s) No. 1 MRS MAUNA M BHATT(174) for Respondent(s) No. 1,2 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date : 18/07/2019 Page 1 of 25 C/SCA/12227/2019 JUDGMENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of Constitution of India, writ applicant has prayed for following reliefs: (A) Be pleased to quash and set aside impugned summons dated 04.07.2019 received on 11.07.2019 issued by respondent no.1. (B) Pending hearing, admission, and final disposal of this petition, be pleased to stay operation, effect and implementation of impugned summons dated 04.07.2019 received on 11.07.2019 issued by respondent no.1. (C ) Cost of this petition. 2. case of writ applicant, in his own words, as pleaded in writ application, is as under: 2.1 Petitioner states and submits that petitioner is having PAN No.BZZPP9015K and on 16.12.16, Respondent No.2 passed assessment order under section 144 of Income Tax Act, 1961 against petitioner and against said order of 16.12.16, petitioner preferred appeal before department on 15.06.2019 and currently it is pending. copy of said order dated 16.12.16 passed under section 144 of Income Tax Act is annexed herewith and marked as Annexure-P/2. 2.2 petitioner submits that respondent no.2 has raised demand of Rs.1,64,67,650/- under section 156 of Income Tax Act, 1961. copy of demand notice dated 16.12.16 is annexed herewith and marked as Annexure-P/3. 2.3 petitioner states and submit that on 30.05.2019, Respondent No.2 issued letter of recovery of arrear demand to petitioner. By virtue of said letter, petitioner was asked to file reply/attend office of respondent no.2 as in person or through authorized Page 2 of 25 C/SCA/12227/2019 JUDGMENT representative within 7 days from receipt of letter. copy of letter of recovery of arrear demand dated 30.05.2019 issued by respondent no.2 is annexed herewith and marked as Annexure-P/4. 2.4 petitioner states that on receipt of letter dated 30.05.2019, petitioner preferred appeal before Commissioner of Income Tax (Appeals). said appeal was filed on 15.06.2019 which is currently pending. said appeal filed in Form No.35 before Commissioner of Income Tax (Appeals). copy of appeal filed on 15.06.09 before Commissioner of Income Tax (Appeals) is annexed herewith and marked as Annexure-P/5. 2.5 petitioner states and submits that in response to letter dated 30.05.2019, petitioner's lawyer has filed letter along with Vakalatnama seeking time on 17.06.2019. said letter is received by respondent no.2 on 18.06.2019. copy of letter dated 17.06.2019 issued by petitioner's lawyer to respondent no.2 is annexed herewith and marked as Annexure-P/6. 2.6 Despite aforesaid, petitioner states that respondent no.1 has issued summons dated 04.07.2019 which is received by petitioner on 11.07.2019 by virtue of which petitioner has been directed to personally attend office of respondent no.1 on 16.07.2019 at 11:30 A.M to give evidence and to produce books of account and other documents and not to depart until petitioner receives permission to do so. 3. Thus, writ applicant seeks to question legality and validity of summons dated 4th July, 2019 issued by Tax Recovery Officer-4, Ahmedabad in exercise of his powers under Rule 83 of Second Schedule to Income Tax Act, 1961. summons is as follows: SUMMONS UNDER RULE 83 OF SECOND SCHEDULE TO INCOME TAX ACT, 1961 Page 3 of 25 C/SCA/12227/2019 JUDGMENT To, Maulikkumar Vinodkumar Patel, J-11, Virat Apartment, Nr. Mahfil Restaurent, Sola-Road, Ghatlodia, Ahmedabad, 380061. Whereas your attendance is required in connection with recovery proceedings pending before me in your case, in this matter, you are hereby required to personally attend my office at address mentioned above on 16.07.2019 at 11:30 A.M to give evidence and produce Books of Account and other documents specified below and not to depart until you receive my permission to do so. Without prejudice to provision of any other law for time being in force if you intentionally omit to do so, attend and give evidence or produce books of account documents, you shall be liable to consequences mentioned in section 32(*) of C.P:.C 1908. SPECIFICATION OF DOCUMENTS AND BOOKS 1. Personal attendance is compulsory 2. Copy of Return of Income alongwith account and Bank statement of last three years. 3. Details of Movable/Immovable property alongwith description and address in name of individual alongwith complete details. Given under my hand and seal at Ahmedabad on this 04.07.2019. (Dilip M. Sarvaiya) Tax Recovery Officer-4, Ahmedabad. 4. Mr. Vishwas K. Shah, learned counsel appearing for writ applicant has raised following issues for consideration of this Court: 1. Whether impugned summons issued under Rule Page 4 of 25 C/SCA/12227/2019 JUDGMENT 83 is within power and authority of Tax Recovery Officer? 2. Whether impugned summons is proper and just seeking personal attendance when Vakalatnama of lawyer is filed and petitioner is inclined to cooperate to produce all documents, if reasonable time is given? 3. Whether impugned summons can stipulate that petitioner will not depart until directed by Tax Recovery Officer when he attends office on direction of personal presence? 5. Mr. Shah give us fair idea about sequence of events that has taken place in present matter: Sr. No. Date Events 1 16.12.16 Assessment order is passed against petitioner under section 144 of Income Tax Act, 1961 for A.Y.2014-15 2 16.12.16 Notice of demand of Rs.1,64,67,650/- under section 156 of Income Tax is issued to petitioner. demand has remain unpaid by petitioner. 3 30.05.2019 Letter of recovery of demand of arrears is issued by respondent no.2 to petitioner. 4 15.06.2019 Appeal is filed in form No.35 before Commissioner of Income Tax (Appeals). said appeal is pending for adjudication. 5 18.06.2019 Petitioner's lawyer has filed letter along with Vakalatnama and sought for time before respondent no.2 6 11/07/19 Petitioner has received impugned summons dated 04.07.2019 under Rule 83 of second schedule to Income Tax Act-1961 to remain personally present on 16.07.2019 at 11:30 A.M. 6. Mr. Shah submitted that respondent no.1 is not Page 5 of 25 C/SCA/12227/2019 JUDGMENT empowered to insist for personal attendance of writ applicant by issue of summons under Rule 83 of Second Schedule to Act. He further submitted that respondent no.1 is also not empowered under Rule 83 to issue direction that writ applicant shall not depart without prior permission of respondent no.1. According to Mr. Shah, Rule 83 only speaks of power to take evidence. argument is that Rule 83 does not confer respondent no.1 with power to secure personal attendance of applicant. He submitted that although impugned summons refers to Civil Procedure Code, yet same is not, at all, applicable to case on hand. Mr. Shah submitted that whole object of issue of summons under Rule 83 is to gather or collect necessary information as regards assets, books of accounts, documents etc. of assessee. Mr. Shah clarified that his client would definitely honour summons served upon him under Rule 83, but insistence on part of respondent no.1 for personal attendance of writ applicant is something illegal. According to Mr. Shah, whatever information is required or necessary, writ applicant is duty bound to furnish same through his legal representative or his chartered accountant. 7. Mr. Shah also invited our attention to Rule 73 of Second Schedule to Act, 1961. Section 73 falls within part- V of Second Schedule. It talks about notice to show-cause. Part-V is with respect to arrest and detention of defaulter. Mr. Shah tried to draw fine distinction between Rule 83 and Rule 73 by pointing out that in Rule 73, Tax Recovery Officer is empowered to call upon defaulter to appear before him in person on date specified in notice, Page 6 of 25 C/SCA/12227/2019 JUDGMENT whereas Rule 83 does not confer with any such power. Rule 83 only confers with power to take evidence. 8. Mr. Shah, in last, invited our attention to Section 131 of Act, 1961. Section 131 is with respect to power of Assessing Officer regarding discovery, production of evidence etc. Mr. Shah pointed out that Section 131 very clearly provides or stipulates that for purposes of Act, 1961, Assessing Officer shall have same powers as are vested in Court under Civil Procedure Code when trying suit in respect of matters like discovery and inspection; enforcing attendance of any person; compelling production of books of account and other documents and issuing commissions. Rule 83 is absolutely silent as regards aforesaid. In such circumstances, according to Mr. Shah, although respondent No.1 may be empowered to issue summons under Rule 83 of Second Schedule to Act, 1961, yet he cannot insist for personal attendance of writ applicant. To put it in other words, according to Mr. Shah, personal attendance cannot be made compulsory. 9. Mr. Shah, in last, submitted that summons under Rule 83 of Second Schedule to Act could have been issued, provided any proceedings could be said to be pending with Income Tax Officer, Ward-4(2)(3), Ahmedabad. In absence of any proceedings before Income Tax Officer, no summons under Rule 83 of Second Schedule to Act could have been served upon writ applicant. 10. In such circumstances, referred to above, Mr. Shah prays that there being merit in this writ application, same be Page 7 of 25 C/SCA/12227/2019 JUDGMENT allowed and reliefs as prayed for in writ application may be granted. 11. On other hand, this writ application has been vehemently opposed by Ms. Mauna Bhatt, learned senior standing counsel appearing for respondents. Ms. Bhatt submitted that no error, not to speak of any error of law, could be said to have been committed by respondent No.1 in issuing summons under Rule 83 of Second Schedule to Act, 1961 for purpose of inquiry and for that purpose to compel personal attendance of writ applicant. Ms. Bhatt submitted that Rule 83 makes it explicitly clear that authority concerned shall have powers of Civil Court while trying suit for purpose of receiving evidence, administering oaths, enforcing attendance of witnesses and compelling production of documents. According to Ms. Bhatt, there is no merit in principal argument of Mr. Shah that by virtue of summons under Rule 83 of Second Schedule to Act, 1961, personal attendance of assessee cannot be made compulsory. Ms. Bhatt invited attention of this Court to assessment order passed by respondent No.1. According to Ms. Bhatt, writ applicant failed to appear before respondent No.1 during course of assessment proceedings, and in such circumstances, respondent No.1 carried out assessment in exercise of his powers under Section 144 of Act, 1961, i.e., by best judgment assessment. Ms. Bhatt, from record available with her, pointed out following: (i) Penalty notice under section 271(1)(c) read with section 274 of Act, 1961 along with demand notice under Page 8 of 25 C/SCA/12227/2019 JUDGMENT section 156 of Act was served upon assessee through speed post. (ii) certificate under Section 222 of Act along with notice of demand under Rule 2 of Second Schedule to Act was received from Assessing Officer for certified demand of Rs.2,88,59,337/- for A.Y. 2014-15. (iii) TRC was issued by Assessing Officer after obtaining necessary permission from Addl. Commissioner of Income Tax, Range-4(2), Ahmedabad vide Letter No.Addl.CIT, Range-4(2)/Approval/TRC/2018-19. (iv) After receipt of TRC, office of Tax Recovery Officer (4), Ahmedabad issued ITCP-1 on 25th March, 2019 for A.Y.2014-15 and same was served upon writ applicant on 27th March, 2019. (v) writ applicant neither paid outstanding demand nor filed any reply to ITCP-1/Form No.57 dated 25th March,2019. In such circumstances, letter was addressed to writ applicant to pay demand of Rs.2,88,59,337/- plus interest under section 220(2) of Act for A.Y.2014-15. said letter was duly served upon assessee. (vi) assessee neither attended nor has paid demand till this date. (vii) In such circumstances, referred to above, summons under Rule 83 of Second Schedule to Act, 1961 was issued to writ applicant dated 4th July, 2019 for purpose of collecting necessary details/information from writ Page 9 of 25 C/SCA/12227/2019 JUDGMENT applicant/assessee. 12. Ms. Bhatt, in support of her submission as regards power of respondent No.1, has placed strong reliance on decision of Madras High Court in case of G.V. Films Ltd. vs. S. Priyadarshan & Anr., (2006) 287 ITR 561 (Mad). By placing reliance on decision of Madras High Court, Ms. Bhatt also submitted that Income Tax Officers are entitled to lift veil of corporate entity and pay regard to realities. According to Ms. Bhatt, as writ applicant failed to render any assistance so far as assessment proceedings are concerned, respondent No.1 thought fit to issue summons under Rule 83 for purpose of gathering necessary information. Ms. Bhatt pointed out that on one pretext or other, writ applicant kept on seeking time, and during interregnum period also tried to dispose of his properties fraudulently or surreptitiously. 13. In such circumstance, referred to above, Ms. Bhatt prays that there being no merit in this writ application, same be rejected. 14. Having heard learned counsel appearing for parties and having gone through materials on record, only question that falls for our consideration is whether respondent No.1 committed any error in issuing summons under Rule 83 of Second Schedule to Act, 1961 for purpose of enforcing personal attendance of writ applicant. 15. Before adverting to rival submissions canvassed on either side, we should look into few relevant provisions of law. Page 10 of 25 C/SCA/12227/2019 JUDGMENT Rule 83 of Second Schedule reads thus: Power to take evidence. 83. Every [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner], Tax Recovery Officer or other officer acting under provisions of this Schedule shall have powers of civil court while trying suit for purpose of receiving evidence, administering oaths, enforcing attendance of witnesses and compelling production of documents. 16. Rule 73 of Second Schedule reads as follows: Notice to show cause. 73. (1) No order for arrest and detention in civil prison of defaulter shall be made unless Tax Recovery Officer has issued and served notice upon defaulter calling upon him to appear before him on date specified in notice and to show cause why he should not be committed to civil prison, and unless Tax Recovery Officer, for reasons recorded in writing, is satisfied- (a)that defaulter, with object or effect of obstructing execution of certificate, has, after [the drawing up of certificate by Tax Recovery Officer], dishonestly transferred, concealed, or removed any part of his property, or (b) that defaulter has, or has had since [the drawing up of certificate by Tax Recovery Officer], means to pay arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay same. (2) Notwithstanding anything contained in sub-rule (1), warrant for arrest of defaulter may be issued by Tax Recovery Officer if Tax Recovery Officer is satisfied, by affidavit or otherwise, that with object or effect of delaying execution of certificate, defaulter is likely to abscond or leave local limits of jurisdiction of Tax Recovery Officer. Page 11 of 25 C/SCA/12227/2019 JUDGMENT (3) Where appearance is not made in obedience to notice issued and served under sub-rule (1), Tax Recovery Officer may issue warrant for arrest of defaulter. [(3A) warrant of arrest issued by Tax Recovery Officer under sub-rule (2) or sub-rule (3) may also be executed by any other Tax Recovery Officer within whose jurisdiction defaulter may for time being be found.] (4) Every person arrested in pursuance of warrant of arrest under [this rule] shall be brought before Tax Recovery Officer [issuing warrant] as soon as practicable and in any event within twenty- four hours of his arrest (exclusive of time required for journey): Provided that, if defaulter pays amount entered in warrant of arrest as due and costs of arrest to officer arresting him, such officer shall at once release him. [ Explanation. For purposes of this rule, where defaulter is Hindu undivided family, karta thereof shall be deemed to be defaulter.] 17. Rule 82 reads as follows: Officers deemed to be acting judicially. 82. Every [Principal Chief Commissioner or] Chief Commissioner] or [Principal Commissioner or] Commissioner], Tax Recovery Officer or other officer acting under this Schedule shall, in discharge of his functions under this Schedule, be deemed to be acting judicially within meaning of Judicial Officers Protection Act, 1850 (18 of 1850). 18. Section 131 of Act, 1961 reads as follows: 131. Power regarding discovery, production of evidence, etc. (1) Assessing] Officer, Deputy commissioner (Appeals)], [Joint Commissioner] [Commissioner (Appeals)] [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Page 12 of 25 C/SCA/12227/2019 JUDGMENT Commissioner and Dispute Resolution Panel referred to in clause (d) of sub-section (15) of section 144C shall, for purposes of this Act, have same powers as are vested in court under Code of Civil same powers as are vested in court under Code of Civil Procedure 1908 (5 of 1908 ), when trying suit in respect of following matters, namely:- (a) discovery and inspection; (b) enforcing attendance of any person, including any officer of banking company and examining him on oath, (c) compelling production of books of account and other documents; and (d) issuing commissions. (1A) If Director General or Director or Deputy Director or Assistant Director, or authorised officer referred to in sub- section (1) of section 132 before he takes action under clauses (i) to (v) of that sub- section,] has reason to suspect that any income has been concealed, or is likely to be concealed, by any person or class of persons, within his jurisdiction, then, for purposes of making any enquiry or investigation relating thereto, it shall be competent for his to exercise powers conferred under sub- section (1) on income- tax authorities referred to in that sub- section, notwithstanding that no proceedings with respect to such person or class of persons are pending before him or any other income- tax authority. (2) For purpose of making inquiry or investigation in respect of any person or class of person in relation to agreement referred to in section 90 or section 90A, it shall be competent for any income tax authority not below rank of Assistant Commissioner of Income-Tax, may be notified by Board in this behalf, to exercise powers conferred under sub- section (1) on Income-Tax authorities referred to in that sub-section, notwithstanding that no proceedings with respect to such person or class of persons are pending before it or any other income-tax authority] (3) Subject to any rules made in this behalf, any Page 13 of 25 C/SCA/12227/2019 JUDGMENT authority referred to in sub- section (1) or sub- section (1A)] or sub-section (2) may impound and retain in its custody for such period as it thinks fit any books of account or other documents produced before it in any proceeding under this Act: Provided that [Assessing] Officer or Assistant Director]] or Deputy Director] shall not- (a) impound any books of account or other documents without recording his reasons for so doing, or (b) retain in his custody any such books or documents for period exceeding fifteen days (exclusive of holidays) without obtaining approval of [Principal Chief Commissioner or] Chief Commissioner or [Principal Director General or] Director General or [Principal Commissioner or] Commissioner or [Principal Director or] Director therefor, as case may be]] 19. Section 136 of Act, 1961 reads as follows: 136. Proceedings before income-tax authorities to be judicial proceedings:- Any proceeding under this Act before income- tax authority shall be deemed to be judicial proceeding within meaning of sections 193 and 228 and for purposes of section 196 of Indian Penal Code, 18603 (45 of 1860 ) and every income- tax authority shall be deemed to be Civil Court for purposes of section 195, but not for purposes of Chapter XXVI of Code of Criminal Procedure, 1973 (2 of 1974 )] 20. Section 222 of Income Tax Act, 1961 reads thus: Certificate to Tax Recovery Officer:- (1) When assessee is in default or is deemed to be in default in making payment of tax, Tax Recovery Officer may draw up under his signature statement in prescribed form specifying amount of arrears due from assessee (such statement being hereafter in this Chapter and in Second Schedule referred to as "certificate") and shall proceed to recover from such assessee amount specified in certificate by one or Page 14 of 25 C/SCA/12227/2019 JUDGMENT more of modes mentioned below, in accordance with rules laid down in Second Schedule (a) attachment and sale of assessee's movable property; (b) attachment and sale of assessee's immovable property; (c) arrest of assessee and his detention in prison; (d) appointing receiver for management of assessee's movable and immovable properties. Explanation For purposes of this sub-section, assessee's movable or immovable property shall include any property which has been transferred, directly or indirectly on or after 1st day of June, 1973, by assessee to his spouse or minor child or son's wife or son's minor child, otherwise than for adequate consideration, and which is held by, or stands in name of, any of persons aforesaid; and so far as movable or immovable property so transferred to his minor child or his son's minor child is concerned, it shall, even after date of attainment of majority by such minor child or son's minor child, as case may be, continue to be included in assessee's movable or immovable property for recovering any arrears due from assessee in respect of any period prior to such date.] (2) Tax Recovery Officer may take action under sub- section (1), notwithstanding that proceedings for recovery of arrears by any other mode have been taken. 21. Section 30 of CPC reads as follows: 30. Power to order discovery and like: Subject to such conditions and limitations as may be prescribed, Court may, at any time, either of its own motion or on application of any party,- (a) make such orders as may be necessary or reasonable in all matters relating to delivery and answering of interrogatories, admission of documents and facts, Page 15 of 25 C/SCA/12227/2019 JUDGMENT and discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by affidavit. 22. Section 32 of CPC reads as follows: 32. Penalty for default:-The Court may compel attendance of any person to whom summons has been issued under section 30 and for that purpose may- (a) issue warrant for his arrest; (b) attach and sell his property; (c) impose fine upon him 1[not exceeding five thousand rupees]; (d) order him to furnish security for his appearance and in default commit him to civil prison. 23. plain reading of Rule 83 makes it clear that tax Recovery Officer or other officer, acting under provisions of Schedule-II, are conferred with powers of Civil Court while trying suit for purpose of receiving evidence, administering oaths, enforcing attendance of witnesses and compelling production of documents. Section 136 of Act, 1961 further clarifies that proceedings before Income Tax Authorities are in nature of judicial proceedings. In aforesaid context, we may refer to observations of Madras High Court in case of G.V. Films Ltd. (supra). Mrs. R. Banumathi, J. (as her Ladyship then was) has observed as under: On behalf of plaintiff, it is mainly contended that Tax Recovery Officer has no jurisdiction to go beyond Page 16 of 25 C/SCA/12227/2019 JUDGMENT documents shown to him and cannot conduct any further enquiry. This contention has no substance. Tax Recovery Officer derives his powers under Second Schedule and Income-tax (Certificate Proceedings) Rules. Under Section 136, Income-tax Act, all proceedings before officer shall be judicial proceeding. Under Rule 82 of Second Schedule, every officer acting under this Schedule shall be deemed to be acting judicially within meaning of Judicial Officers Protection Act. Under Rule 83, every officer acting under Second Schedule shall have powers of civil court for purpose of receiving evidence. 24. Her Ladyship also took view that in exceptional cases, Court/Income Tax Department may be justified or entitled to lift veil of corporate entity and to pay regard to economic realities behind corporate entity. Tax Recovery Officer is entitled to disregard corporate entity if it is used for tax evasion or to circumvent tax obligation or to perpetrate fraud. 25. attempt on part of Mr. Shah in comparing Rule 73 with Rule 83 for purpose of making good his submission as regards power to compel personal attendance of writ applicant is, in our opinion, absolutely futile. Rule 73 is part of Part-V of Schedule-II. Para-V is with respect to arrest and detention of defaulter. On other hand, Rule 83 is within Para-VI of Schedule-II. Part-VI is miscellaneous. Once Rule 83 clarifies that Tax Recovery Officer or any other officer, acting under provision of Schedule-II, shall have powers of Civil Court while trying suit, it necessarily implies that by virtue of summons under Rule 83 of Second Schedule, Tax Recovery Officer can compel personal attendance of assessee/defaulter. Page 17 of 25 C/SCA/12227/2019 JUDGMENT 26. We take notice of fact that Schedule-II to Act prescribes procedure for recovery of tax. In fact, entire Schedule-II is with regard to procedure for recovery of tax. Section 222, referred to above, provides for certificate to Tax Recovery Officer. When assessee is in default or is deemed to be in default in making payment of tax, Tax Recovery Officer is empowered to recover, from such assessee, amount specified in certificate by attachment and sale of assessee's movable property and immovable property. Section 222 of Act also empowers Tax Recovery Officer with aid of rules laid down in Second Schedule to arrest assessee and detain him in prison. It also empowers Tax Recovery Officer to appoint receiver for management of assessee's movable and immovable properties. Thus, once recovery proceedings are initiated, same would be governed by provisions of Schedule-II of Act. In this regard, section 222 of Act should be read along with Rule 83 of Rules. It is case of Tax Recovery Officer that for purpose of proceeding further with recovery, it is necessary to collect relevant information and details as regards movable and immovable properties of writ applicant, and for that purpose, his presence is required. We are of view that it is too much for writ applicant to say that his personal attendance should not be insisted and that whatever information is required, same shall be furnished by him through his legal representative or his chartered accountant. 27. We are also not impressed by submission of Mr. Shah that as no proceedings could be said to be pending, as on date, before Income Tax Officer, who passed Page 18 of 25 C/SCA/12227/2019 JUDGMENT assessment order, summons under Rule 83 of Second Schedule to Act could not have been issued. assessment order came to be passed by Income Tax Officer. notice of demand under Rule 156 of Act was also issued by Income Tax Officer and sent along with order of assessment to writ applicant. Thereafter, next step in process is recovery. summons under Rule 83 of Second Schedule to Act has been issued by Tax Recovery Officer. recovery has to be undertaken in accordance with provisions of Schedule-II to Act. recovery proceedings are pending as on date before Tax Recovery Officer, and in connection with such pending recovery proceedings, summons under Rule 83 came to be served upon writ applicant. 28. We are also not impressed by submission of Mr. Shah that Rule 83 of Second Schedule to Act only talks about enforcing attendance of witnesses and not assessee himself. We may only say that when assessee appears before Tax Recovery Officer in response to such summons issued to him under Rule 83, he could be said to be witness. mere absence of word 'assessee' or 'defaulter' would not make any difference. It is always open for Tax Recovery Officer to seek necessary information from assessee himself and any other witness or witnesses, if any. 29. writ applicant has invoked extraordinary equitable jurisdiction of this Court under Article 226 of Constitution of India for purpose of questioning legality and validity of summons issued under Rule 83 of Second Schedule to Page 19 of 25 C/SCA/12227/2019 JUDGMENT Act. In such circumstances, we must also look into conduct of writ applicant. It is settled position of law that even if some action of quasi judicial authority is found to be not in accordance with law or without jurisdiction, still High Court may decline to grant any relief in exercise of its equitable jurisdiction under Article 226 of Constitution of India. Although, we do not find any illegality in issue of summons under Rule 83 of Second Schedule and thereby insisting for personal attendance of writ applicant, yet even if we believe that summons is illegal, conduct of writ applicant disentitled him to any relief. In case on hand, return of income was filed on 6th September, 2014 declaring total income of Rs.4,07,860/- along with computation of income, profit and loss account, balance sheet, tax audit report in Form No.3CB & 3CD etc. return was processed under Section 143(1) of Act. case was selected for scrutiny and notice under Section 143(2) was issued on 3rd September, 2015 and was served on writ applicant. notice under Section 142(1) was also issued on assessee dated 4th May, 2016 along with detailed questionnaire. At this stage, we quote relevant observations of Assessing Officer from order of assessment: Further, notice u/s. 142(1) was issued on 04.05.2016 along with detailed questionnaire, which was served on assessee. Thereafter, notice u/s. 142(1) were issued on 12.05.2016, 26.05.2016, 14.06.2016, 05.08.2016 & 04.10.2016 along with detailed questionnaire, which were served on assessee. However, in response to these notices neither assessee has made any request for adjournment nor filed any other submission. Further, show cause notice for penalty u/s.271(1)(b) of I.T. Act, 1961 for non compliance and notice u/s. 142(1) were Page 20 of 25 C/SCA/12227/2019 JUDGMENT issued on 13.10.2016, which were served on assessee. However, neither any compliance has been made nor any details furnished by assessee in response to said notices. Therefore, penalty of Rs.10,000/- has been levied in case of assessee by passing order u/s.271(1)(b) of I.T. Act, 1961 on 21.10.2016. Further, again show cause notice for penalty u/s. 271(1)(b) of I.T Act, 1961 for non compliance was issued on 21.10.2016, which was served on assessee. However, neither any compliance has been made nor any details furnished by assessee in response to said notice. Therefore, penalty of Rs.10,000/- has been levied in case of assessee by passing order u/s.271(1)(b) of I.T Act, 1961 on 02.12.2016. Vide above mentioned notices, assessee was requested to furnish details and information called for. However, neither any compliance has been made nor any details furnished by assessee in response to above mentioned notices till to date. Therefore, final opporunity of being heard was accorded to assessee to attend assessment proceedings personally or through representative duly authorized by him in this behalf along with information desired by department under notices issued u/s.143(2) & 142(1) of I.T Act, 1961 from time to time on or before 15.12.2016 vide show cause notice u/s. 144 dated 09.12.2016. said notice was served upon assessee on 12.12.2016. But again on date of hearing neither anybody attended nor filed any details/information. No adjournment was also sought for. It is evident from instances cited above that assessee has remained callous, non co-operative in assessment proceedings and has defied all statutory notices. Even till this date of order, assessee has not submitted any details, documents, information and etc. to name with. Inthese circumstances, no alternative has been left with undersigned than to proceed in assessment on merits of case and in manner laid down under provisions of section 144 of I.T Act, 1961. 30. operative part of assessment order reads thus: Page 21 of 25 C/SCA/12227/2019 JUDGMENT Assessed u/s.144 of I.T Act, 1961. Issued demand notice & challan after giving credit of prepaid taxes, if any, after verification. Charged interest u/s. 234A, 234B & 234C as applicable. Penalty notice issued u/s.271(1)(b) r.w.s 274 of I.T Ac, 1961 in respect of additions made as per Para 4,5,6 & 7 of order for cancelling particulars of income. 31. Thus, it appears that there was no cooperation worth name at end of writ applicant. 32. It is in aforesaid set of circumstances that Assessing Officer had to issue summons under Rule 83 of Second Schedule calling for necessary information for purpose of recovery of demand along with penalty. 33. We inquired with Mr. Shah, learned counsel appearing for writ applicant as to why his client is so reluctant to personally appear before respondent No.1. only reply that came was that respondent No.1 has no power to secure or enforce personal attendance of writ applicant on strength of summons under Rule 83 of Second Schedule. 34. At this stage, Ms. Bhatt, learned senior standing counsel appearing for respondents brought to our notice Division Bench decision of Orissa High Court in case of K.V. Mohamad vs. Sales Tax Officer Cuttack II East Circle Cuttack, reported in Laws (Ori) 1997 118. In said case, petitioner was registered dealer under provisions of Orissa Sales Tax Act, 1947 and Central Sales Tax Act, 1956 and he was assessed to tax for year 1989-90. petitioner was reassessed for period in Page 22 of 25 C/SCA/12227/2019 JUDGMENT question consequent upon receipt of report from Inspector of Sales Tax regarding suppression of purchase of betelnut from petitioner by one third party. petitioner therein appeared in reassessment proceedings. It appears that summons was issued through registered post which was returned back due to refusal and Assessing Authority treated such refusal as sufficient service. Assessing Authority proceeded to pass order of assessment. petitioner, being dissatisfied, came before High Court by way of writ petition. In such factual backdrop, Ms. Bhatt placed reliance on following observations made by High Court: It is not disputed that sales tax authorities are clothed with powers of civil court. Therefore, section 32 of Code of Civil Procedure will apply and this section give immense power to assessing authority to compel attendance/appearance of representative of concerned firm, M/s. Gopinath Store. We are not satisfied that by mere issuance of notice by registered post, assessing authority has discharged his obligation. It is duty of assessing authority to secure attendance of representative of concerned firm. Section 32 of Code of Civil Procedure empowers to issue warrant of arrest, attach and sell property and imposed fine. provision of section 32 is quoted below: 32. Penalty for default:-The Court may compel attendance of any person to whom summons has been issued under section 30 and for that purpose may- (a) issue warrant for his arrest; (b) attach and sell his property; (c) impose fine upon him 1not exceeding five thousand rupees; (d) order him to furnish security for his appearance and in default commit him to civil prison. Page 23 of 25 C/SCA/12227/2019 JUDGMENT We hold that assessing authority, which is quasi- judicial authority, has failed to exercise power contained in section 32 of Code of Civil Procedure. We hope assessing authority would act in accordance with Act and Rules and keep in mind that he has not only to act fearlessly but fairly while dealing with matters concerning interest of revenue of State. 35. In overall view of matter, we are convinced that no case is made out by writ applicant for purpose of getting impugned summons under Rule 83 of Second Schedule to Act, 1961 declared as illegal or erroneous in law. We hold that it is permissible for authority concerned to secure and enforce personal attendance of assessee/defaulter for purpose of necessary inquiry pursuant to summons under Rule 83 of Second Schedule to Act, 1961. To put it in other words, for effective and expeditious disposal of recovery proceedings, it is always permissible for Tax Recovery Officer to call for necessary and relevant information and conduct inquiry by securing and enforcing personal attendance of assessee/defaulter. 36. In result, this writ application fails and is hereby rejected. Notice is discharged. 37. We may clarify, at this stage, that it shall be open for writ applicant to ask his legal representative or chartered accountant to accompany him for purpose of appearing before respondent No.1. respondent No.1 shall permit writ applicant to remain personally present along with any of his legal representative or chartered accountant. We Page 24 of 25 C/SCA/12227/2019 JUDGMENT would also like to say that there should not be any unnecessary harassment to writ applicant. writ applicant is duty bound to cooperate in inquiry and furnish all necessary details or information to Tax Recovery Officer, but at same time, there should not be any unnecessary wait or detention in office. (J. B. PARDIWALA, J) (A. C. RAO, J) Vahid Page 25 of 25 Maulikkumar Vinodkumar Patel v. Tax Recovery Officer-4