TRO can order personal summons & Assessee can appear with consultant

In this case it was held that TRO has powers to order personal summons, Penadancy of recovery proceedings before TRO entitles invoking of  Section 131, Requirement of Rule 83 of Schedule II and S. 131 requiring attendance of witness gets fulfilled when assesse appears before TRO. Absence of words “assesse” or “defaulter” does not make difference, Assessee can’t plead against personal summons that his personal attendance should not be insisted and that whatever information is required may be furnished through his authorized representative, It is open for assesse to ask his CA or advocate to appear along with him in personal summons. and There should not be unnecessary wait or detention in the office.

26. We take notice of the fact that Schedule-II to the Act prescribes the procedure for recovery of tax. In fact, the entire Schedule-II is with regard to the procedure for recovery of tax. Section 222, referred to above, provides for certificate to the Tax Recovery Officer. When an assessee is in default or is deemed to be in default in making a payment of tax, the Tax Recovery Officer is empowered to recover, from such assessee, the amount specified in the certificate by attachment and sale of the assessee’s movable property and immovable property. Section 222 of the Act also empowers the Tax Recovery Officer with the aid of the rules laid down in the Second Schedule to arrest the assessee and detain him in prison. It also empowers the Tax Recovery Officer to appoint a receiver for the management of the assessee’s movable and immovable properties. Thus, once the recovery proceedings are initiated, the same would be governed by the provisions of Schedule-II of the Act. In this regard, section 222 of the Act should be read along with Rule 83 of the Rules. It is the case of the Tax Recovery Officer that for the purpose of proceeding further with the recovery, it is necessary to collect relevant information and details as regards the movable and immovable properties of the writ applicant, and for that purpose, his presence is required. We are of the view that it is too much for the writ applicant to say that his personal attendance should not be insisted and that whatever information is required, the same shall be furnished by him through his legal representative or his chartered accountant.

27. We are also not impressed by the submission of Mr. Shah that as no proceedings could be said to be pending, as on date, before the Income Tax Officer, who passed the assessment order, the summons under Rule 83 of the Second Schedule to the Act could not have been issued. The assessment order came to be passed by the Income Tax Officer. The notice of demand under Rule 156 of the Act was also issued by the Income Tax Officer and sent along with the order of assessment to the writ applicant. Thereafter, the next step in the process is the recovery. The summons under Rule 83 of the Second Schedule to the Act has been issued by the Tax Recovery Officer. The recovery has to be undertaken in accordance with the provisions of Schedule-II to the Act. The recovery proceedings are pending as on date before the Tax Recovery Officer, and in connection with such pending recovery proceedings, the summons under Rule 83 came to be served upon the writ applicant.

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