Section 133- power to call for information- an analysis

[CA DEV KUMAR KOTHARI]

Provision : Section 133 of Income Tax Act, 1961.

Relevant provision from the Income-tax Act, 1961	Major points
Power to call for information.
133.   The [Assessing] Officer, the Deputy Commissioner (Appeals),the Joint Commissioner or the Commissioner Appeals may, for the purposes of this Act,-	The provision is not mandatory but discretionary. It is to achieve purposes of the Act, that concerned authority can call for information from specified persons. Therefore, before calling for information there must be some application of mind, so as to ensure that the information called for is relevant for the purposes of the Act..
(1) require any firm to furnish him with a return of the names and addresses of the partners of the firm and their respective shares ;	Any firm can be asked to furnish information about partners- name, address and respective share.	Information can be called  as a return
(2) require any Hindu undivided family to furnish him with a return of the names and addresses of the manager and the members of the family ;	Any HUF can be asked to furnish information about manager and members of the HUF- name and address.	Information can be called  as a return
(3) require any person whom he has reason to believe to be a trustee, guardian or agent, to furnish him with a return of the names of the persons for or of whom he is trustee, guardian or agent, and of their addresses ;	In this case if authority has reason to believe that any person is a trustee, guardian or agent then he can require any such person to furnish details of names and addresses of persons for or of whom he is trustee, guardian or agent.	Information can be called  as a return
(4) require any assessee to furnish a statement of the names and addresses of all persons to whom he has paid in any previous year rent, interest, commission, royalty or brokerage, or any annuity, not being any annuity taxable under the head "Salaries" amounting to more than 5[one thousand rupees, or such higher amount as may be prescribed], together with particulars of all such payments made ;	Here requirement can be from any assessee. This means that the authority must have relationship of  AO with the concerned person as assessee. Therefore, this sub-section (4) can be said applicable only in case of the AO who can ask his assessee to furnish any of information as specified in this sub-section. On reading of the list of information which can be asked, also it seems that this sub-section is for AO only and that too in relation to his assessee and not any other person.	A statement of information
(5) require any dealer, broker or agent or any person concerned in the management of a stock or commodity exchange to furnish a statement of the names and addresses of all persons to whom he or the exchange has paid any sum in connection with the transfer, whether by way of sale, exchange or otherwise, of assets, or on whose behalf or from whom he or the exchange has received any such sum, together with particulars of all such payments and receipts ;	Use of words  ‘any dealer, broker or agent or any person concerned in the management of a stock or commodity exchange’ suggests that enquiry can be made from dealer, broker , agent or any person concerned with stock or commodity exchange. It seems not applicable to any other dealer or broker or agent.	A statement of information
(6) require any person, including a banking company or any officer thereof, to furnish information in relation to such points or matters, or to furnish statements of accounts and affairs verified in the manner specified by the 6[Assessing] Officer, the 7[Deputy Commissioner (Appeals)]  8[, the  9[Joint Commissioner] or the Commissioner (Appeals)], giving information in relation to such points or matters as, in the opinion of the  10[Assessing] Officer, the  11[Deputy Commissioner (Appeals)] 12[, the  13[Joint Commissioner] or the Commissioner (Appeals)], will be useful for, or relevant to, any 14[enquiry or] proceeding under this Act :	This sub-section is related to enquiry which can be made from any person, including banking company or any officer of banking company. The words ‘any person’ is undoubtedly wide. However, the persons specified in sub-sections 1-5 must be excluded. Information which will be useful or relevant to any enquiry or proceedings under the Act can be called.	A statement of Information
15[Provided that the powers referred to in clause (6), may also be exercised by the 18[Principal Director General or] Director-General, the 18[Principal Chief Commissioner or] Chief Commissioner, the 18[Principal Director or] Director and the 18[Principal Commissioner or] Commissioner :]	Authorities mentioned in the proviso can also exercise power for enquiries and calling of information under sub-section (6)
16[Provided further that the power in respect of an inquiry, in a case where no proceeding is pending, shall not be exercised by any income-tax authority below the rank of 18[Principal Director or] Director or 18[Principal Commissioner or] Commissioner without  the prior approval of the 18[Principal Director or] Director or, as the case may be, the 18[Principal Commissioner or] Commissioner.]	In case where any proceeding is not pending, power in respect of enquiry can be exercised only by senior authorities mentioned in this proviso. Any other authority can exercise such power only with prior approval of senior authorities mentioned in the proviso.
17[Provided also that for the purposes of an agreement referred to in section 90 or section 90A, an income-tax authority notified under sub-section (2) of section 131 may exercise all the powers conferred under this section, notwithstanding that no proceedings are pending before it or any other income-tax authority.]	In respect of agreement with foreign countries ( S.90) and agreements adopted by the central Government (S.90A) in relation to double taxation relief, authority  notified u/s. 131 (2) can make enquiry  even if any proceeding is not pending.

Observations of author:

From the above table which contain provision in first column with highlights for analysis and major points in second column we find that each sub-section is having scheme about persons from who enquiry can be made and nature of enquiry can be made. The enquiry will be by way of calling of information as mentioned in respective provisions.

Therefore, the enquiry or calling of information should be strictly as per scope and manner prescribed in the provisions.

Rules and forms:

Surprisingly there seems no  specific Rule and prescribed Forms  prescribed for calling of Return or information u/s 133 and furnishing of such return or information by the noticees ( assessee or specified or other persons).

It is desirable that Rules and Forms must be provided so that enquiry and calling of information and furnishing of information can be in a standard manner which will provide meaningful manner of collection f information.

Calling of information in view of information in possession of authority:

When an authority has information in his possession and want further information from assessee or any other person in relation to information already in possession of concerned authority, then the concerned authority must provide information and source of information to the assessee or other party for calling for further information either for verification, cross verification or any other purposes of the Act.

Without mentioning the information in possession and making further enquiry or calling of information will amount to making roving enquiry.

There is no harm if the information already in possession of authority is shared with the noticee and further relevant information is sought. This will ensure to the point and relevant enquiry and collection of information instead of making roving enquiry.