Compelling attendance of witnesses disobedience of summons under Section 131 of IT Act, 1961 - Income Tax - F. No. 58/46/66-IT(Inv.)

F. No. 58/46/66-IT(Inv.) Circular No. 31-D(XL-67) of 1966 Government of India, Central Board of Direct Taxes. New Delhi, Dated : 23rd Nov., 1966 Sub : Compelling attendance of witnesses disobedience of summons under Section 131 of IT Act, 1961 Instructions regarding. The Board has noticed that in recent years the ITO has not fully or properly utilised the power for compelling attendance of witness, which are conferred on them under Section 131 of the IT Act, 1961. To enable the ITO to correctly appreciate and apply the legal Provisions in this regard, the following instructions are being issued. 2. Under Section 131 of IT Act, 1961 for the purpose of compelling the attendance of any person, the ITO have the same powers as vested in a Civil Court under the case of Civil Procedure, 1898. The powers of the Civil Court for summoning attendance of witness are laid down in Order 16 of the First Schedule to the CPC, 1898 Rules 18, 11 and 12 of Order 16 prescribe the powers and procedure for compelling the attendance of witness. These powers, which are exercisable also by the ITOs under Section 131 are as under: (i) where a person to whom a summons to attend or produce a document has been issued has not obeyed, the ITO should examine the serving officer on oath or cause him to be as examined by another officer touching the service or non-service of the summons. Such examination is compulsory if the certificate of the serving officer has not been verified by an affidavit and is optional if it has been as verified. (ii) If the ITO, has reason to believe that such evidence or productions material and that the person summoned has, without lawful excuse, failed to attend or procure the document in compliance with such summons or has intentionally avoided service, he may issue a proclamation requiring such person to the time and place named therein. A copy of the proclamation should be affixed on the outer door or other conspicuous part of the house in which the person ordinarily resides. (iii) Under Sub-rule (3) of the Rule 19 in lieu of or at the time of issuing such proclamation of at any time afterwards the ITO has also discretion to issue a warrant with or without bail for the arrest of such person and for making an order for the attachment of his property for such amount as he thinks fit. (iv) The property should be released from attachment if the witness appears and satisfies the ITO that he had not without lawful cause, failed to comply with the summons or intentionally avoided his services or that he has no notice of the proclamation in time to attend. (v) Under Rule 12 of Order 16, the ITO has also the powers to impose upon the person, who does not appear or appears but fails, to satisfy him as above, to impose upon him such fine not exceeding Rs.500 as he thinks fit having regard to such persons conditions in life and all the circumstances of the case. (vi) It should be noted that, under Sub-section 2 of Section 131 of the IT Act, 1961,the ITO has a similar power to impose a fine not exceeding Rs.500 in case where the person summoned intentionally omits to attend or produce the books of account and documents at the place and time named. (vii) The warrant for arrest or the order for attachment may be made according to the procedure laid down for the Civil Courts. In matters of doubt the local Government pleader may be consulted. (viii) Disobedience of the summons to attend renders the person summoned liable to prosecution under Section 174 of the IPC. In this connection, the ITO should bear in mind the provisions of Section 195(1)(a) of the Cr. PC case, 1898. Under which the complaint, in writing of the public servant concerned(ITO)or of some other public servant to whom he is subordinate (e.g. the IAC or the CIT) is necessary to enable the Court to take cognizance of the evidence. 3. The relevant rules of the CPC, 1898 and the provisions of Section 174 of the IPC and Section 195(1)(a)of the Cr.PC are given in the Annexure. Sd/- G.R. Hedde, Secretary, Central Board of Direct Taxes