Thursday, 14 November 2013

Whether provisions of Sec 133(6) vest powers in AO to indulge in fishing information of general nature and there is no need for assessee to cooperate only if there is assessment pending - YES: SC

THE issues before the Bench are - Whether provisions of Sec 133(6) vest powers in Assessing Officers to indulge in fishing information of general nature and there is no need for assessee to cooperate only if there is any assessment proceeding pending; Whether power to gather information u/s 133(6) applies to specific areas only; Whether issue of notice for collecting information u/s 133(6), without the approval of Commissioner is valid and Whether enquiry of general nature can also be made by issuing such a notice. And the verdict favours the Revenue.
Facts of the case

Assessee is a Service Co-operative Rural Bank. The Income Tax Officer (ITO)(CIB), Calicut issued a notice to the assessee u/s 133(6) calling for general information regarding details of all persons (whether resident or non- resident) who have made (a) cash transactions (remittance, transfer, etc.) of Rs. 1,00,000/- and above in any account and/or (b) time deposits (FDs, RDs, TDs, etc.) of Rs. 1,00,000/- or above for the period of three years between 01.04.2005 and 31.03.2008, dated 02.02.2009. It was expressly stated that the failure to furnish the aforesaid information would attract penal consequences. The assessee objected to the said notice on grounds that such a notice seeking information which was unrelated to any existing or pending proceeding against the assessee could not be issued under the provisions of the Act and requested for withdrawal of the said notice by its letter-in-reply, dated 26.02.2009.

The AO addressed to the objections raised by the assessee and accordingly rejected them. Assessee, aggrieved by the aforesaid, filed Writ challenging the aforesaid notice. The Single Judge discussed the case of assessee including the submissions made by the parties in extenso and reached the conclusion that the impugned notice was validly issued under the provisions of the Act and therefore, dismissed the said petition. Thereafter, the assessee approached the Division Bench of HC by way of Writ questioning the said notice on grounds, that the issuance of such notice u/s 133(6) was bad in law as Section 133(6) only provides for power to seek information in case of pending proceedings under the Act and does not contemplate the powers to seek fishing information which was unrelated to any existing proceedings or which may enable the AO to decide upon institution of proceedings under the Act. The Division Bench observed that the questions raised were no longer res integra in view of the decision of HC in Karnataka Bank Ltd. v. Secretary, Government of India and Ors.,(2002-TIOL-764-SC-IT) and accordingly, dismissed the said appeal.

On appeal, the Apex Court held that,

++ it is the case of the assessee that though this Court in Karnataka Bank case has considered the powers of respondent-authorities to issue notice under Section 133(6) but has not considered as to whether the said provision clothes the respondent-authorities with any power for conducting a roving or fishing enquiry into the affairs of the assessee or regarding the deposits made by its customers. Further, that this Court has considered only "case specific" or "area specific" information sought under Section 133(6). Counsel for the assessee would therefore submit that the High Court has erred by not appreciating the decision of this Court in Karnataka Bank case and erroneously dismissed the case of similarly placed banks. Au contraire Solicitor General for the Assessing Authority, would support the impugned judgment and order and contend that for the purposes of enquiry under the provisions of the Act, the Assessing Authority can issue such notice under the said Section;

++ since the language of the Section 133(6) is wholly unambiguous and clear, reliance on interpretation of statutes would not be necessary. Before the introduction of amendment to Section 133(6) in 1995, the Act only provided for issuance of notice in case of pending proceedings. As a consequence of the said amendment, the scope of Section 133(6) was expanded to include issuance of notice for the purposes of enquiry. The object of the amendment of section 133(6) by the Finance Act, 1995 (Act 22 of 1995) as explained by the CBDT in its circular shows that the legislative intention was to give wide powers to the officers, of course with the permission of the CIT or the Director of Investigation to gather general particulars in the nature of survey and store those details in the computer so that the data so collected can be made use of for checking evasion of tax effectively. The assessing authorities are now empowered to issue such notice calling for general information for the purposes of any enquiry in both cases: (a) where a proceeding is pending and (b) where proceeding is not pending against the assessee. However in the latter case, the assessing authority must obtain the prior approval of the Director or Commissioner, as the case maybe before issuance of such notice. The word "enquiry" would thus connote a request for information or questions to gather information either before the initiation of proceedings or during the pendency of proceedings; such information being useful for or relevant to the proceeding under the Act;

++ this Court in Karnataka Bank Ltd. v. Secretary, GOI and Ors.,(2002-TIOL-764-SC-IT) has examined the proposition whether a notice under Section 133(6) could be issued to seek information in cases where the proceedings are not pending and construed Section 133(6) of the Act. The petitioner therein was a financial institution which had impugned the notice issued under section 133(6) on grounds that the notice requiring furnishing of information in respect of its customers regarding payment of loans when no enquiry was pending was not envisaged by the said sub- section. This Court has observed that mere from the reading of the said provision that it is not necessary that any inquiry should have commenced with the issuance of notice or otherwise before Section 133(6) could have been invoked. It is with the view to collect information that power is given under Section 133(6) to issue notice, inter alia, requiring a banking company to furnish information in respect of such points or matters as may be useful or relevant. The second proviso makes it clear that such information can be sought for even when no proceeding under the Act is pending, the only safeguard being that before this power can be invoked the approval of the Director or the Commissioner, as the case may be, has to be obtained;

++ in view of the aforesaid, we are of the view that the powers under section 133(6) are in the nature of survey and a general enquiry to identify persons who are likely to have taxable income and whether they are in compliance with the provisions of the Act. It would not fall under the restricted domains of being "area specific" or "case specific." Section 133(6) does not refer to any enquiry about any particular person or assessee, but pertains to information in relation to "such points or matters" which the assessing authority issuing notices requires. This clearly illustrates that the information of general nature can be called for and names and addresses of depositors who hold deposits above a particular sum is certainly permissible;

++ in the instant case, by the impugned notice the assessing authority sought for information in respect of its customers which have cash transactions or deposits of Rs. 1,00,000/- or above for a period of three years, without reference to any proceeding or enquiry pending before any authority under the Act. Admittedly, in the present case notice was issued only after obtaining approval of the Commissioner of Income Tax, Cochin. In light of the aforesaid, we are of the considered opinion that the Assessing Authority has not erred in issuing the notice to the assessee-financial institution requiring it to furnish information regarding the account holder with cash transactions or deposits of more than Rs. 1,00,000/-. Therefore, we hold that the Division Bench of the High Court was justified in its conclusion that for such enquiry under Section 133(6) the notice could be validly issued by the Assessing Authority. In view of the above, the appeal requires to be dismissed and accordingly, stands dismissed. In view of the order passed in Civil Appeal No.7460 of 2013 @ S.L.P.(C) No.3976 of 2010 above, all these appeals also stands dismissed.
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