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Sarju Prosad Sharma Vs. Income-tax Officer, d Ward and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberMatter No. 456 of 1972
Judge
Reported in[1974]93ITR36(Cal)
ActsIncome Tax Act, 1961 - Section 131; ;Code of Civil Procedure (CPC) , 1908
AppellantSarju Prosad Sharma
Respondentincome-tax Officer, "d" Ward and ors.
Excerpt:
- .....present proceedings is a summons under section 131 of the income-tax act, 1961, calling upon sri sarju prosad sharma of 246-c, vivekananda road, calcutta, under section 131 of the income-tax act, 1961, to attend personally at the office of the income-tax officer, 'd' ward, dist. ii(i), calcutta, on february 25, 1972, at 12-30 p.m. to give evidence and to produce either personally or through an authorised representative the books of account and other documents specified on the reverse of the said summons. pursuant to the said notice the said sarju prosad sharma, the witness named in the said summons, duly attended. trouble arose when the authorised representative of the assessee partnership firm sought to interpret the questions and answers which were put from english to hindi and from.....
Judgment:

Ghosh, J.

1. The impugned notice in the instant case which is sought to be set aside by the issue of a writ in the nature of mandamus in the present proceedings is a summons under Section 131 of the Income-tax Act, 1961, calling upon Sri Sarju Prosad Sharma of 246-C, Vivekananda Road, Calcutta, under Section 131 of the Income-tax Act, 1961, to attend personally at the office of the Income-tax Officer, 'D' Ward, Dist. II(I), Calcutta, on February 25, 1972, at 12-30 p.m. to give evidence and to produce either personally or through an authorised representative the books of account and other documents specified on the reverse of the said summons. Pursuant to the said notice the said Sarju Prosad Sharma, the witness named in the said summons, duly attended. Trouble arose when the authorised representative of the assessee partnership firm sought to interpret the questions and answers which were put from English to Hindi and from Hindi to English, respectively. The case of the respondent, Income-tax Officer, is that the said authorised representative was not properly interpreting and as such he refused to allow him to act as the interpreter. Thereafter, the said Income-tax Officer served a notice upon the said Sri Sarju Prosad Sharma. The said notice was dated November 28, 1972. By the said notice the said Income-tax Officer informed the petitioner that he had decided not to allow Sri Singh to be present as authorised representative at the examination of the said Sri Sarju Prosad Sharma or to act even as an interpreter. The Income-tax Officer relied on Sub-section (1) of Section 288 read with Section 131 of the Income-tax Act, 1961, in making the aforesaid order.

2. In the instant case the firm, Messrs S. P. Sharma, is the assessee. The said firm was dissolved and any of the partners may be fastened with the liability of the dissolved firm. Sarju Prosad Sharma was a partner of the firm when in existence, but the aforesaid summons dated February 11, 1972, was not served upon Sarju Prosad Sharma as an assessee but only us a witness. In the premises, Sarju Prosad Sharma, in my opinion, has no right to be represented in the said examination by an authorised representative. Powers of the Income-tax Officer to direct appearance of witnesses or production of books by them or through their authorised representatives have been laid down in Section 131 of the Act. The said powers, it seems, are co-terminous with the powers of a civil court under the Code of Civil Procedure.

3. A witness has no right to be represented in a proceeding by a lawyer or an authorised representative. So, it seems to me that Sarju Prosad Sharma when he appears before the said Income-tax Officer in terms of the summons dated February 11, 1972, has no right to be represented by anauthorised representative but the proceeding before the said Income-tax Officer is nonetheless a proceeding for assessment of the assessee-firm, Messrs S. P. Sharma. The assessee-firm certainly has the right which it cannot be deprived of, in my opinion, to be present when any proceeding in regard to its assessment goes on or takes place. Thus, the said firm has the right to be represented by an authorised representative at the assessment proceeding including examination of the said Sarju Prosad Sharma under Section 131 of the Act.

4. The appointment of an interpreter is certainly a matter which rests with the judicial or quasi-judicial authority. In the instant case, therefore, the appointment of an interpreter lies within the power of the Income-tax Officer. The Income-tax Officer may allow the said witness, Sarju Prosad Sharma, to engage an independent interpreter or may appoint an interpreter of his own for the purpose of examining the said Sarju Prosad Sharma.

5. In the premises, the rule nisi is made absolute only on the terms mentioned aforesaid, that is to say, the said impugned notice, i.e., letter dated November 28, 1972, shall stand set aside so far as it purports to disallow the attendance of any authorised representative on behalf of the assessee-firm.

6. The rule nisi is made absolute to the aforesaid extent. Each party shall pay and bear his or its own costs of and incidental to this application. All interim orders shall stand vacated.


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