JUGDMENT - Dr. B.P. SARAF, J.:---By this writ petition, the petitioners seek to challenge, the summons dated 2nd August, 1994 issued by the Income-Tax Officer (TDS) Circle-Thane and the summons dated 10th November, 1994 issued by the Income-tax Officer (TDS) 1, Pune "under section 131/37/36 of the Income-Tax Act, 1961 / Wealth-Tax Act, 1957/Gift Tax Act, 1958" directing the petitioner company to produce the books of accounts and documents as specified therein as also the notices issued to show cause for imposition of penalty for non-compliance of the same. It is stated in the above summonses that the books of accounts and documents were required in connection with proceedings "under the Income-Tax Act, 1961/Wealth Tax Act, 1957 /Gift Tax Act, 1958". The case of the petitioners is that the summonses issued are illegal and without jurisdiction because they are issued without any application of mind by the concerned Income Tax Officer which is evident from the fact that even the portions not applicable have not been struck off in the notices. It is also stated that no proceedings were pending before either of the two Income Tax Officers under any of the enactments mentioned in the summonses, which could have entitled him to issue summons for production of documents, etc. mentioned in the summons. It is also stated that the summonses were issued to make fishing enquiry in regard to non-deduction of tax at source by the assessee. It is also stated that none of the Income Tax Officer had jurisdiction to issue summons for that purpose, because if any enquiry was to be made in regard to non-deduction of tax at source by the petitioner company, none else than the Income Tax Officer who had jurisdiction in respect of the assessee could have done that.

2.When this writ petition came up for admission, notice before admission was issued to the respondents by this Court which was returnable on 16th December, 1994. Despite notice, no affidavit was filed by the respondents nor any of the contentions made by the petitioners were challenged even by producing the records. Under the circumstances, rule was issued and, by interim order dated 16th December, 1994, respondent No. 2, the Income Tax Officer (TDS) Circle-Thane and Respondent No. 3, the Income Tax Officer (TDS-1), Pune, were restrained from taking any steps in furtherance of the impugned summonses and letters. When the matter came up on board for hearing, it was noticed that no affidavit had been filed on behalf of the respondents. The respondents did not attend the hearing even through Counsel. The matter was adjourned to enable the revenue to attend the case. Now again the matter is on board for final hearing. So far as the revenue is concerned, the position remains the same. Neither there is any affidavit nor anybody appears for them.

3.We have heard Mr. G.S. Jetly, learned Counsel for the petitioners, who submits that issue of summonses in this case is wholly illegal and without jurisdiction in as much as no proceedings under the Income Tax Act or any of the other two enactments mentioned in the notice were pending before the two Income Tax Officers who had issued the same either in the matter of the assessee or any other person. Mr. Jetly also submits that there is gross misuse of power to issue summons. The learned Counsel pointed out that in the impugned summonses even the portions which are not applicable have not been struck off. It is contended that total non-application of mind before issue of summonses is glaring on the face of the summonses.

4. We have considered the above submissions. The two summonses which are subject matter of challenge in this case are set out below:

"Summons to Assessee/Witnesses under section 131/37/36 of the Income Tax Act, 1961/Wealth-Tax Act, 1957/Gift Tax Act, 1958.

P.A. No.--- Office of the Income Tax Officer Dated TDS Circle, Thane, Dt. 2/8/94

To,

G.M. Brewereies Ltd.

S. Veer Savarkar Marg,

Virar (E), Dist. Thane.

Whereas your attendance is required in

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