The central legal point established is that the Income Tax Officer cannot issue notices for information under section 133(6) of the Income Tax Act, 1961 when no proceeding is pending against the assessee, even after the amendment in 1995.

( 1 ) IN this appeal, the appellant has challenged the impugned judgment of the learned single Judge of this Court passed on 25th January,1990.

( 2 ) THE appellant is a Banking Company within the meaning of the Banking Regulation Act,1949. On 18th July 1989, the appellant received a letter dated 16th July, 1979 from the respondent No. 1 wherby the Respondent No. 1 required the appellant to furnish certain particulars of payments on account of furlough pay, in the financial years 1968-69 to 1976-77 and the relevant assessment years being 1969-70 to 1977-78 made outside India.

( 3 ) ON 13th August, 1979 the appellant again received another letter dated 10th August, 1979 from the Respondent No. 1 wherein it has been mentioned that the letter dated 16th July, 1979 be treated as made under section 133 (6) of the Income Tax Act, 1961 and reminded that the required information to be furnished within 5 (five) days from the date of receipt of the letter dated 10th August, 1979.

( 4 ) BY a letter dated 16th August, 1979, the appellant has informed the respondent No. 1 that this type of information can be furnished under section 133 (6) of the Act, only when any proceeding is pending under the Act and as on proceeding is pending under the Act, the petitioner/appellant is not bound to furnish such information. Again, the appellant received a letter dated 21st August, 1979 wherein it has been mentioned that the appellant has failed to discharge the obligation under section 192 (1) of the Act and section 200 of the Act. Therefore, the proceedings under sections 201 (1)/221 and 201 (1a) of the Act are attracted.

( 5 ) THE appellant by a writ petition under Article 226 of the Constitution of India has challenged the notices under section 133 (6) of the Act. The learned single Judge of this Court vide his order dated 25th January, 1990 finds no merit in the writ-petition, the Rule is discharged and all interim orders and vacated.

( 6 ) THE learned counsel appearing for the appellant submits that there are decisions in favour of the appellant directly, specially he refers the decision of Bombay High Court in the case of D. B. S. Financial Services Private Ltd. v. Smt. George, 2nd Income Tax Officer and Ors. reported in 207 ITR 1077.

( 7 ) DR. Pal, learned counsel for the appellant further brought to our notice that even the Bombay High Court has also considered the decision of this Court in the case of Dwijendra Lal Brahmachari v. New Central Jute Mills Co. Ltd. (1978) 112 ITR 568 wherein the provision of section 131 (1) of the Act has been considered and in that case the Court has observed that, power under section 131 (1) can be exercised only for the purpose of deciding the case pending before him. He also further brought to our notice the provision of section 133 (6)of the Act which has been amended in 1995 by inserting word "enquiry" in sub-section (6) of section 133.

( 8 ) WE perused the impugned order. In fact, no reason has been given in the impugned order that whether Income Tax Officer can seek information under section 133 (6), even in a case, where the proceeding is not pending. In 1995,when the word "enquiry" was inserted in sub-section (6), they have inserted provision 2 also which provides that in respect of an enquiry, in a case, no proceeding is pending, shall not be exercised by any Income Tax Authority below the rank of Director or Commissioner without the prior approval of the Director or as the case may be the Commissioner. It further clarifies that income Tax Officer had no power to issue notice for any information to any person when the proceeding is not pending, even after 1995. If any Authority below the rank of Commissioner or Director wants any information from any person, he shall seek permission from the Director or Commissioner, in cases of enquiry.

( 9 ) IT is admitted fact that no proceeding was pending against the assessee when the notices were issued. In view of the amendment of sub-sec