| Question And Answer | |
|---|---|
| Subject: | 131/131[1A] |
| Category: | Income-Tax |
| Querist: | BS |
| Answered by: | Advocate Neelam Jadhav |
| Tags: | beyond 500 kms, Summons |
| Date: | March 28, 2023 |
can AO call any witness personally even if he stays beyond 500 km ?
If yes, what are conditions ?
Section 131 (1A) empowers the Assessing Officer to issue summons for the purpose of making any enquiry or investigation under the Income-tax Act and to enforce the attendance of any person or for compelling the production of any books of account or other documents with powers which are vested in a Court under the Civil Procedure Code, 1908.
As per Rule 19 of Order XVI of the Civil Procedure Code, Summons can be issued only where the witness resides within 500 Km i.e. beyond 200 miles. When the witness resides beyond prescribed limits, only a commission can be issued. When the application is made, the AO has to issue the commission. It is the duty of the Assessing Officer to comply with the request of the assessee to produce a witness- Civil Procedure Code, 1908, O.XVI, R.10
Rule 19 of Order XVI made provision as No one shall be ordered to attend in person to give evidence unless he resides-
(a) within the local limits of the Court’s ordinary original jurisdiction, or
(b) without such limits but at a place less than one hundred or where there is railway or steamer communication or other. Established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situated less than 81[five hundred kilometres] distance from the court-house.
Even if the presence of a witness is required, then the CPC provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.
The alternative remedy is that the assessee may request for the issue of the commission under section 131 of the Act read with rules 1 to 8 of Order XXVI of the Code of Civil Procedure may at the request of the assessee be issued to the Assessing Officer having jurisdiction over the place where the witness carries on business or resides. In Anis Agmad & Sons v. CIT(A) (2008) 297 ITR 441 (SC) held that the non-appearance of five traders who were outside the State and from their non -appearance no adverse inference could be drawn by the Authorities Against the assessee.
In International Planned Parenthood Federation (IPPF) v Madhu Bala Nath AIR 2016 DELHI 71 the Court considering Order XVIII Rules 3 & 4 of the Code of Civil Procedure permitted the recording of the statement of a witness through video conferencing.