1980 (2) TMI 49

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....harge the income-tax liabilities of the Madan Mohan Dhamma Mal and its five partners, Ferozabad Glass and Chemical Industries Ltd., M/s. Kumar Pharmaceutical Works Private Ltd., and Madan Mohan Dhamma Mal Trust Society. The petitioners came to this court with the allegation that the ITO, "A" Ward, Ferozabad, forwarded recovery certificates in respect of the dues of the aforementioned parties to the TRO. The TRO issued a notice to the petitioners requiring them to show cause why they should not be committed to civil prison, in execution of the recovery certificates issued by the ITO. The notice was served on the petitioners on 2nd March, 1916, and they were asked to appear before the TRO on 5th March, 1976. The petitioners appeared before th....

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....certificate. The Second Schedule to the I.T. Act contains the rules relating to the procedure for recovery of tax. Rule 73 thereof provides that no order for the arrest and detention in civil prison of a defaulter shall be made unless the TRO has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison, and unless the TRO, for reasons recorded in writing, is satisfied, (a) that the defaulter with the object or effect of obstructing the execution of the certificate, has, after the receipt of the certificate in the office of the TRO, dishonestly transferred, concealed, or removed any part of his property, or (....

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....s not been denied. As admittedly the petitioners had put in appearance before the TRO on the date mentioned in the show-cause notice, prima facie there was no occasion for the TRO to issue a warrant for the petitioner's arrest on 26th March 1976, in exercise of the powers conferred by sub-rr. (2) and (3) of r. 73. We find that there is substance in the submission made by the learned counsel for the petitioners. A perusal of the rules contained in the Second Schedule clearly shows that once the defaulter has appeared in response to the notice under r. 73(1) before the TRO, he is not to be arrested or detained in civil prison unless either the enquiry, contemplated by r. 74, is over, or the conditions mentioned in sub-rr. (2) and (3) of r.....