TaxTMI 
TaxTMI 
2025 (12) TMI 562
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....etitioner to be represented through Counsel in response to Summons. 2. Brief facts of the case are that Petitioner, who is a Canadian Citizen, aged 53 years, is a house-wife and resides with her husband Shri Harish Gahllot at D-1/1001, Vasant Kunj, New Delhi. On 10.10.2018 at 12:09 PM, various persons claiming to be from the Income Tax Department, visited her property bearing H.No. F-8/15, 3rd Floor, Vasant Vihar, New Delhi, where Petitioner's son resides along with his wife in a rented accommodation. At that time, Petitioner's younger son, aged 22 years and studying in Dubai, was visiting the family and staying with his brother. 3. The officials virtually ransacked the premises and started giving grave threats to overawe and browbeat the Petitioner's elder son, his wife and Petitioner's younger son. Petitioner's daughter-in-law, who was at home, was also not allowed to leave the premises. Pertinently, no lady official was accompanying the said Income Tax Officials on that day. Petitioner's son and others were virtually under a house arrest as none of them were allowed to move out. The said officials left the premises in the wee hours on 13.10.2018. 4. The Respondent issue....
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....again compelling the Petitioner to attend to the Office personally for recording of her statement. 10. The Respondent had rejected the Petitioner's request to record her statement at her residence on a misconceived basis, by placing reliance on Judgment dated 24.04.2018 passed by Hon'ble Madras High Court in the case of Nalini Chidambaram vs. Directorate of Enforcement & Ors., 2018 (2) MLJ (Crl) 430. Further request of the Petitioner to furnish documents made in the letter dated 06.12.2018, was not even referred to in the said Letter/Communication dated 12.12.2018. 11. In response to the third Summons, Petitioner again wrote a Letter dated 13.12.2018 to the Respondent reiterating correct proposition of law. However, no response has been received by her. 12. The summons issued by the Respondent, have been challenged on the ground that no personal appearance of the Petitioner, who is a woman, can be insisted in the Office of the Respondent. Section 160(1) Cr.P.C. clearly states that no woman, whose presence is required as a witness, shall be required to attend any place for such purpose other than the place in which such woman resides. 13. Section 4 Cr.P.C. deals with the....
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....extended. Furthermore, the said judgment is distinguishable insomuch as it is in the context of Prevention of Money Laundering Act (hereinafter 'PMLA'), which is completely different from the FEMA. Therefore, no reference can be made to the said judgment. 19. Petitioner has shown full cooperation and has already submitted the documents sought for by the Respondent. Moreover, her request to supply her with the entire material/documents, which has led the Respondent to issue summons in question, has not been dealt with by the Respondent at all. No fair opportunity has been given to her in regard to recording of her statement effectively, but she is being compelled to give her personal appearance at the Office of Respondent. 20. All the documents relied upon by the Respondent must be provided to the Petitioner in consonance with the procedure established by law and as contemplated under Article 21 of the Constitution of India, so as to enable her to make her statement effectively. This is to enable a person to exercise his right to remain silent under Article 20 of the Constitution of India. Denial of such request would thus, constitute violation of the Fundamental Rights under ....
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....becomes applicable whereby a woman is exempted from appearing in a Police Station for recording the evidence. 28. This raises the question of the applicability of Cr.P.C., to the summons issued under 37 FEMA. 29. S. 37 FEMA is found in Chapter VI titled "Directorate of Enforcement", which confers investigative powers upon designated Enforcement Officials and relevant part of Section 37 FEMA reads as under: "37. Power of search, seizure, etc. (1)... (2).... (3) The officers referred to in sub-section (1) shall exercise the like powers which are conferred on income-tax authorities under the Income-tax Act, 1961 (43 of 1961) and shall exercise such powers, subject to such limitations laid down under that Act." 30. From a bare perusal of this Section, it is evident that for investigation of contraventions related to foreign exchange under Section 37 FEMA, Officers being Director or Assistant Director of ED has been conferred with the power to issue summons under Section 37 FEMA for the purpose of inquiry/investigation, which is the same as under the Income tax Act. 31. To understand the contention raised by the Petitioner, it would be app....
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....r of a banking company and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions. ..." 34. It thus, provides that for the purpose of this Section, the Income-Tax Officers as specified therein, would have the same powers as are vested in the Court under Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'), in regard to: (i) discovery and inspection; (ii) enforcing the attendance of any person, including any officer of a banking company and examining him on oath; (iii) compelling the production of books of accounts and other documents; and (iv) issuing commissions. 35. The power to seek discovery, ensuring the attendance of the person for examining him on oath and for compelling production of documents, is distinct from the powers of search and seizure given in Section 132 ITA, which states that where a person summoned to produce the books, documents or for the purpose as detailed in Section 131 of ITA, fails to do so, then the provisions of Cr.P.C relating to search and seizure, shall apply in this regard. Relevant part of S. 132 IT Act....
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....09, decided on 26.03.2010, it was considered whether at the stage of preliminary investigations, can the Petitioner seek assistance of a lawyer. It was observed that when the material is being collected for taking further action, the Officers of FEMA, do not act as a Court. Whether the Petitioner will be treated as an Accused on contravention of the provisions of FEMA or whether they would be treated as a witness, would be decided only after preliminary enquiry or investigation by the Authorities concerned. Even at the initial stage itself, before the Adjudicating Authority comes to the conclusion to proceed further or not, there can be no need for the Petitioners to be assisted by an Advocate or a Chartered Accountant. 40. Similarly, in the case of V. Datchinamurthy vs. Assistant Director of Inspection, (1984) 149 ITR 341 Madras High Court noted that the functions and the powers of the ITO appointed under the ITA, are well-defined by the statute. His principal job is to make an assessment of the income and levy Income-Tax on the basis of his determination. For the purpose of discharging his functions, he is invested with the powers to gather information, material evidence and t....