H CHARU CHANDRA KUNDU Vs. GURUPADA GHOSH

JUDGEMENT

(1.) Gurupada Ghosh respondent to the appeal filed suit No. 41 of 1953 in the 6th Court of the Subordinate Judge at Alipore District 24 Parganas, West Bengal, for money decree against the appellant-Char Chandra Kundu-for Rs. 32,132-12-3 claiming that he had advanced to the appellant on May 11,1949, "by way of temporary accommodation loan" Rs. 30,000/- by a cheque drawn upon the Comilla Union Bank, Calcutta, and that the appellant had in two instalments repaid Rs. 5,500/- out of the amount advanced and the balance of Rs. 24,500/- with interest remained due and payable by the appellant. The appellant pleaded by his written statement that a loan on Rs. 30,000/- was advanced by the respondent to him and his wife Chapalabala and a promissory note was in consideration thereof executed by the borrowers in favour of the respondent and as collateral security for the loan, title deeds of certain immovable properties belonging to the said Chapalabal were deposited with the respondent and the thereafter between September 7,1949 and April 13, 1953, the appellant had repaid a aggregate amount of Rs. 37,000/. and the respondent having relinquished a sum of Rs. 235-7-0 on account of interest on such repayment the debt was discharged and is acknowledgment thereof, the promissory note and the title deeds of the immovable properties lodged with the respondent were returned. The appellant also raised other plea which are not material for the purposes of this appeal. On the pleadings, the burden on proving repayment lay upon the appellant.

(2.) The appellant applied to the subordinate Judge for the issue of a summons to the Commissioner of Income-tax directing that officer to arrange to produce "through competent officer the original file and depositions given "by the respondent" before the Income-tax Officer 1 (2) Division in the assessment of Charu Chandra Kundu." The Commissioner of Income-tax informed the Court that having regard to the prohibition's imposed by S. 54 of the Incometax Act, he was unable to produce any of the statements, returns, accounts, documents or records of assessment proceeding under the Income-tax Act or to give evidence in support thereof. The appellant them applied that the objection of the Commissioner of Income-tax be overruled and that the Income-tax Officer or any other competent officer be directed to produce the statement made by the respondent and recorded on February 22, 1950, in the proceedings for assessment of the income of the appellant. In that petition, by paragraph 10, the appellant submitted that "on a true construction of S. 54 of the Indian Income-tax Act, the exemption from disclosure and production relate only to the evidence or deposition etc. made by an assessee himself and not to depositions or evidence of other witnesses. In any event, the disclosure and production etc. prohibited by S. 54 of the Income-tax Act being in the interest of the assessee only, the assessee himself can waive this special protection and privilege" and that the appellant waived his right to the protection and privilege under S. 54 of the Income-tax Act.

(3.) It was the case of the appellant that in certain proceedings relating to assessment of income-tax of the appellant for the year 1949-50, the respondent had on February 22, 1950, made a statement before the Income-tax Officer, and to support his defence in the suit he desired that the statement be produced before the Court. The trial Court upheld the objection raised by the Commissioner of Income-tax that in view of S. 54, he could not be required to produce the statement he was summoned to produce, and the High Court of Judicature at Calcutta in exercise of its jurisdiction under S. 115 of the Code of Civil Procedure confirmed that view.