KADERKUTTY Vs. AGRICULTURAL INCOME TAX OFFICER

JUDGEMENT

(1.) The petitioner is the plaintiff in a suit against the third respondent, instituted in the Sub-Court at Tellicherry, to enforce repayment of an alleged loan of Rs. 20,000/-. The suit was decreed by that Court, but on appeal, this Court remanded the case for a fresh decision after recording further evidence. One of the principal items of evidence on which the petitioner relies in the suit, is the entry relating to the transaction, in each of his two account books. He sought to establish the genuineness of the account books, which was impeached, by attempting to prove, that they had been produced earlier, before the Income tax Officer in assessment proceedings against him, under the Madras Plantations Agricultural Income Tax Act, 1955 (Act V of 1955), which may be referred to hereafter as the Act. There was no reference in the assessment order, Ext. P1, dated December 31, 1955, to the account books, but a letter, Ext. P2, was addressed by the petitioner on April 30, 1956, to the Income Tax Officer, pointing out, that the account books had been produced by him on November 28, 1955, and praying for a revision of the assessment. After the case was remanded by this Court, the petitioner made two applications, Exts. P5 and P7, to the Income tax Officer, requesting, that copies of certain records in the assessment file may be furnished to him, and a third application, Ext. P6, that such records may be produced in Court. The Income Tax Officer refused to comply with these requests, by Ext. P8 dated July 23, 1959. The petitioner had also made an application to the Sub-Court for the issue of summons to the Income Tax Officer to produce the records, but this was rejected by order dated July 21, 1959, which is sought to be revised in Civil Revision Petition 602 of 1959, which was heard along with this petition. The main prayer in O.P. 851 of 1959 in for the issue of a writ of mandamus to compel the Income tax Officer to grant copies and of a writ of certiorari to quash Ext. P8.

(2.) Though the consensus of judicial opinion is, that the privilege under S.54(1) and (2) of the Income Tax Act is that of an assessee and can therefore be waived by him, the learned counsel for the third respondent contended, that such privilege can only be, with respect to the documents specified in S.54(1), in the making of which, the assessee has a part to play, but that, with respect to others with which he is not so directly connected, the privilege, such as it is, is that of the Income Tax Officer and not of the assessee. It was further urged, that documents of the latter description do not constitute evidence by themselves and have to be proved by examining the Income Tax Officer who made them or in whose custody they are, and if, by reason of S.54(1) he cannot be examined, they cannot go in evidence at all. It may at once be stated, that the learned counsel was not able to point to a single decision which has made this distinction, on the terms of S.54(1) and (2), between a privilege of the assessee and a privilege of the department. It is accidental, that in some of the cases, the documents, copies of which were allowed to be furnished to the assessee, were income tax returns, or annexures thereto, or profit and loss statements or statements made by the assessee; at the same time, cases are not wanting, in which copies of assessment orders, or other orders passed in proceedings before the Income Tax authorities, have been held to be admissible in evidence, at the instance of assessees. A few of these cases, are Narasimha Rama Rao v. Venkataramayya, A I. R.1940 Madras 768, Somanna v. Subba Rao, AIR 1958 Andhara Pradesh 200, Naim Singh v. Taikam Singh, AIR 1955 Allahabad 388, Buchibai v. Nagpur University, AIR 1946 Nagpur 377, Suraj Narain v. Jhabbu Lal, AIR 1944 Allahabad 114 and Venkatramana v. Varahalu, 1939 I.T.R.560. On a plain reading of S.54(1) there is no room for thinking, that two privileges, one a privilege of the assessee, and the other a privilege of the Income Tax Officer, are envisaged by it; it refers only to one privilege in respect of all documents, including any record of an assessment proceeding. The Income Tax Officer stands in need of no special privilege concerning the particulars referred to in S.54(1), beyond what he can claim and what he is entitled to, under the provisions of the Indian Evidence Act. Far from conferring a privilege on the Income Tax Officer, S.54(1) and (2) seems to impose a restraint on him from making disclosures of the contents of the file. The disjunctive word or in S.54(1) which precedes the clause in any record of an assessment proceeding, affords no foundation, whatever, to the above contention of the learned counsel. The learned counsel for the third respondent relied on a number of decided cases in England which, however, have no bearing on this ban against disclosure in income tax proceedings; rather, they bear on the principles of English law, upon which the provisions of S.123 and 124 of the Indian Evidence Act are based, and I do not propose to consider them. I overrule this contention of the third respondent.

(3.) The petitioners right to obtain certified copies, has to be adjudged on the terms and provisions of S.74, 76, and 65 (e) of the Indian Evidence Act. S.74, sub-s.(i) and clauses (ii) and (iii) provide, that documents forming the acts or records of the acts .................. of official bodies and tribunals, and of public officers ............... are public documents. In Narasimha Rama Rao v. Venkataramayya, AIR 1940 Mad. 768 , Leach, C.J., delivering the judgment of the full bench held, that: