SANKARANARAYAN BHATTA Vs. GANAPATHI BHATTA

JUDGEMENT

(1.) PETITIONER -plaintiff filed a suit for a permanent injunction restraining the respondents-defendants who are bis father and two brothers from trespassing upon the suit property or disturbing his possession, claiming that he was in possession by virtue of a partition deed of November 1, 1969. The respondents resisted the suit setting up the plea that the partition deed of 1969 was not binding and that they were all in joint possession pursuant to an unregistered agreement of September 5, 1967, in which the petitioner had admitted such possession and that this would be disclosed by the returns and objections which he had filed before the Agricultural Income Tax authorities. In the attempt to prove this plea the 2nd defendant-1st respondent made an application I. A No. 861 of 1976 to summon the concerned Agricultural income Tax Officer, and the Appellate Assistant Commissioner, Agricultural and sales Tax, to cause the production of File No. P. 37 of 1968-69 from the former and File No. P-37 of 1969-70 and 71 from the latter, including the returns and objections to the pre-assessment notices filed by the petitioner. The petitioner opposed the application mainly on the ground that it contravened s. 54 of the Agricultural Income Tax Act. The Court below has partly allowed the application by permitting the 1st respondent to summon the appeal memorandum from the Appellate Assistant Commissioner and the objection to the pre-assessment notices from the Agricultural Income Tax Officer, both filed by the petitioner.

(2.) THE ground on which the court below rejected the petitioner's objection and allowed the application was that S. 54 of the agricultural Income Tax Act conferred only a privilege on the Department and not on the assessee and that it was highly doubtful whether the appeal memorandum and the objection to the pre-assessment notice would form part of the proceedings to which S. 54 would apply. Counsel for the petitioner contested the view of the court below on S. 54 and its doubt about the nature of the documents summoned as based upon an erroneous interpretation of the section.

(3.) NOW the two documents allowed to be summoned are the objection statement to the pre-assessment notice and the memorandum of appeal and there is no doubt that they fall within the class of records enumerated in s. 54 (1 ). As to the effect of the sub-section, it is in two parts the first part enacts thai the records and particulars specified in them shall be treated as confidential and the second part, save as provided in the Act, debars the court from requiring any public servant to produce the records or any part of them in court. There-tore besides directing the records to be treated as confidential the sub-section imposes a ban upon the public servant against producing them or any part of them in court. And the only point to be considered is whether this ban, despite its absolute nature, confers only a right on the public servant to claim privilege as held by the court below. In support of their rival contentions about the scope of this embargo counsel for the parties quoted several cases before me but it is needless to refer to all of them as the point is covered by the decisions of the Supreme Court on the corresponding section of the Indian Income Tax Act.