SUJIR GANESH NAIK Vs. SUJIR KESHAV NAIK

JUDGEMENT

(1.) Defendant in O.S. 137 of 1983 on the file of the Sub Court, Kollam is the revision petitioner. The revision is directed against the order of the Trial Court allowing I.A. 1960 of 1996 in part and issuing summons to the Commissioner of Income Tax to produce the Income tax and Wealth Tax returns of the defendant for the period subsequent to 1.4.1964 upto 1968-69 as shown in the petition filed by the plaintiff under R.120 of the Civil Rules of Practice. The suit is for declaration that Sujir Ganesh Naik and Company, a partnership firm of which the plaintiff and defendant were partners stood dissolved or is deemed to have been dissolved with effect from 31.12.1982 or 14.3.1981, settlement of accounts and other reliefs. The defendant contended inter alia that plaint A schedule items 1, 6 to 14 and 16 to 19 are not properties of the firm as alleged by the plaintiff and that they belong to the defendant as full owner. In other Words, the contention is that some of the properties mentioned in the plaint are acquired by using the defendants own funds and those properties are not the assets of the firm. According to the plaintiff, all the properties scheduled to the plaint were acquired by using the funds of the firm and the said properties are used for the purpose of the firm. In order to prove the case of the plaintiff, he filed I.A. 1312/94 for production of records from the Income Tax Office, Kollam as per R.120 of the Civil Rules of Practice. The said petition was allowed by the Trial Court and the same was challenged before this court in C.R.P. 1647 of 1994. This court disposed of the C.R.P. setting aside the order passed by the Trial Court and directing the parties to approach the Income tax Commissioner under S.138(1)(b) of the Income Tax Act 1961, and to get a certified copy of the documents. This court also gave liberty to the plaintiff to approach the Trial Court after taking necessary steps under S.138(1)(b) of the Income Tax Act. Though the plaintiff applied for certified copy on 15.7.1996, the Commissioner of Income Tax declined to furnish the same by the proceedings dated 24.7.1996. In the above circumstances, the plaintiff filed IA. 1960/1996 under R.120 of the Civil Rules of Practice for directing the Income Tax Commissioner to produce the Income tax Returns and Wealth Tax Returns of the defendant for the assessment years of 1954-55 to 1974-75. The said petition was partly allowed by the court below as per the order under challenge and the summons was issued to the Commissioner of Income tax to produce the Income tax and Wealth Tax returns of the defendant - revision petitioner for the period subsequent to 1.4.1964 and upto 1968-69. The revision is directed against the aforesaid order of the Trial Court.

(2.) Having heard learned counsel on both sides, I am satisfied that the order under challenge does not suffer from any illegality or irregularity warranting interference by this Court in exercise of the revisional power under S.115 CPC. It has been contended by the defendant that the Income Tax returns for the period upto 1.4.1964 cannot be directed to be produced for the reason that S.137 of the Income Tax Act, 1961 was deleted only with effect from 1.4.1964. That contention was rightly upheld by the Trial Court in view of the deletion of S.137 of the Income Tax Act only with effect from 1.4.1964 as clarified by the decision of this Court in Jose v. Chandran ( 1987 (1) KLT 465 ). The deletion of S.137 of the Income Tax Act, 1961 with effect from 1964 and the absence of any notification under S.138 (2) of the Income tax Act thus lead to the irresistible conclusion that the jurisdiction of the civil court to compel the Income Tax Authorities to produce the assessment records has not been expressly or impliedly taken away by the Income Tax Act, 1961 or any notification issued thereunder so far. Therefore, the civil courts have jurisdiction to summon the authorities to produce the Income Tax assessment orders. The Trial Court has entered a categorical finding that from the materials on record, it appears that the Income Tax and Wealth Tax returns for the period after 1.4.1964 would reveal the financial capacities and background of the defendant and this would be a relevant fact to consider the fact in issue regarding the disputed right of the parties over the plaint schedule items. In Para.5 of the I.A., it is stated that the firm has acquired all the immovable properties scheduled in the plaint during the accounting years 1954-1968 and that the defendant was not in possession of sufficient funds to acquire the properties as he claimed. In the aforesaid view, the court found that the production of Income Tax and Wealth Tax returns up to 1968-69 alone is sufficient for the purpose of the suit and accordingly directed the Income Tax and Wealth Tax Authorities for the production of the Income Tax and Wealth Tax returns for the period subsequent to 1.4.1964 upto 1968-69 and allowed the IA. to that extent.

(3.) The Apex Court while considering a similar situation has upheld the power of the civil court to summon the documents from the Income tax authorities, holding that privilege cannot be claimed when court has summoned their production. In the decision reported in M/s. Dagi Ram Pindi Lal v. Trilok Chand Jain ( AIR 1992 SC 990 ) the Court held as follows: