S V RAMAKRISHNA MUDALIAR Vs. RAJABU FATHIMA BUKARI

JUDGEMENT

(1.) THE question involved is the admissibility of the evidence of one Sri Marar, relating to the initials, which he is alleged to have affixed on August 17, 1957, in some account books (exhibits D-24 and D-25), which he perused in his capacity as Income-tax Officer, Second Circle, Madras. THE question arises because of the provisions of section 54 of the Income-tax Act of 1922, and section 137 of the Income-tax Act of 1961. Section 137 of the Income-tax Act of 1961 (Act 43 of 1961) was omitted from the statute by section 32 of the Finance Act of 1964. Another question which is involved is whether the prohibition, which existed against the Income-tax Officer giving evidence under the provisions of section 54 of the Income-tax Act of 1922 and section 137 of the Income-tax Act of 1961, still continues, having regard to the provisions of section 6 of the General Clauses Act, 1897 THE facts necessary for the disposal of the questions are these. Mrs. Buhari, the first defendant in the suit, C. S. NO. 43 of 1962, produced her account books, exhibits D-24 and D-25, at a late stage, and applied for permission to condone the delay. One of the questions for the court was whether any of the account books could be considered to be genuine. In that connection I happened to come across some initials in the said account books, which purported to be those of an Income-tax Officer, on August 17, 1957. THE initials are at page 43 of the day book (exhibit D-24) and also find place at page 1 of the corresponding ledger (exhibit D-25).

(2.) THERE are seals of the Income-tax Officer on August 17, 1957, on the said pages. Though some attack was made by the plaintiffs with respect to the seals, I felt that, so far as the initials of the officer were concerned, their evidentiary value would stand on a higher footing, and, if the accounts were seen by the officer on August 17, 1957, that would go a long way to establish their genuineness. Accordingly, I permitted the first defendant to examine the Income-tax Officer for the above purposeThe first defendant summoned the concerned Income-tax Officer, Sri Marar, who is now the Assistant Commissioner of Income-tax. In examination-in-chief he spoke to the fact of his having affixed his initials on August 17, 1957, and added that he believed that he did so in verifying the assessment of another assessee, Buhari Hotel, as a cross-verification. He was also cross-examined in part. This took place on April 29, 1965. In the course of the cross-examination it was felt that, in order to enable the plaintiffs to test the veracity of his evidence, it was necessary to summon the connected assessment records, where he stated he would have noted the fact of summoning and examining the account books of Mrs. Buhari (exhibits D-24 and D-25). For this purpose a requisition was sent to the Commissioner of Income-tax to give those assessment files to Sri Marar, and the case was adjourned to April 30, 1965, the last working day before the vacation. On that day, somehow, Sri Marar could not come, and the case came up after the reopening of the court after vacation. But even on April 30, 1965, Sri M. P. Subramaniam, learned counsel for the plaintiffs, brought to my notice the decision of the Supreme Court in Charu Chandra Kundu v. Gurupada Ghosh, and urged that, having regard to the provisions of the Income-tax Act of 1922 and the Income-tax Act of 1961, the evidence of Sri Marar would be totally inadmissible. I felt that, having regard to the importance of the question, and the fact that the Commissioner of Income-tax also was concerned, it was desirable to hear the arguments of Sri V.Balasubramaniam, standing counsel for the Commissioner. I had the benefit of his able arguments, supplemented by the arguments of Sri M. P. Subramaniam, and also the counter arguments of Sri T. Ramaprasada Rao for the first defendantThe stand of Sri Balasubramaniam, appearing for the Commissioner, is that in view of the provisions of section 54 of the Income-tax Act of 1922 and section 137 of the Income-tax Act of 1961, the evidence of Sri Marar would be totally inadmissible. He further contended that this prohibition continues, notwithstanding the omission of section 137 of the Income-tax Act of 1961, by section 32 of the Finance Act of 1964, having regard to the provisions of section 6 of the General Clauses Act. He also stated that, so far as Sri Marar was concerned, he was under the impression that be was merely asked to give evidence in his private capacity, and that consequently, the prohibition would not apply. But now that the objection has been brought to his notice, Sri Marar also claims the privilege of exemption from giving evidence. On the contrary, the contention of Sri Ramaprasada Rao is that, under the provisions of the Indian Evidence Act, the evidence of Sri Marar is admissible, and that the position is not altered by the provisions of the Income-tax Act. I may say at once that I have no difficulty in holding that the evidence of Sri Marar is totally inadmissible, and should be disregarded, and that it will not be legal to continue to examine him further. I accept the contention of Sri V. Balasubramaniam that under the provisions of the Income-tax Acts of 1922 and 1961, there was a prohibition against Sri Marar being examined by the court in respect of the matter in question, and that the prohibition continues, notwithstanding the deletion of section 137 of the Income-tax Act of 1961 by section 32 of the Finance Act of 1964I shall first discuss the position as it stood before the deletion of section 137 of the Income-tax Act of 1961 by section 32 of the Finance Act of 1964. Section 54 of the Income-tax Act of 1922 enacted as follows "54. (1) All particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of this Act, or in any evidence given, or affidavit or deposition made, in the course of any proceedings under this Act other than proceedings under this Chapter, or in any record of any assessment proceeding, or any proceeding relating to the recovery of a demand, prepared for the purposes of this Act, shall be treated as confidential, and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall, save as otherwise provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record, or to give evidence before it in respect thereof(2) If a public servant discloses any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine. "Sub-section (3) ran thus"(3) Nothing in this section shall apply to the disclosure---" *THERE followed several clauses, which, for the present, may be assumed not to apply.

(3.) THE result, therefore, is that under the law as it stood before the omission of section 137 by section 32 of the Finance Act of 1964, the evidence of Sri Marar would be totally inadmissible. THE question is whether in view of the omission of section 137 of the Income-tax Act of 1961 by section 32 of the Finance Act of 1964, the position is alteredHere it is necessary to quote the relevant portion of section 6 of the General Clauses Act".6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not---(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed." *THE principle of this enactment would apply even to a case of repeal of one of the sections of the Act of 1961, namely, the omission of section 137 by the Finance Act of 1964. THE Supreme Court has indicated in State of Punjab v. Mohar Singh, that unless a contrary intention appears in the repealing statute, the consequences of section 6 of the General Clauses Act will apply, and that it is not necessary that the repealing of new Act should expressly keep alive old rights and liabilities.