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H.N. Malak Vs. Aziz S. Yusuf - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 304 of 1968
Judge
Reported in[1974]94ITR276(Bom); 1973MhLJ443
ActsIncome Tax Act, 1961 - Sections 61, 137 and 138
AppellantH.N. Malak
RespondentAziz S. Yusuf
Appellant AdvocateS.G. Ghate, Adv.
Respondent AdvocateShankar Anand, Adv.
Excerpt:
.....of property - defendant applied for issuing summons to income tax authority as well as estate duty authority to produce documents relating to assessment order - plaintiff contended that production of said documents is expressly prohibited by law - on reading of section 80 it is clear that order passed by estate duty officer is not a document which is given produced and obtained in connection with or in course of proceedings under act - held, contention of plaintiff untenable. - - 2. the applicant plaintiff filed a suit for ejectment and possession of the suit premises as well as the arrears of rent and mesne profits against the defendant. the plaintiff adduced his evidence and the defendant had also examined himself and thereafter applied for issuing summons to the income-tax..........himself and thereafter applied for issuing summons to the income-tax authority as well as estate duty authority for producing the following documents : 1. assessment orders for the years 1960 to 1967 of atba-c-malak badar trust, nagpur, and the statements. 2. the order dated march 31, 1959, of the estate of late m. e. r. malak of nagpur and the statement filed by him. 3. the applicant-plaintiff claimed a privilege regarding these documents and submitted that they cannot be admitted in evidence, nor their production can be compelled in court of low. according to the plaintiff, such rights are expressly vested in the plaintiff and the production of these documents is also expressly prohibited by law. 4. the trial court by its order dated august 7, 1968, held that : 'hence, in my.....
Judgment:

Dharmadhikari, J.

1. This is a revision application filed by the original plaintiff against an order passed by the Civil Judge, Senior Division, Nagpur, in Civil Suit No. 97 of 1966, rejecting his application dated August 5, 1968, objecting to issuance of summons to the income-tax and estate authorities at the instance of the defendant.

2. The applicant plaintiff filed a suit for ejectment and possession of the suit premises as well as the arrears of rent and mesne profits against the defendant. The defendant raised a plea that, though he is the tenant of the suit premises, the plaintiff is not entitled to file the proceedings or recover the rent from him, because the property in question belongs to the trust and the plaintiff is merely a trustee and cannot claim the rent or the property in his individual capacity. The plaintiff adduced his evidence and the defendant had also examined himself and thereafter applied for issuing summons to the income-tax authority as well as estate duty authority for producing the following documents :

1. Assessment orders for the years 1960 to 1967 of Atba-C-Malak Badar Trust, Nagpur, and the statements.

2. The order dated March 31, 1959, of the estate of late M. E. R. Malak of Nagpur and the statement filed by him.

3. The applicant-plaintiff claimed a privilege regarding these documents and submitted that they cannot be admitted in evidence, nor their production can be compelled in court of low. According to the plaintiff, such rights are expressly vested in the plaintiff and the production of these documents is also expressly prohibited by law.

4. The trial court by its order dated August 7, 1968, held that :

'Hence, in my opinion, as far as returns filed and statements made up to April 1, 1964, the court cannot summon or look into them. As far as the documents pertaining to the period after April 1, 1964, certainly the court would look into them, if produced by the Income-tax Officer. Of course, the court will not force him to produce it, if he claims privilege and the court while issuing the summons also will not order the production of the documents, but only this much will be mentioned that, if the Income-tax Officer was prepared to produce those documents, he may do so. As far as the orders passed in estate duty proceedings are concerned, this privilege is not and was not in existence at all.'

Therefore, ultimately the court directed that the summons be issued to the Income-tax Officer starting specifically that he may bring the documents as returns filed by the plaintiff or the statements given by him after April 1, 1964, and to the Estate Duty Office, to bring the orders passed during the proceedings of assessment of estate duty of the father of the plaintiff. Against this order of the civil judge, senior division, the present revision application has been filed by the plaintiff.

5. Shri Ghate, who appears for the applicant-plaintiff before me, contended that the civil court has no jurisdiction to call for such documents even by issuing the summons. According to Shri Ghate, on a true construction of section 54 of the Indian Income-tax Act, 1922, and section 137 and new section 138 of the Income-tax Act, 1961, it is quite clear that the intention of Parliament was to preserve secrecy. The specific provision has been made under section 138 in this behalf and also the circumstances are indicated under which the disclosure of the information of assessment of respective assessee is contemplated. Where the manner in which the information is sought is prescribed, it is not open for anybody to get something done in any other manner. When the manner is prescribed, a thing can be done in that manner only and in no other way. What cannot be permitted to be done directly cannot also be allowed to be done indirectly. Issuing of summons virtually means that the court's discretion is substituted in place of the discretion of the Commissioner and no option is left to the Commissioner to exercise his discretion at all. Shri Ghate has also contended before me that, on a true construction of section 80 of the Estate Duty Act, as it stood before amendment, it is not open for the court to issue any summons for disclosure of information by a public servant. The provisions of section 54 of the Indian Income-tax Act, 1922, have been made applicable to the proceedings under the Estate Duty Act and the word 'document' used in section 80 of the Estate Duty Act will also include the orders passed by the Estate Duty Officers. In this view of the matter, according to Shri Ghate, the whole order passed by the civil judge, senior division is without jurisdiction.

6. Section 54 of the Indian Income-tax Act, 1922, was as under :

'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 proceedings, 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 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 is 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.

(3) Nothing in this section shall apply to the disclosure -

(a) of any such particulars for the purposes of a prosecution under the Indian Penal Code (XLV of 1860) in respect of any such statement, returns, accounts, documents, evidence, affidavit or deposition, or for the purposes of a prosecution under this Act, or

(b) of any such particulars to any person acting in the execution of this Act or of the Taxation on Income (Investigation Commission) Act, 1947, (XXX of 1947), where it is necessary or desirable to disclose the same to him for the purposes of either this Act or the Taxation on Income (Investigation Commission) Act, 1947, or

(c) of any such particulars occasioned by the lawful employment under this Act of any process for the service for any notice or the recovery of any demand, or

(d) of any such particulars to a civil court in any suit or proceeding to which Government or any income-tax authority is a party, which relates to any matter arising out of any proceedings under this Act or under any other law for the time being in force authorising any income-tax authority to exercise any powers thereunder, or

(e) of any such particulars to the Comptroller and Auditor-General of India for the purpose of enabling him to discharge his functions under the Constitution, or

(f) of any such particulars to any officer appointed by the Comptroller and Auditor-General of India or the Central Board of Revenue to audit income-tax receipts or refunds, or

(g) of any such particulars, relevant to any inquiry into the conduct of an official of the income-tax department, to any persons appointed Commissioners under the Public Servants (Inquiries) Act, 1850 (XXXVII of 1850), or to an officer otherwise appointed to hold such inquiry, or to a Public Service Commission established under the Constitution, when exercising its functions in relation to any matter arising out of any such inquiry, or

(gg) of any such particulars relevant to any inquiry into a charge of misconduct in connection with income-tax proceedings against a lawyer or chartered accountant to the authority referred to in sub-section (3) of section 61, when exercising the functions referred to in that sub-section, or

(h) of any such particulars occasioned by the lawful exercise by a public servant of his powers under the Indian Stamp Act, 1899 (2 of 1899), to impound an insufficiently stamped document, or

(i) of such facts to an authorised officer of the United Kingdom, or of any part of His Majesty's Dominions which has entered into an agreement with India for the granting of double taxation relief, as may be necessary for the purpose of enabling such relief or a refund under section 49 or section 49 AA of this Act to be given, or

(j) of such facts, to an officer of a State Government, as may be necessary for the purpose of enabling that Government to levy or realise any tax imposed by it, or

(k) of such facts to any authority exercising powers under Sea Customs Act, 1878 (8 of 1878) or any Central Act imposing a duty of excise as may be necessary for enabling it duly to exercise such powers or

(l) of such facts, to any person charged by law with the duty of inquiring into the qualification of electors as may be necessary to establish whether a person is or is not entitled to be entered on a electoral roll, or

(m) of so much of such particulars, to the appropriate authority, as may be necessary to establish whether a person has or has not been assessed to income-tax in any particular year or years, where under the provisions of any law for the time being in force such fact is required to be established, or

(n) of such particulars to the Reserve Bank of India as are required by that Bank to enable it to compile financial statistics of international investments and balance of payments, or

(o) of such information as may be required by any officer or department of the Central Government or of a State Government for the purposes of investigation into the conduct and affairs of any public servants, or

(p) of any such particulars to the Custodian of Evacuee Property appointed under the Administration of Evacuee Property Act, 1950, for the purpose of enabling him to discharge the duties imposed upon him by or under the said Act.

(4) Nothing in this section shall apply to the production by a public servant before a court of any document, declaration or affidavit filed, or the record of any statement or deposition made in a proceeding under section 25A, or section 26A, or to the giving of evidence by a public servant in respect thereof.

(5) No prosecution shall be instituted under this section except with the previous sanction of the Commissioner.'

7. The Income-tax Act, 1961 (No. 43 of 1961), came into force from April 1, 1962, and a provision was made in section 137 about the prohibition from disclosure of information. Section 137 and 138 which were then on the statute book read as under :

'137. Disclosure of information prohibited. - (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 Chapter XXII or in any record of any assessment proceeding, or any proceeding relating to 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 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) No public servant shall disclose any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record.'

'138. Disclosure of information respecting tax payable. - Where a person makes an application to the Commissioner in the prescribed form and pays the prescribed fee for information as to the amount of tax determined as payable by any assessee in respect of any assessment made either under this Act, or the Indian Income-tax Act, 1922 (XI of 1922), on or after the 1st day of April, 1960, the Commissioner may, notwithstanding anything contained in section 137, if he is satisfied that there are no circumstances justifying its refusal, furnish or cause to be furnished the information asked for.'

8. From 1st April, 1964, section 137 was deleted and section 138 as it stands to-day reads as under :

'138. (1) (a) The Board or any other income-tax authority specified by it by a general or special order in this behalf may furnish or cause to be furnished to -

(i) any officer, authority or body performing any functions under any law relating to the imposition of any tax, duty or cess, or to dealings in foreign exchange as defined in section 2(d) of the Foreign Exchange Regulation Act, 1947; or

(ii) such officer, authority or body performing functions under any other law as the Central Government may, if in its opinion it is necessary so to do in the public interest, specify by notification in the Official Gazette in this behalf, any such information relating to any assessee in respect of any assessment made under this Act or the Indian Income-tax Act, 1922, as may, in the opinion of the Board or other income-tax authority, be necessary for the purpose of enabling the officer, authority or body to perform his or its functions under the law.

(b) Where a person makes an application to the Commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made under this Act or the Indian Income-tax Act, 1922, on or after the 1st day of April, 1960, the Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any court of law.

(2) Notwithstanding anything contained in sub-section (1) or any other law for the time being in force, the Central Government may, having regard to the practices and usages customary or any other relevant factors by order notified in the Official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order.'

9. It is further contended before me by Shri Ghate that section 54 of the Indian Income-tax Act, 1922, imposed a prohibition regarding the disclosure of information by a public servant and it was an absolute prohibition. Similarly, the prohibition contemplated by section 137 of the Act was also an absolute prohibition. Though section 54 of the Indian Income-tax Act, 1922, and section 137 of the Income-tax Act, 1961, have been deleted and section 138 has been introduced and re-enacted in its new form, according to Shri Ghate, in substance the effect of section 54 of the Indian Income-tax Act, 1922, and section 137 of the Income-tax Act, 1961, has not been taken away, but, on the contrary, the same provision has been carried out by the legislature in a different form. He further brought to my notice a Government Notification No. S. O. 1237 dated the 20th March, 1968, issued in pursuance of sub-clause (ii) of clause (a) of section 138(1) of the Income-tax Act, 1961, whereby the Registrar of Companies was specified as one of the authorities as contemplated by section 138 of the said Act. Therefore, it is contended by Shri Ghate that, if we read section 138 as a whole together with the scheme of the Act, it is quite clear that, unless an authority or an officer is specified by a notification by the Central Government, the income-tax authorities cannot furnish or cause to be furnished any information to any body and, as the civil court is not specified as such authority or the body by the Central Government, the civil court has no power or authority to issue summons directing the income-tax authorities to produce any document. Therefore, in substance the argument of Shri Ghate is that though the old section 54 of the Indian Income-tax Act, 1922, is no more on the statute book and section 137 has been omitted and section 138 is re-enacted, still in effect the prohibition contemplated by these sections is in force. The prohibition contemplated is absolute and this being the position of the order passed by the civil judge, senior division, directing to issue a summons to the Income-tax Officer stating specifically that he may bring the documents as returns filed by the plaintiff or the statements given by him after April 1, 1964, is without jurisdiction.

10. It is further contended by Shri. Ghate that section 138(b) of the Income-tax Act, 1961, prescribes a procedure for getting information from the income-tax authorities. If this provision is read with the Rules framed the under and particularly rule 113 and Forms 46 to 49, it is quite clear that the information can be had vide the procedure provided by section 138(b) together with the Rules framed under the Act, and the information cannot be had in any other manner. This being the position the civil court has no authority, power or jurisdiction to issue summons because, if issuing of such summons at the instance of a party is permitted, it will mean that a party will be allowed to get an information through court which it cannot get by filing an application as contemplated by section 138(b) of the Income-tax Act, 1961. This will also mean that, though an application has been filed by a party and has been rejected by the Commissioner still it is open for a party to get the same information by issuing a summons through court. Such an interpretation will run counter not only to the provisions of the Act, but as well as the intention of the legislature. It is an established principle of law that a party cannot be allowed to get a thing done indirectly which cannot be done directly. For this proposition of law he cited certain decisions before me. In my opinion, it is not necessary to refer to those decisions because, so far as the proposition of law is concerned, the said principle of law is not disputed even by Shri Shankar Anand, who appears for the non-applicant.

11. Shri Ghate also relied upon the decisions of the various High Courts in Daulat Ram v. Som Nath, Raghubir Saran v. O. P. Jain and Sivagami Achi v. Ramanathan Chettiar, but these decisions also are not of much assistance for deciding the question involved in the revision petition because in all these decisions the provisions of the Act as they stood prior to the amendment have been interpreted.

12. It is no doubt true that section 54 of the Indian Income-tax Act, 1922, or section 137 of the Income-tax Act, 1961, had provided for such absolute bar. However, these provisions have been deleted from the statute book and an altogether new section, namely, section 138, has been introduced by the legislature. Therefore, the intention of the legislature will have to be gathered by the express words used in section 138 of the Act itself. The intention of the legislature is further clear from the fact that section 137 of the Income-tax Act, 1961, has been deleted. Therefore, in my opinion now it is not possible to hold that, though section 54 of the old Act of section 137 of the Income-tax Act, 1961, have been deleted by the legislature from the statute book, still it was the intention of the legislature in effect to continue the same protection to the assessee. It is not permissible to read something more in a section and the intention of the legislature will have to be gathered from the express words used in section 138 of the Income-tax Act, 1961, only. It is also not possible to hold that section 54 of the 1922 Act or section 137 of the 1961 Act created any obligation or privilege which has been saved by section 138 of the Income-tax Act, 1961. Section 138, as is enacted, no doubt provides for a procedure for getting information in this behalf, but in my opinion the above provision has no application to the production of documents or giving of evidence before the court of law. That provision merely enables the income-tax authorities to furnish certain information to certain officers, authorities or bodies or persons specified in the said section. That provision has no reference to the power of the court to summon any income-tax authority for producing certain documents before the court. On the contrary from the deletion of section 137 from the statute book and the re-enactment of section 138 in the present form, it is quite clear that it was not the intention of the legislature to afford strict secrecy about the income-tax proceedings.

13. The powers of the civil court regarding issue of summons, etc., are governed by the Code of Civil Procedure. This power is independent and is not restricted either by express words used in the Income-tax Act or even by implication. In the absence of any such provision, in my opinion, it cannot be held that the civil court has no authority, power or jurisdiction to issue summons in this behalf.

So far as the interpretation of section 138 of the Income-tax Act, 1961, as it stands to-day, is concerned, it seems that the Mysore High Court has taken a similar view in Rikhabchand v. R. V. Subramanyam. In this context it is observed by the Mysore High Court as under :

'Mr. Joshi next referred to clause (a) of section 138(1) of the Act as substituted by the Finance Act, No. 2 of 1967, which provides that the Central Board of Direct Taxes or any other income-tax authority specified by the Board may furnish or cause to be furnished to any officer authority or body performing functions under any law as the Central Government may specify, information relating to any assessee in respect of any assessment to income-tax as may be necessary for enabling that officer, or authority or body to perform his or its functions under the law. Mr. Joshi argued that, unless the court is specified by the Central Government as one of the authorities to which such information can be furnished, the Income-tax Officer cannot produce assessment orders before the court.

I think the above provision has no application to production of documents or to giving evidence before the court. That provision merely enables certain income-tax authorities to furnish certain information to certain officers, authorities or bodies specified by the Central Government. That provision has no reference to the power of the court to summon any income-tax authorities to produce certain documents or to give evidence nor does it prohibit such income-tax authorities from producing documents relating to assessment summoned by the court.'

14. Similar view is taken by the Punjab and Orissa High Courts in Shiv Narain v. Jivan Lal and Nazir Mahammad v. Jamila Bibi. In the case before me the civil judge has already disallowed the application filed by the defendant for issue of summons for production of returns filed and the statements made up to April 1, 1964.

15. Therefore, we are not concerned in this case with the question as to whether a civil court has got jurisdiction to issue summons for production of documents pertaining to the period prior to April 1, 1964. In the present case the court has passed an order for production of documents for a period after April 1, 1964, only and in that case also it is specifically observed by the court that the court will look into them after they are produced by the Income-tax Officer and the court will not force him to produce them if the Income-tax Officer claims privilege. It is further made clear that the court while issuing summons will also make it clear that, if the Income-tax Officer is prepared to produce these documents, he may do so. Therefore, in my opinion, it cannot be said that the order passed by the civil judge, senior division, in this behalf is in any way without jurisdiction. So far as the order passed by the civil judge, senior division, directing the issue of summons for production of the order passed in the estate duty proceedings is concerned, in my opinion, the civil judge, senior division, was right in holding that no privilege can be claimed relating to the said order passed in those proceedings. Section 80 of the Estate Duty Act, as it stood prior to its amendments by Finance Act, 1964, and under which a privilege is being claimed by the plaintiff reads as under :

'80. Disclosure of information by a public servant. - The provision of section 54 of the Indian Income-tax Act, 1922 (XI of 1922), shall apply to all accounts, statements, documents, evidence or affidavits given, produced or obtained in connection with or in the course of the proceedings under this Act :

Provided that nothing in the said section 54 shall apply to the disclosure of any such particulars to any person acting in the execution of this Act or of the Indian Income-tax Act, 1922 (XI of 1922), where it is necessary or desirable to disclose the same to him for purposes of either this Act or the said Act.'

16. It is pertinent to note from the bare reading of this section that the provisions of section 54 of the Indian Income-tax Act, 1922, regarding disclosure of information by a public servant are made applicable only to all accounts, statements, documents, evidence or affidavits given produced or obtained in connection with or in the course of proceedings under Act. Shri Ghate contended that the word 'document' is of a wider import and will include an 'order' passed by the Estate Duty Officer, in the course of proceedings under the Act.

17. It is not possible for me to accept this contention of Shri Ghate. From the bare reading of section 80, it is quite clear that by no stretch of imagination it can be said that an order passed by the officer is a document as contemplated by section 80 of the Estate Duty Act. The order passed by the Estate Duty Officer is not a document given produced, and or obtained in connection with or in the course of proceedings under the Act. The Scheme of the Act itself is quite clear. Under the Scheme the Estate Duty Officer is expected to pass an order after getting necessary information or after completing the enquiry as contemplated by the Act. The proceedings before the Estate Duty Officer are quasi-judicial proceedings, and after holding the necessary enquiry as contemplated by the Act has to give his decision, which is known as an order. The Act further provides for filing of an appeal, etc., against this order of the Estate Duty Officer. This being the position, the said order passed by the authority cannot be equated with the term 'document' given, produced or obtained in connection with or in the course of proceedings under the Act. I am fortified in this view by a decision of the Andhra Pradesh High Court in Uppala Lakshmidevi v. V. S. Murty, wherein it is observed :

'It is not in dispute that the assessment orders are not thus treated as confidential under the Estate Duty Act. There can, therefore, be no objection in directing the production of the assessment orders, and the Assistant Controller cannot claim any privilege in regard to such documents because they do not come within the protection afforded under section 80 of the Estate Duty Act. It must be remembered that section 80 of the Act does not make the entire section 54 of the Income-tax Act applicable. But it is attracted only in so far as the documents mentioned in section 80 of the Estate Duty Act are concerned. Admittedly, the assessment orders do not fall within the meaning of any document mentioned in section 80 of the Estate Duty Act.'

18. In my opinion, therefore, this contention of Shri Ghate is without any substance.

19. In the result, therefore, the revision application fails and is dismissed with costs.

20. Appeal dismissed.


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