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Abdulla and anr. Vs. Assankutty - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 146 of 1959
Judge
Reported in[1960]11STC730(Ker)
AppellantAbdulla and anr.
RespondentAssankutty
Appellant Advocate A. Achuthan Nambiar and; T.P. Kelu Nambiar, Advs.;The Government Pleader
Respondent Advocate B. Moosakutty, Adv.
Cases ReferredVenkatachalla Chettiar v. Sampathu Chettiar
Excerpt:
- - it seems to me, that the effect of the omission in rule 47(1) pointed out above, may be better understood by a study of the corresponding provision in the indian income-tax act of 1886. under that act, in the exercise of the rule-making power conferred by section 38, rule 16 was framed, the material part of which is as follows :all public servants are forbidden to make public or disclose......under rule 47 of the general sales tax rules, 1950, and under sections 123 and 124 of the indian evidence act. the privilege was upheld by the order sought to be revised, though it is not clear, under which of the above provisions. section 123 of the evidence act is irrelevant as the documents do not relate to affairs of state. rule 47(1) aforesaid, is in the following terms :all particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the act or of the rules made thereunder, or in any evidence given or affidavit or deposition made, in the course of any proceeding under the act or the rules made thereunder, or in any record of any proceeding relating to the recovery of a demand prepared for the purpose of the act or.....
Judgment:
ORDER

S. Velu Pillai, J.

1. The disposal of the matter by the lower Court is not quite satisfactory, and the case has to be sent back; but in doing so, certain points require to be clarified by this Court. While producing, pursuant to summons, certain records relating to assessments of sales tax, copies of which were applied for by the revision petitioners, who are defendants 4 and 5, the Sales Tax Officer claimed privilege under Rule 47 of the General Sales Tax Rules, 1950, and under Sections 123 and 124 of the Indian Evidence Act. The privilege was upheld by the order sought to be revised, though it is not clear, under which of the above provisions. Section 123 of the Evidence Act is irrelevant as the documents do not relate to affairs of State. Rule 47(1) aforesaid, is in the following terms :

All particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the Act or of the Rules made thereunder, or in any evidence given or affidavit or deposition made, in the course of any proceeding under the Act or the rules made thereunder, or in any record of any proceeding relating to the recovery of a demand prepared for the purpose of the Act or the rules made thereunder, shall be treated as confidential and shall not be disclosed.

Section 54, Sub-section (1), is the counter-part of Rule 47(1) in the Indian Income-tax Act, 1922, and may be quoted :

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 proceeding 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 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.

On comparing the above provisions, it will be seen that there is no prohibition in Rule 47(1), against a Court requiring a public servant to produce documents or to give evidence in respect of them, as in Section 54(1) of the Indian Income-tax Act, 1922. It was contended by the learned Government Pleader to whom notice was issued, and by the learned counsel for the counter-petitioner, that the mandate in Rulee 47 that the particulars in, the documents specified shall be kept confidential, and shall not be disclosed, is sufficient to make up for the omission in the Rule and preclude a party from obtaining copies thereof. In spite of the stricter prohibition in Section 54(1), Courts have held that the imposition of a ban against disclosure is really the conferment of a privilege on the assessee, which may be waived by him. But the contention on behalf of the revision petitioners was, that under Rule 47(1), summons can be issued for the production of the documents in Court, and unless privilege attaches to them under Section 123 or 124 of the Indian Evidence Act, their copies can also be furnished to any party. It seems to me, that the effect of the omission in Rule 47(1) pointed out above, may be better understood by a study of the corresponding provision in the Indian Income-tax Act of 1886. Under that Act, in the exercise of the Rule-making power conferred by Section 38, Rule 16 was framed, the material part of which is as follows :

All public servants are forbidden to make public or disclose... any information contained in documents delivered or produced with respect to assessments...and any public servant committing a breach of this rule shall be deemed to have committed an offence under Section 166 of the Indian Penal Code.

Dealing with Section 38 and the rule in particular, Jenkins, J., as he then was, observed thus, in Jadobram Dey v. Bulloram Dey (1899) I.L.R. 26 Cal. 281 at 284.

This Section and the rule framed under it appear to me to have been framed for the purpose of regulating the conduct of officers coming under its operation and from preventing any disclosures by them in the course of their duties, and its object was to secure the interests of those making the returns under the Act. I think, however, that the rule was not directed against their production in a Court of law such as is sought in this case.

The learned Judge followed Lee v. Dirrell (1813) 3 Camp. 337, where Lord Ellenborough held, that notwithstanding the oath of secrecy taken on assumption of office by the bfficial, the documents were not privileged from production. Applying the above rule framed under the 1886 Act, the Madras High Court too in Venkatachalla Chettiar v. Sampathu Chettiar (1909) I.L.R. 32 Mad. 62, reached the same conclusion, and held, that the provisions of the Income-tax Act did not preclude the production of the documents in Court, the prohi-bition in the rule being only against disclosure of information by the officer to other persons, otherwise than in a Court of law. It seems to me that in this respect, Rule 47(1) of the General Sales Tax Rules, 1950, corresponds more to the above rule under the Indian Income-tax Act, 1886, than to Section 54(1) of the Indian Income-tax Act, 1922. In Allah Bux v. Ratan Lal Jain (1958) A.I.R. 1958. All. 829, it has been held under Section 23(1) of the U.P. Sales Tax Act, which corresponds to Rule 47(1) except for the last words in the latter, 'and shall not be disclosed '., that the direction in the rule, that the document shall be treated as confidential, is only to the officers of the Department not to voluntarily disclose the contents of the documents or to supply their copies to outsiders, but does not prohibit a Court from calling upon the officer to produce the documents as evidence in Court. If the construction noted above is warranted on the terms of Rule 16, the addition of the words' shall not be disclosed 'in Rule 47(1) to the corresponding provision in the U.P. Sales Tax Act, cannot make any difference. With respect, I adopt the interpretation of Rule 16 by the Calcutta and Madras High Courts and agree, that Rule 47(1) must be construed, as Section 23(1) of the U.P. Sales Tax Act was interpreted by the Allahabad High Court in the case cited. I therefore hold, that there is no prohibition against disclosure of the particulars of the documents summoned to be produced in Court, except to the extent, that the public officer can claim the privilege under Section 123 or 124 of the Indian Evidence Act.

2. In the present case, Section 123 of the Evidence Act being out of the question, the matter has to be examined with reference to Section 124. If there is any statement in the assessment file made to the Sales Tax Officer in official confidence, the privilege under Section 124 applies to it. The learned counsel for the revision petitioners urged, that under Rules 40 and 41 of the General Sales Tax Rules, 1950, the Sales Tax Officer may summon any person to appear and give evidence before him, and that statements so recorded under process of law could not be deemed to be made in official confidence. There is authority for this view in Venkatachalla Chettiar v. Sampathu Chettiar (1909) I.L.R. 32 Mad. 62. The test to decide whether a statement was made in official confidence or not, is whether the statement was made under process of law or not; if it was so made, the privilege under Section 124 does not arise. The returns made to the Sales Tax Officer or statements made to him otherwise than under process of law, or orders passed by him, are not made or passed in official confidence. In the present case, it is said that there is a statement of the plaintiff in the file, but it is not known, whether it was recorded under process of law or not; the above test has to be applied to it and to any other document, if any.

3. I therefore come to the conclusion, that the privilege under Rule 47(1) of the General Sales Tax Rules, 1950, cannot preclude the Court from requiring production of the documents, and directing that copies be furnished, except to the extent that Section 124 of the Indian Evidence Act comes into play and excludes any of such documents. This has to be decided by the Court below. The order passed by the Court below is set aside and the matter will be disposed of afresh, in the light of the above observations. The Civil Revision Petition is disposed of as above; no costs.


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