P.D. Kudal, J.
1. This is a revision petition under Section 115, CPC against the order of the learned Civil Judge, Jalore dated November 18, 1974,
2. The relevant facts of the case necessary for the disposal of this revision petition are that on November 18, 1974, Shri Deval Income-tax Inspector, D. Ward Bombay appeared before the learned Civil Judge with the assessment files for the years 1970-71 and 1971-72. On an objection being raised by the learned Counsel for the plaintiff his evidence was not recorded and it was held that the facts contained in an assessment order could not be divulged in view of Section 138 of the Income-tax Act. Feeling aggrieved against this order of the learned Civil Judge the present revision petition has been filed.
3. It was contended on behalf of the defendant-applicant that after the Income-tax Act from 1st April, 1984 there is no legal bar against the production of assessment proceedings in a Court of Law. It was also contended that Section 137 of the Income-tax Act was deleted. In was further contended that no privilege is now attached in the eve of law to the Income tax assessment proceedings, and even if for argument's sake any privilege is attached, it can be claimed only by the income-tax authorities. It was further contended that in the instant case on receiving the summons from the learned Civil Judge Jalore the Income tax authorities directed the Income-tax Inspector to appear before the learned Civil Judge with the relevant assessment proceedings, and as such, it is clear that the income tax authorities did not claim any privilege with regard to the production of these proceedings. I the income-tax authorities did not claim any privilege there was no occasion for the learned Civil Judge to have decided to examine the witness who was present m the Court along with the relevant record. It was also contended that the Income-tax assessment proceedings are public records as envisaged in Section 74 of the Indian Evidence Act.
4. On behalf of the plaintiff respondent, it was contended that the production of the assessment proceedings are of no avail, as such proceedings cannot conclusively prove any fact. It was also contended that the order of the learned Civil Judge being a discretionary order, cannot be interfered with in revisionsl proceedings.
6. The contentions of the learned Counsel for the parties have been considered and the recorded of the case carefully perused. The Income-tax Inspector Son Deval was present in the Court along with the assessment files for the years 1970-71 and 1971-72 Section 137 of the Indian Income-tax Act was deleted from 1st April, 1964 by Section 32 of the Finance Act, 1964, That section provided that 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 proceeding, under Chapter XXII or in 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 not with standing anything contained in the Indian Evidence Act, 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.
5. Section 138 of the. Indian Income-tax Act reads as under:
Section 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 function under any law relating to the imposition of any tax, duty or cess, or to Healings in foreign exchange as defined in Section 2(d) of the Foreign Exchange Regulation Act, 1947 (VII of 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 (XI of 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 that law.
(b) Where a person makes an application to the Commissioner la 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 (XI of 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 in formation 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.
7. On behalf of the defendant-applicant reliance was placed on Pentakota Surya Appa Rao v. Pentakota Seethayamma : 103ITR222(AP) , wherein. it has been held as under:
Notwithstanding the provisions of the Evidence Act, 1872 under Section 54 of the Indian Income tax Act, 1922, and Section 137 of the Income-tax Act, 1961. which was subsequently omitted with effect from April 1, 1964, by the Finance Act of 1964. an embargo was placed on the courts from calling for any returns, accounts documents or any records relating to any assessee from the Income tax department. As long as this non-obstante clause was in force, the provisions of the Evidence Act did not apply to the proceedings in courts and as such a court trying a suit cannot call the records relating to the assessment of any person or any documents pertaining to the period prior to April 1, 1964.
With the omission of Section 137 and amendment of Section 138 of the Income-tax Act, 1961, by the Finance Act, the declaration of confidential nature of record, the embargo against a court requiring a public servant to produce such records or to give evidence before it in respect thereof and the prohibition against a public servant making a disclosure of any particulars in the said documents have all been totally omitted and the provisions of the Evidence Act came into play with effect from April 1, 1964, and the courts trying a suit can call for such records from the Income-tax department, if it is satisfied that the circumstances of the case justify such summoning and if it is in accordance with the provisions of the Evidence Act.
Section 138(1)(b) of the Income-tax Act, 1961, under which the Commissioner of Income tax is empowered to furnish any information relating to assessment of any person, to any person, on an application made by such person, is limited to situations where 'public interest' is concerned. No 'public interest' is involved between two private parties, Hence in a dispute between two private parties, the provisions of the Evidence Act apply as regards calling for the documents from the Income-tax department, and not Section 138(1)(b) of the Act. Approaching the Commissioner by any person for any information under Section 138(1)(b) is only one mode of securing the information. This does not bar the court from calling for any records from the. Income-tax office or for any records from the Income-tax office or officer pertaining to the period from April 1, 1964, after Section 137 of the Act was omitted. After the Finance Act of 1964 was passed, the question of the Commissioner of Income-tax sitting in judgment over the summons issued by a court, calling for records of the department, does not arise. Equating 'court' to that of 'a person' and the summons issued by a court as an 'application' which are the requirements under Section 138(1)(b), is not warranted after the omission of Section 137 and amendment of Section 138.
It cannot be contended that the privilege acquired by or accruing to the department and the assesses under Section 54 of the Act of 1922 and Section 137 of Act of 1961, subsists even after the omission of Section 137 by the Finance Act of 1964, inasmuch as Section 6(c) of the General Clauses Act, under which protection is given to the rights, privileges, obligations or liabilities accrued under repealed enactments, does not apply where a particular provision was omitted, as in the instant case, as distinguished from repeal, Hence, the documents pertaining to the period from April 1, 1964, can be summoned from the department by a court.
The income-tax records are public documents within the meaning of Section 74(1)(iii) of the Evidence Act. As such they require no further proof, provided the originals of such records are filed.
Vijoya Kamar Machinery & Electrical Stores v. Laksmikanttamma : 74ITR224(AP) partly dissented from.
On the facts of the case:
Held, that calling for records from the income-tax department by the lower court pertaining to the period prior to April 1, 1964 is invalid. However, the lower court has got the jurisdiction to call for the records pertaining to the period commencing with April 1, 1964.
8. Reliance was also placed on Smt. Rama Gauri Devi v. Harish Chhandra Chaturdas : 87ITR15(Patna) , Amer Singh Lanaba v. Seva Singh and Anr. , Nazir Mohammed v. Jamila Bibi : 85ITR342(Orissa) and Trilok Chand Jain v. Dagi Ram Pindi Lall : 95ITR34(Delhi) .
9. The learned Counsel for the plaintiff respondent could not site any case law to the contrary. In Pentakota Surya Appa Rao v. Pentakota Seethayamma : 103ITR222(AP) the entire case law has been carefully examined, and it has been held that after April 1, 1964 there is no embargo on a court of law from summoning the assessment proceedings from the Incomes-tax authorities. It is also clear that the assessment proceedings are, after April 1, 1964, public document as envisaged under Section 74 of the Indian Evidence Act. The learned Civil Judge was, therefore wrong in not examining the Income-tax Inspector, who had appeared before him along with the relevant records. The lower Court has, thus, acted illegally and with material irregularity in exercise of its discretion in not examining the Income-tax Inspector, who bad appeared before it with the relevant records.
10. For the reasons stated above the revision petition is allowed and the order of the learned Civil Judge is hereby set aside. The learned lower Court is directed to examine the Income-tax Inspector with the relevant records, if now summoned on behalf of the defendant-applicant. The plaintiff-respondent shall pay the costs of this revision to the defendant-applicant.