Alfred Henry Lionel Leach, C.J.
1. Before proceeding to examine the provisions of the sections of the Indian Evidence Act mentioned in the question under reference it is desirable to state the effect of Section 54 of the Indian Income-tax Act, 1922, as in some cases where certified copies of the income-tax documents have been tendered in evidence its provisions have been misunderstood and misapplied. Sub-section (1) of Section 54 of the Indian Income-tax Act states that all particulars contained in a statement made, return furnished or accounts or documents produced under the provisions of the Act, or in evidence given in the course of proceedings under the Act other than proceedings under Chapter VIII (which relates to offences and penalties) or in a record of an assessment proceeding, or a proceeding relating to the recovery of a demand shall be treated as confidential, and, notwithstanding anything contained in the Indian Evidence Act, 1872, no Court shall be entitled to require a public servant to produce a document referred to in the section or to give evidence thereon. Sub-section (2) provides for the punishment of a public servant who unlawfully discloses particulars of an income-tax matter. Sub-section (3) sets out the occasions on which disclosure can lawfully be made. It is not necessary to set them out as the provisions of Sub-section (3) have no application here and have no bearing on the reported decisions which have relation to the application of Section 54.
2. While Section 54 prohibits the disclosure, except on specified occasions, of matters connected with an assessment to income-tax and prohibits a Court from requiring a public servant to produce the documents mentioned in the section or to give evidence in respect of them, it does not follow that the Court may not admit in evidence a document which falls within Section 54(1). This will depend on whether the document is admissible under the provisions of the Indian Evidence Act. Paragraph 85 of the notes and instructions compiled by the Income-tax department for the guidance of its officers states that the following persons shall, in practice, be allowed to inspect or to receive copies: (1) In any case the person who actually0 made the return; (2) any partner (known to be such) in a firm registered or unregistered to whose income the return relates; and (3) the manager of a Hindu undivided family to whose income the return relates, or any other adult member of the family who has been treated as representing it. There is nothing in Section 54 to prohibit this practice and it is only right that a person who is concerned with an assessment should be allowed to obtain copies of the documents relating to his assessment to income-tax should he so desire, and if copies are supplied he may put them in evidence in a suit if the Evidence Act allows it.
3. I will now turn to the relevant provisions of the Indian Evidence Act. Section 74 says that the following documents are public documents:
(1)documents forming the acts or records of the acts,-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, whether of British India, or of any other part of His Majesty's dominion or of a foreign country;
(2) public records kept in British India of private documents.
4. Section 75 stats that all other documents are private. Section 76 provides that every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of the copy that it is a true copy. Section 77 says that certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. Therefore, if a document is a public document, it may be proved by means of the production of a certified copy. Private documents must be proved by primary evidence, except in such cases where secondary evidence is permitted under the provisions of Section 65. Clause (e) of that section allows secondary evidence to be given when the original is a public document within the meaning of Section 74. If an income-tax return or a statement filed in support of it is a public document within the meaning of Section 74, certified copies will be admissible under Section 65(e). The answer to the question whether a document of this nature is a public document depends on whether it is a document, forming an act or the record of an act or acts of an Income-tax Officer. Before stating my opinion on the question I will first refer to certain of the cases which have been quoted in argument.
5. In Anwar Ali v. Tafozal Ahmed I.L.R. (1924) Rang. 391, a single Judge of the Rangoon High Court held that income-tax returns being made confidential by reason of Section 54 of the Income-tax Act, and the disclosure of their contents being a punishable offence, certified copies cannot be admitted in evidence. The Court did not consider the effect of Section 74 of the Indian Evidence Act and decided against the admissibility of the certified copies submitted on the ground that Section 54 of the Indian Income-tax Act made the issue of copies unlawful and made the disclosure of the particular contents in the return an offence punishable with imprisonment. In my opinion there is here a misconception. Section 54 does not make the issue of a certified copy of an income-tax return to an assessee unlawful. The return is a confidential document and cannot be disclosed to a third party, but there can be no objection to the maker of the return, having a copy for his own. purposes if he so desires. So far as the assessee is concerned he is not bound to treat the document as confidential.
6. A Bench of the Bombay High Court considered the question of the admission of certified copies of income-tax returns in Devidutt Ramniranjandoss v. Shriram Narayandus I.L.R. (1931)Bom. 324 and held that they were not admissible, but the decision was based on a different ground from that given by the Rangoon High Court in Anwar Ali v. Tafozal Ahmed I.L.R.(1924) Rang. 391. The reason given here was that the assessee had no right to inspect the original documents in the custody of the Income-tax Officer and the latter was not bound to give certified copies to the assessee on demand. It was considered -that the words 'right to inspect' in Section 76 of the Evidence Act exclude all such documents as a Government officer has a right to refuse to show 'on the ground of state policy or privilege, etc.' But an Income-tax Officer would not be fulfilling his duty if he refused to allow an assessee to inspect his own return. If he did so he might be placing an assessee at a disadvantage when the assessee was objecting to an improper assessment. The Bombay High Court, however, considered that there was nothing in the terms of Section 54 of the Income-tax Act and the intention of the Legislature underlying it, prohibiting an assessee from giving secondary evidence of the contents of the return made by him or on his behalf or of the assessment order made upon him or his firm on that return, where such secondary evidence would be admissible under the Indian Evidence Act. Where the original cannot be produced the best secondary evidence must be a true copy.
7. A Bench of this Court (Varadachariar and Pandrang Rao, JJ.) held in Venkataramana v. Varahalu (1938) 50 L.W. 681, that a certified copy granted to an assessee of a statement made by him on oath before an Income-tax Officer is admissible in evidence and there is nothing in Section 54 of the Income-tax Act or any of the provisions of the Evidence Act which precludes its admissibility. The statement was regarded as being a public document because it was a statement recorded by the Income-tax Officer and therefore a document forming a record of his act. Though they did not accept the Bombay interpretation of Section 76 of the Evidence Act the learned Judges concurred in the opinion expressed by the Bombay High Court in Devidutt Ramniranjandoss v. Shriram Narayandas I.L.R.(1931)Bom. 324, that an income-tax return is not a public document. They did not say so, but it is to be gathered from their judgment that they did not regard an income-tax return as a public document because it is prepared by the assessee.
8. The question whether an income-tax return as a public document was discussed at some length by a Bench of this Court (Burn and Stodart, JJ.) in Mythili Ammal v. Janaki Ammal I.L.R. (1940) Mad. 329 and the conclusion arrived at was that it is not a public document within the meaning of Section 74 of the Indian Evidence Act. The learned Judges considered that it was impossible to infer from the wording of the Act that a return made by an assessee is either part of the act of the Income-tax officer or part of the record of the act of that officer. In their opinion to allow a person who comes into possession of a certified copy of a return to produce it in Court and so prove the contents of the return would be defeating the express provisions of Section 54. I have said sufficient to indicate that in my opinion there is nothing in Section 54 which prohibits a party from putting in evidence a certified copy of an income-tax return if that return is a public document and that the learned Judges misunderstood the effect of that section. It only remains to be considered whether the opinion that an income-tax return is outside Section 74 of the Evidence Act is correct.
9. The judgments in Venkataramana v. Varahalu (1938) 50 L.W. 681 and Mythili Ammal v. Janaki Ammal I.L.R. (1940) Mad. 329 indicate that in the opinion ok the learned Judges who decided those cases a document on the record of an assessment proceeding cannot be deemed to be a public document within the meaning of Section 74 of the Evidence Act, unless it be a statement recorded by the Income-tax Officer himself or an order passed by him, and therefore does not include a document drawn up by the assesseee or under the assessee's directions. In my, opinion this interpretation of Section 74 of the Evidence Act is too limited. Section 22 of the Income-tax Act empowers the Income-tax Officer to call upon a person to submit a return of his income. Section 23 states that if the Income-tax Officer is satisfied that a return made under Section 22 is correct and complete he shall assess the total income of the assessee and shall determine the sum payable by him on the basis of the return. The submission of the return constitutes the fulfilment of a requirement of the Income-tax Officer; in other words, it is a document which he has caused to be prepared. Can it then be dissociated from his action in calling for the return? If the Income-tax Officer is not satisfied with the return he can call upon the assessee to produce evidence in support of it. If the assessee produces evidence the Income-tax Officer must consider it in determining the sum to be paid by the assessee. A profit and loss statement filed by the assessee is evidence in the matter and the Income-tax Officer may draw it up himself, if he thinks it expedient to do so. It is common ground, that an order of assessment is a public document within the meaning of Section 74 and the decision in Venkataramana v. Varahalu (1938) 50 L.W. 681, that a statement recorded by an Income-tax Officer falls in the same category has not been questioned. Now, if a statement recorded by an Income-tax Officer in the course of his examination of the assessee is a public document it is difficult to see why a statement handed in by the assessee disclosing the basis of the return called for should not be similarly regarded. Surely, the test cannot be whether the profit and loss statement is actually drawn up by the Income-tax Officer.
10. As the learned Judges who have made this reference have pointed out, a plaint or a written statement has always been regarded by this Court as forming part of the record of a case and a public document of which an interested party may obtain a certified copy. If the argument, that an income-tax return is not a public document, but that the order passed thereon is, were carried to its logical conclusion, it would mean that no part of the record of a civil suit could be regarded as constituting a public document except evidence recorded by the Court for summonses or notices or interlocutory orders or the judgment in the case. In Bhagain Megh Ranee Koer v. Gooroo Pershad Singh (1876) 25 W.R. 68, Garth, C.J. and Birch, J., expressly held that a petition which was the subject-matter of an Order passed was part of the record in the suit, and I do not think that this can reasonably be doubted. In ray judgment it would be putting an unwarranted restriction on the words 'documents forming the acts or records of the acts' to say that they should be confined to those parts of an income-tax record which the Income-tax Officer has himself prepared and to exclude documents which he has himself called for or which have been admitted to the record for the purposes of the assessment. I consider that the record of an Income-tax case must be regarded as the record of the acts of the Income-tax Officer in making his assessment and therefore that any document properly on the record is just as much a public document as the final order of assessment. For these reasons I would answer the question propounded in the affirmative.
11. I would make the costs of this reference costs in the cause.
12. I agree.
13. I agree.