1. The defendants are the petitioners. They filed an application in a suit for recovery of money on the foot of a promissory note alleged to have been executed by their father, for sending for a statement made by the plaintiff's mother to an Income-tax Officer and the original statement of the deceased husband of the first defendant to that officer. The defendants denied execution of the promissory note by their father and also pleaded that it was not supported by consideration. The statements before the Income-tax Officer above referred to are supposed to be to the effect that according to the makers of those statement, there was no dealing between them. The court below dismissed the application in view of S. 137(1) of the Income-tax Act, 1961.
(2) On behalf of the petitioners, it is contended that as one of the statements made to the Income-tax Officer was by the defendants' father himself, the requisition to the Income-tax Officer would fall within the purview of S. 137(5). In support of this contention, reliance is placed on Income-tax Officer, Central Circle v. Ramaratnam . I am unable to accept the contention. Sub-section (5) of S. 137 of the I.T. Act. 1961 does not, in my view, lift the bar imposed by Sub-s. (1) of that section, on the court or any public servant. Sub-section (5) merely says that there is no prohibition against a person disclosing the particulars of any statement which he himself had made in assessment proceedings. That does not justify the construction that if the person who made the statement is willing to disclose it, that will enable the court or public servant to summon for or disclose the statement. Liberty given by Sub-section (5) to the maker is not liberty extended to the court or the public servant.
(3) no doubt held that the Magistrate was in view of the facts in that case, justified in directing the Income-tax Officer to produce certain documents, which the accused had produced before him in the course of assessment proceedings relating to their employers. This was on the view that if the assessee waived the privilege, the prohibition would not operate. But this does not, as I read sub-section (5), appear to be the effect of it. Sub-section (1) is not made subject to sub-section (5) and the prohibition against the court or the public servant is absolute and is not qualified. Sub-section (5) merely lays down a rule of construction relating to S. 137. This is plain from the opening words of that sub-section. It says:
"Nothing in this section shall be construed as prohibiting the voluntary disclosure of any particulars referred to in sub-section (1)."
The voluntary disclosure by the person who made the statement is not prohibited by any of the other sub-sections of S. 137. Lest any one of them may be construed that prohibition may extend to voluntary disclosure by the person who made the statement, sub-section (5) has been enacted to make it clear that the prohibition does not extend to the persons who voluntarily disclosed the statements they have made.
(4) Ramakrishna Mudaliar v. Rajabu Fathima, appeals to proceed on the view I am inclined to take of the scope of S. 137(1). In that case, in proof of the genuineness of certain account books produced by the defendant, he sought to summon through court the Income-tax Officer, who had initialled those account books. It was held that the evidence of the Income-tax Officer was inadmissible in view of S. 137(5). Venkataraman J. pointed out that sub-section (5) of that section did not affect the prohibition against the officer himself. With respect, that is the view I too am inclined to take.
(5) It is then urged that the court below should have allowed the application under section 137(3)(xxi). Obviously this provision will have no application. That sub-section (3) enumerates certain exceptions relating to disclosures and disclosure of so much of such particulars to any person as is evidence of the fact that any property does not belong to the assessee, but belongs to such person, is not prohibited, provided the proviso to clause (xxi) is satisfied. But the statements alleged to have been made to the Income-tax Officer in this case are not of the type which would fall within that provision.
(6) Lastly, it is contended that, since Section 137 has been wholly dropped from the Act by the Finance Act, 1964, there can be no objection to the application being allowed. But when the application was disposed of, S. 137 was in force. This court is merely concerned with the order made on that application.
(7) The petition is dismissed. No costs.
(8). Petition dismissed.