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Amalgamated Commercial Traders (P) Ltd. Vs. A.C.K. Krishnaswami - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberC.M.P. No. 39 of 1963 in T.C. No. 218 of 1959 (Ref. 82 of 1959)
Judge
Reported inAIR1967Mad337; [1968]69ITR361(Mad); (1965)2MLJ275
ActsIncome-tax Act, 1922 - Sections 54 and 66; Finance Act, 1964; General Clauses Act - Sections 6; Income-tax Act, 1961 - Sections 137
AppellantAmalgamated Commercial Traders (P) Ltd.
RespondentA.C.K. Krishnaswami
Cases ReferredChettiappan v. Income Tax Officer
Excerpt:
.....against inspection or furnishing of copies of the documents, the petitioner has failed to make out a case on merits for inspection and for grant of copies of documents......of 1964 against a.c.k. krishnaswami, hariprasad, suit, godavari bhai and factors (p) ltd. in this suit the company, amongst other reliefs, prayed for a decree against defendants 1 and 2 jointly and severally for a sum of rs. 2,25,000 with interest at 6% per annum from the date of suit. the contention of the plaintiff company is that the first defendant received a sum of rs. 3,15,000 as and for the surrender value of a lease, and appropriated the proceeds which properly belonged to the company. the suit is resisted by the defendants and is pending before the original side of this court. defendants 2 and 3 in the suit filed com. p. no. 87 of 1964 for winding up of the company, amalgamated commercial traders pvt. ltd. in that application they have referred to t. c. no. 218 of 1959 on the.....
Judgment:
ORDER

(1) This petition is filed by a Director of Amalgamated Commercial Traders (P) Ltd., for leant to inspect the documents relating to proceedings in T. C. No. 218 of 1959, and for grant of the copies of documents for the purpose of their defence in Company Petition No. 87 of 1964 and for prosecuting C. S. No. 65 of 1964.

(2) The Company, Amalgamated Commercial Traders Pvt. Ltd., filed a suit C. S. No. 65 of 1964 against A.C.K. Krishnaswami, Hariprasad, Suit, Godavari Bhai and Factors (P) Ltd. In this suit the company, amongst other reliefs, prayed for a decree against defendants 1 and 2 jointly and severally for a sum of Rs. 2,25,000 with interest at 6% per annum from the date of suit. The contention of the plaintiff Company is that the first defendant received a sum of Rs. 3,15,000 as and for the surrender value of a lease, and appropriated the proceeds which properly belonged to the Company. The suit is resisted by the defendants and is pending before the Original Side of this Court. Defendants 2 and 3 in the suit filed Com. P. No. 87 of 1964 for winding up of the Company, Amalgamated Commercial Traders Pvt. Ltd. In that application they have referred to T. C. No. 218 of 1959 on the filed of this Court for the purpose of negativing the right of the Company to the magnesite Lease. The portion of the judgment extracted in the affidavit is as follows :--

'We are further satisfied that, though the Amalgamated Commercial Traders (Private) Limited was the formal lessee on record from the inception of these transactions it must have been understood quite clearly between the assessee and the Amalgamated Commercial Traders (Private) Limited that the beneficial interest in the lease should belong to the assessee....... We have endeavoured to show and we find it satisfactorily established that notwithstanding that the lease stood nominally in the name of the Amalgamated Commercial Traders (Private) Limited the true beneficially was the assessee himself.... '

(3) In this petition it is contended on behalf of the Company that the company was not a party to the reference Application, T. C. No. 218 of 1959, and that the finding of the Bench in its absence that A. C. K. Krishnaswami is the real owner is not binding on it, and that as the decision affected the Company adversely it was desirous of seeking its remedy against the judgment by appropriate proceedings. Though in the petition it was stated that inspection and copies of the documents were required for the defence in Comp. P. No. 87 of 1964 and for prosecuting the suit, C. S. No. 65 of 1964, it was contended in this Court that the Company was contemplating relief against the judgment by review or by an appeal to the Supreme Court and therefore inspection and grant of certified copies of documents was necessary.

(4) This petition is strongly opposed by the first respondent A. C. K. Krishnaswami, on the ground that the application is not bona fide, and that the intention of the petitioner was to have a roving inspection into his documents for ulterior purposes, and that if any document was required for the purpose of prosecuting Comp. P. No. 87 of 1964 or C. S. No. 65 of 1964 the Company might have taken steps of obtain the documents in those proceedings.

(5) If the petitioner contemplated a review or appeal to the Supreme Court he might have taken appropriate steps and then asked for relief, and this petition for inspection and copies of the documents in contemplation of the filing of the review petition or an appeal to the Supreme Court should not be entertained. It was also contended that the documents were in the nature of confidential documents as they related to income-tax proceedings and therefore copies should not be granted.

(6) It is clear from the affidavits filed by the parties that the relationship between the parties is very strained. Several allegations made in the affidavit may not be quite relevant for deciding the question whether the inspection of the documents should be allowed and copies of the same should be granted to it and therefore it is unnecessary to refer to these allegations.

(7) If the petitioner requires the documents for the purpose of his defence in the Company petition or in the original suit it will be appropriate for him to take the necessary steps in those proceedings. So also if the petitioner seeks to have the judgment in T. C. No. 218 of 1959 reviewed or seeks to prefer an appeal before the Supreme Court, he may after filing the review petition or the appeal pray for and obtain relief from either this Court or the Supreme Court. In this petition all that has to be considered is whether for the purpose of enabling the petitioner to filed the contemplated review petition or appeal, inspection of the documents should be allowed and copies thereof furnished to it. When this petition came up for hearing on 20th April, 1965, the petitioner was permitted to have an inspection of the judgment of this Court in T. C. No. 218 of 1959. The petitioner's Counsel was also permitted to note the particulars of the documents referred to in the judgment and if he felt that certain documents have not been properly construed and that he should have inspection of the documents he was directed to furnish a list of such documents with the reasons why he wanted inspection of those documents. This direction was given to enable the petitioner to convince this Court prima facie that certain documents had to be inspected. In pursuance of the order of this Court the petitioner perused the judgment in T. C. No. 218 of 1959, and filed a further affidavit on 23rd April 1965. The petitioner has not made reference to specific documents or given reasons why the documents should be inspected by him but generally stated that it appeared to him that the High Court was not appraised of all the circumstances of the transactions and therefore it was just and necessary that inspection should be granted regarding the documents referred to in Paragraph 6 of the affidavit. In Paragraph 6 of the affidavit he has prayed for inspection of records and proceedings in T. C. No. 218 of 1959 on the file of the court from the time of the reference from the Income-tax Appellate Tribunal till its disposal, and for grant of copies of typed papers and documents referred to at the time of the hearing in T. C. No. 218 of 1959. Copies of the orders of the Tribunal and relevant portions of the order of the Appellate Assistant Commissioner and the Income-tax Officer's orders were also sought for. In effect the petitioner has asked for inspection of all the documents and for certified copies of the documents.

(8) As was pointed out at the outset in this petition, this Court is concerned only with making available material that may be necessary for the petitioner to prefer a review petition. It is only if and when a review petition is filed, the Court that decide T. C. No. 218 of 1959 may be in a position to find on which documents the Court rested its conclusion that the lease was in favour of A. C. K. Krishnaswami and not the Company, and direct inspection of those documents and for furnishing copies of the documents.

(9) At this stage unless it is shown that the conclusion was arrived at by the Bench by relying on certain documents and that those documents should be inspected, it will not be proper to grant the request of the petitioner. In this connection it is necessary to note that if the petitioner wants the documents for the defence in the suit he can obtain them in proceedings in the suit. The petitioner was not a party in T. C. No. 218 of 1959 and therefore the decision of the Bench on the Income-tax Reference will not be binding on the petitioner. So the only purpose in preferring the review petition or an appeal is for correcting what according to the petitioner is an erroneous conclusion. The petitioner has not stated that the Bench has relied on any particular document, and that he should be permitted to have inspection of that document. For the purpose of finding our whether, the Bench has relied on any particular document for coming to the conclusion that the lease was in fact in favour of A. C. K. Krishnaswami, I referred to the Bench on T. C. No. 218 of 1959. In paragraph 22 a reference is made to the Appellate Judgment of the Tribunal. But that reference is only for the purpose of coming to the conclusion that the assessee was well qualified to start an under taking of the kind in which he engaged himself. Again in Paragraph 25 the order of the Tribunal in referred to for the purpose of dissenting from the view of the Appellate Tribunal that the assessee had no real intention of carrying on the business. In Paragraph 34 another passage in the order of the Tribunal is referred to an in Paragraph 35, page 70 of the typed papers is referred to. But there references are not relied upon for the purpose of deciding the question whether A. C. K. Krishnaswami is the person for whose benefit the lease was taken.

(10) Again in Paragraph 37 reference is made to the absence of separate private accounts of the assessee. It is further stated that the assessee produced before the Tribunal his cheque books to show that some of the payments for the maintenance of the mines and for running of the Salem Office were made directly by him. The bench proceeds to observe that these entries do find a place in the books of the Company itself. In this connection it may be stated that the petitioner is in possession of all the account books of the Amalgamated Commercial Trader (Private) Ltd. From a mere reference to certain cheque books produced by A. C. K. Krishnaswami in the Income-tax proceedings it cannot be contended that the Company is entitled to inspection of all the cheque books of A. C. K. Krishnaswami. The petitioner may rely on the Company's accounts in the original suit, O. S. No. 65 of 1964, or in the Company Petition No. 87 of 1964 or in the review petition and convince the Court that the Company was the real lessee, and not A. C. K. Krishnaswami. But on the materials available, it cannot be stated that the bench relied on a particular document for coming to its conclusion and therefore the petitioner is entitled to inspection and copies of those documents. The Office was directed to furnish a certified copy of the judgment to the petitioner. It is upon the petitioner to filed a review petition or an appeal and convince the concerned Court that he is entitled to inspection and copies of the documents. But at this state I am not convinced that for the purpose of the contemplated review or the appeal the petitioner is entitled to inspection of the documents or for having copies thereof. On this ground this petition is dismissed.

(11) As copies of documents which were filed in Income-tax proceedings were prayed for, notice was ordered to the Income-tax Counsel. Mr. Balasubramaniam, the learned Counsel, appeared on behalf of the Department. He submitted that the High Court exercising powers under Section 66 of the Income-tax Act is not an appellate Court and was only exercising special jurisdiction which is different from a Civil Court, and that the function of the High Court was one purely advisory in nature. He also submitted that the Income-tax proceedings are not civil proceedings but were revenue proceedings, to which neither Civil Rules of Practice nor the Appellate Side Rules would apply, and that the rules made by the High Court for inspection of documents and grant of copies thereof in the exercise of its civil jurisdiction are not applicable to Income-tax proceedings before the Supreme Court, no similar provision is made regarding proceedings before the High Court. He further submitted that there was an express provision under Section 54 of the Income-tax Act of 1922, which treated the documents produced in an Income-tax enquiry as confidential and prohibited Courts from divulging any of the materials. Section 54 of the Income Act. 1922, was repealed by the Act of 1961 and re-enacted as Section 137. Section 137 of the Act of 1961 was repealed by the Finance Act of 1964. As the Act stands at present the documents are not treated as confidential but the learned Counsel would contend that by application of Section 6. Clause (c) of the General Clauses Act unless a different intention appears, the repeal of an enactment will not affect any right, privilege, obligation or a liability acquired, or accrued or incurred under an enactment so repealed and therefore the right of the assessee not to have his documents disclosed has not been repealed as no different intention appears in the Finance Act of 1964.

(12) It has been held by the Supreme Court in Commissioner of Income-tax v. Scindia Steam Navigation Co., Ltd. : [1961]42ITR589(SC) , that the jurisdiction of a Court in a Reference under Section 66 is a special on different from its ordinary jurisdiction as a Civil Court, and the High Court hearing a Reference under that section does not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal, and that it acts purely in an advisory capacity on a Reference which properly comes before it under Section 66(1) and (2).

(13) Again in Petlaed Turkey Red Dye Works Co., Ltd. v. Commissioner of Income-tax Bombay, North Ahmedabad, : AIR1963SC1484 , the Supreme Court held that the jurisdiction of the High Court under Section 66 of the India Income-tax Act is purely advisory and is confined to giving opinion on a question of law, arising out of the order of the Appellate Tribunal.

(14) This Court in a case reported in First Additional Income-tax Officer v. Shanmugha Rajeswara Sethupathi : [1963]48ITR647(Mad) , held that the Income-tax proceedings cannot come within the scope of the expression 'civil proceedings'. The same view was reiterated by this Court in Chettiappan v. Income Tax Officer, ILR (1964) 2 Mad 704, where it was held that the Income-tax proceedings are revenue proceedings and that a certificate under Article 133(1)(c) of the Constitution could not be granted. From the decisions cited above, it is clear that the proceedings under the Indian Income-tax Act are not civil proceedings, and that the jurisdiction of the High Court is purely advisory in nature and therefore the rules relating to suits and appeals in exercise of the civil jurisdiction are not applicable to these proceedings.

(15) While it is contended on behalf of the Income-tax Department that in spite of the repeal of Section 137 of the Income-tax Act of 1961, under Section 6 of the General Clauses Act the right of the assessee to his affairs not having disclosed is still protected, the learned Counsel for the petitioner would contend that the protection granted under Section 137 has been taken away and that an intention to take away the protection is apparent from the repeal itself which would exclude the operation of Section 6 of the General Clauses Act, it was further contended on behalf of the petitioner that (while Section 138 of the 1961 Act as amended by) Act V of 1964 a provision is made for application to the Commissioner for information in respect of an assessment made before 1st April, 1960, no corresponding provision is made regarding assessment made before 1st April, 1960 and this would imply that the Legislature intended that no protection should be given regarding information in respect of assessment made before 1st April, 1960. Though the question raised by learned Counsel is interesting, it is unnecessary to decide the question in this petition. For as already observed even if it is taken that there is no prohibition against inspection or furnishing of copies of the documents, the petitioner has failed to make out a case on merits for inspection and for grant of copies of documents.

(16) The petition is dismissed. No order as to costs.


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