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Katikineni Venkata Gopala Narasimha Rama Rao Vs. Chitluri Venkataramayya - Court Judgment

LegalCrystal Citation
Subject civil
CourtChennai
Decided On
Reported inAIR1940Mad768
AppellantKatikineni Venkata Gopala Narasimha Rama Rao
RespondentChitluri Venkataramayya
Cases ReferredIn Bhagain Megh Banee Koer v. Gooroo Petahad Singh
Excerpt:
- orderwadsworth, j.1. these two appeals raise the question of the liability of the appellant on two missing promissory notes, one for rs. 9704 dated 16th february 1932 and the other for rs. 24,400 dated 13th february 1933. the former promissory note formed the subject-matter of o.s. no. 14 of 1935 against which a.s. no. 234 is preferred. the execution of this promissory note was admitted but the defendant (appellant) pleaded that it was discharged except for a small amount. the second promissory note formed the subject-matter of o.s. no. 28 of 1936 (against which a.s. no. 235 is filed) and its execution is totally denied by the appellant. the promisee (plaintiff) was a well-to-do vaisiya money-lender and it is common ground that up to 28th march 1934, he and the defendant, an important.....
Judgment:
ORDER

Wadsworth, J.

1. These two appeals raise the question of the liability of the appellant on two missing promissory notes, one for Rs. 9704 dated 16th February 1932 and the other for Rs. 24,400 dated 13th February 1933. The former promissory note formed the subject-matter of O.S. No. 14 of 1935 against which A.S. No. 234 is preferred. The execution of this promissory note was admitted but the defendant (appellant) pleaded that it was discharged except for a small amount. The second promissory note formed the subject-matter of O.S. No. 28 of 1936 (against which A.S. No. 235 is filed) and its execution is totally denied by the appellant. The promisee (plaintiff) was a well-to-do Vaisiya money-lender and it is common ground that up to 28th March 1934, he and the defendant, an important Mokhasadar, were on very friendly terms and had considerable dealings. On 1st February 1934, the defendant made over the income from some of his lands to his wife for a term of years and it is said that this transaction made the respondent uneasy about his advances to the appellant. On 17th February 1934, both the parties were at Ellore and it is alleged that the respondent, accompanied by P.W. 2, who is admittedly a member of the same community and indebted to the respondent, visited a vakil (P.W. 3) who also belongs to the Vaisya community and who is the legal adviser of P.W. 2. That vakil was asked to draft a promissory note in renewal of previous debts due from the appellant to the respondent, the promissory note to be executed by both the appellant and his wife because of the alienation in the wife's favour already referred to.

2. The plaintiff's case was that the vakil was shown both the promissory notes, not only the note for Rs. 9000 odd but also the note for Rs. 24,400 and that he prepared a draft with reference to those two notes which were to be renewed by the joint promissory note. It is alleged that in the same evening the draft was handed over to the appellant in the shop of P.W. 2 and that an arrangement was made that the appellant should send word to the respondent, so that the latter might come to the appellant's house for the execution of the new promissory note. The respondent leaves at Chintalapudi, the appellant at Pothanur some five miles away from Chintalapudi. On 28th March 1934, there was a meeting of the Ohintalapudi Taluk Board of which both the plaintiff and the defendant were members. It is alleged that there was on that day some slight misunderstanding between them arising out of a vacancy on the District Educational Council. There is nothing to show however that there was any serious quarrel and the incident is only referred to on behalf of the appellant as indicating that the appellant would not be very likely to have to send an invitation on the following day to the respondent. It is by no means clearly established that any real misunderstanding did in fact arise. On 29th March, it is alleged that the appellant sent his servant, G. Sitayya, who has not been examined, to the respondent to ask him to come on the following day with the notes to Pothanur for the execution of the joint promissory note. On the same evening, it is alleged that the appellant himself visited the respondent and told him that he and his wife would execute a fresh promissory note and asked him to bring the prior notes. At the same time he is alleged to have borrowed a further sum of Rs. 300.

3. On 30th March 1934, the respondent went to Pothanur accompanied by his brother Sitayya, (who has not been examined) and a dependant (P.W. 22) in a cart driven by D.W. 2. D.W. 2 denies that he drove the cart and even denies that he knows how to drive a cart and there is reason to think that he has been won over. The party is said to have met P.W. 12 and P.W. 17 on the way to Pothanur and to have told them the purpose of their journey. P.W. 12 is indebted to the plaintiff and P.W. 17's evidence is contradicted by D.W. 1 with reference to the object with which he had gone out that day. Little importance can be attached to either of these witnesses. When they arrived at the appellant's house, the respondent and his companions were asked to go and get their food and return afterwards. They are alleged to have had a meal in the house of the village schoolmaster (D.W. 10) who has been examined to deny this occurrence. He is however obviously subject to the influence of the appellant and no weight can be attached to his denial. When the respondent and his companions returned to the appellant's house shortly after noon, it is alleged that the proceedings were witnessed by three independent witnesses. One is P.W. 4, a Christian employed in a Chintalapudi tannery, who is said to have gone there accidentally when going on his rounds collecting skins. He is mentioned as an eyewitness in the report to the police made the same evening and there is no apparent reason for him to be introduced into the case unless he was actually present. He generally supports the respondent's story.

4. Besides him three other persons belonging to the village of Ganicherla, four miles from Pothanur, are said to have been present. They are P.Ws. 5 and 6 and another man who has not been examined. Their presence is not mentioned in the complaint to the police. P.Ws. 5 and 6 are both indebted to the plaintiff. They are said to have gone to the respondent's house to buy timber. They support the respondent's version of the occurrence but the fortuitous presence of these persons who are indebted to the respondent at the time o this occurrence must necessarily be suspicious and the suspicion is enhanced by the omission of their names from the complaint to the police. No great weight can therefore be attached to their evidence. The respondent's story of the occurrence at 1 P.M. on 30th March is briefly this:

He and his party were sitting on the verandah. The appellant went inside to call his wife and came out saying that his wife was behind the door, she being a lady who does not appear in public. The appellant said that he would read the notes to his wife and asked the respondent for them. The respondent handed over the whole bundle of promissory notes. The appellant began reading out the note for Rs. 24,400 and suddenly rushed into the house with the notes in his hand and bolted the door from inside. He then called to his servant Subbayya, whose presence is spoken to by all the respondent's witnesses, and told him to drive the respondent's party away. Then some 25 or 30 of the appellant's servants came with sticks and drove them out. The respondent and his companions returned on foot to Chintalapudi meeting P.W. 12 and another on the way. P.W. 12 is significantly another of the plaintiff's debtors and his evidence carried the matter little further. At 10 P.M. on the night of the 30th, the respondent made a complaint to the Chintalapudi police. This complaint (Ex. 13) states that the appellant was indebted under the two promissory notes the second of which was in respect of the respondent's wife's money, that as a result of the conveyance of the appellant's property to his wife, the respondent pressed for payment and on the invitation of the appellant went to Pothanur with his brother and P.W. 22 taking 'the aforesaid promissory notes' and it mentions the cart driver D.W. 2. The appellant asked them to come back at noon so that all the old promissory notes could be read over to his wife. Ex. 13 then describes briefly the incident in the afternoon mentioning the presence of P.W. 4. There are certain significant omissions from Ex. 13. The most important is that it says nothing about the respondent's brother Mallayya to whom the major portion of the money due under the promissory note for Rs. 24,400 is alleged to have been originally due. It does not mention the presence of P. Ws, 5 and 6 nor does it refer to the witnesses who are said to have met the respondent on his way to and from Pothanur.

5. This complaint was investigated by the police. On 4th April 1934 the respondent made a statement to the police which is Ex. 17. In that statement he says that the promissory note for Rs. 24,400 was executed in substitution for two debts due under promissory notes by the appellant to the respondent's wife and his brother Mallayya. The respondent was apparently asked if this larger promissory note was mentioned in his ledger and he said that he would search for the ledgers and then say that he could not say if that amount was entered separately in another book or if it was entered in the usual book and he could not say if he had opened a ledger in his wife's name. He said that he had taken his account books on 1st of April to show to his vakil with reference to a civil suit, and had handed them over to his younger brother and that he would make a fuller statement after sending for the books from Ellore. It must be conceded that the terms of the statement to the police do not suggest that the respondent at that time was confident that the details regarding this transaction for Rs. 24,400 would be found in his ordinary accounts. The criminal case against the appellant failed and subsequent revisional proceedings were also unsuccessful. The respondent thereafter filed first a suit on the admitted promissory note for Rs. 9000 odd and it was only after this suit had made some progress that the further suit was filed on the promissory note for Rs. 24,400 and the two suits were clubbed together for trial.

6. There are numerous circumstances in this case which have made it very difficult to come to a confident conclusion. Prima facie, the evidence adduced by the respondent regarding the occurrence at Pothanur is such as to give rise to suspicion. Nearly all the witnesses who speak to this occurrence are his caste men or demonstrably persons amenable to his influence. The delay in filing the criminal complaint was sufficient to permit of some exaggeration if the complainant had been so minded. The omission of reference to Mallaya's debt in Ex. 13, the addition to the original story of several apparently interested witnesses and the non-committal attitude of the respondent on 4th April when questioned about his accounts, were also circumstances which would justify a suspicion that we had to deal with a story which was undergoing developments; and it may well have been that these suspicious factors led to the failure of the criminal case. On the other hand, there are many circumstances which prevent us from rejecting the respondent's story as a completely false story, though no doubt it was supported by a considerable volume of dubious evidence. It cannot be denied that something must have happened at Pothanur on 30th March which led to the complaint (Ex. 13) and we see no reason to doubt that the incident which led to this complaint was witnessed by the tannery employee (P.W. 4). Otherwise, there is no apparent reason for including his name in that complaint. It was probably also witnessed by the cart driver, D.W. 2, who has been prevailed upon to deny all knowledge of the occurrence.

7. The defence story is a complete denial of the whole occurrence coupled with a denial of the execution of the promissory note for Rs. 24,400 and the prior notes which led up to that transaction and also with a story of discharge of the earlier promissory note except for a sum of Rs. 500 odd. Now, it seems to us clear that the defence evidence must be to a great extent, if not entirely, false evidence. It is common ground that the respondent and the appellant, both men of influence and position, were on very friendly terms up to 30th March 1934; the slight incident on the 28th, even if true, was admittedly not of such importance as to effect generally friendly relationship. In such circumstances, it is incredible that the respondent, a rich Vaisya money lender, should have invented out of nothing at all a completely false story of an outrageous crime whereby he could fasten upon his friend a liability for approximately Rs. 34,000, which was not true at all. It would of course be quite conceivable, if there had been a violent quarrel between the parties connected with the admittedly genuine promissory note for Rs. 9000 odd, and resulting in the destruction or appropriation of this promissory note, that the respondent might have utilized the interval between this incident and his complaint to exaggerate the story and add to it a false claim for Rs. 24,000, and in such circumstances it is conceivable that the appellant might have retaliated by putting forward a false story of discharge of the admitted promissory note and have denied the whole occurrence in order to support his false story of discharge.

8. Such a theory would explain the delay in the complaint and its omissions, the hesitations of the respondent in his first statement to the police and the anxiety of the respondent to add to his witnesses a number of persons subject to his control who would support the details of his story. It would also explain the anxiety of the appellant to repudiate the whole occurrence, his unwillingness to produce his own accounts and the not very convincing evidence adduced by him of the discharge of the earlier promissory note. But such a theory can only be entertained in the absence of reliable evidence that this promissory note for Rs. 24,400 was in existence before 30th March. If the respondent can prove that this large debt was evidenced by a promissory note which had been in his possession long before this alleged occurrence on 30th March 1934, it is incredible that he would have concocted a false story of the loss of the promissory note instead of simply filing a suit upon it. We are unable to accept the theory that there was no occurrence at Pothanur on 30th March 1934 and unless it is possible to show that the respondent's story of what happened that day has been exaggerated probably by the inclusion of a promissory note for Rs. 24,400 which did not exist amongst the documents lost on that day, the only possible inference from the appellant's denials, from the false evidence which he has adduced, from the suppression of his accounts and from the failure to; examine his two servants, Sitayya and Subbayya who are alleged to have taken part in this occurrence, is that the respondent's story must be substantially true.

9. The main question in this case therefore becomes the question whether the existence of this promissory note for Rs. 24,400 before 30th March 1934 has been satisfactorily demonstrated. (After examining certain evidence the order proceeded further.) The most conclusive piece of evidence on this question of the previous existence of the promissory note for Rs. 24,400 is provided by Exs. E and H which are certified copies of the income statement and profit and loss statement, the latter purporting to have been signed by the plaintiff on 17th May 1933, the former of which sets forth this debt of Rs. 24,400 as due to the respondent. There is, however, a serious difficulty with reference to the admissibility of this evidence. Objection was taken to it at the time when it was tendered and we deem it necessary to refer to a Full Bench the question of its admissibility in view of the decision of our learned brothers Burn and Stodart JJ. in Mythili v. Janaki : AIR1940Mad161 . In our opinion, the evidential value of these income-tax documents is such that if they are admitted, the correctness of the lower Court's conclusion is clear. If they are to be rejected, we shall have to decide hereafter whether the remaining evidence is sufficient to establish the pre-existence of this note for Rs. 24,400, which if established, seems to us, in view of the defendant's denials and suppressions, to warrant the decree which has been given.

10. The legal difficulty may be briefly stated. Exs. E and H are both certified copies. If the original is a public document within the meaning of Section 74, Evidence Act, then the certified copies are good secondary evidence of that original under Section 65(e). If these statements are not public documents we are unable to see how the certified copies can be admitted into evidence under any other clause of Section 65, Evidence Act. Section 74 defines public documents as documents forming the acts or records of the acts : (1) of the sovereign authority, (2) of official bodies and tribunals and (3) of public officers, legislative, judicial and executive, and the term includes also public records kept in British India of private documents. The question is whether an income-tax return and the statements accompanying it form part of the record of the act of the Income-tax Officer who makes the assessment. In the case just referred to the learned Judges decided, without quoting any authority other than the statutory provisions, that it was the policy of the law that statements made in income-tax returns should not be used in evidence against the person making them or against anyone else, that income returns could not be proved by secondary evidence and that the income-tax return was not part of the record of the act of assessment and not a public document as defined in Section 74, Evidence Act.

11. In coming to this conclusion, the learned Judges appear to have been greatly influenced by the provisions of Section 54, Income-tax Act, which prohibits the disclosure by any public servant of particulars contained in an income-tax return or statement. Now, quite clearly, this Section applies only to disclosures and does not prohibit the Income-tax Officer from giving to the person who made the return a copy of that return. In fact, we are informed that the departmental orders expressly provide for the giving of such a copy to the assessee on application. It seems to us that there is no ground of public policy which would prevent such an assessee from using in evidence such a copy when it has been granted to him. Nor are we convinced that the ground of public policy is a sufficient reason for excluding from evidence any document which is legally admissible under the Evidence Act and is not excluded by any statutory prohibition. This view has been adopted in the case in Venkataramana v. Varahalu : AIR1940Mad308 , a decision of Varadachariar and Pandrang Row JJ., anterior to the decision of Burn and Stodart JJ. but apparently not brought to their notice. Varadachariar and Pandrang Row JJ. were actually dealing with a copy of a statement recorded by the Income-tax Officer which clearly was a public document and they held that certified copies of such a statement were admissible notwithstanding the provisions of Section 54, Income-tax Act.

12. The learned Judges refer to a decision in Anwar All v. Tafozal Ahmad A.I.R.(1925) Rang. 84 wherein a single Judge held that income-tax returns being made confidential by Section 54, Income-tax Act, certified copies of such a return could not lawfully be given and if given could not be used in evidence. In Devidutt v. Shriram Narayandoss : AIR1932Bom291 a Bench of the Bombay High Court held that certified copies of an income-tax return could not be given in evidence, because the return is not a public document within the meaning of Section 74, Evidence Act, and that the prohibition in Section 54, Income-tax Act, was sufficient to warrant the view that a certified copy could not be lawfully obtained and would not be admissible in evidence if obtained. It seems to us that these decisions raise a question of far reaching importance. With all respect to the learned Judges who have held otherwise, we do not consider that the prohibition against the disclosure of the contents of an income-tax return can have any bearing on the admissibility of the contents of that return filed at the instance of the person who made it. If the income-tax return is a part of the record of the act of the Income-tax Officer making the assessment, a certified copy of that document can lawfully be given, subject to the prohibition against disclosure in Section 54, Income-tax Act. If it has been so given, then by the terms of Section 65, Evidence Act, it is, no matter who produces it, good evidence of the original, provided that the original is a public document; and we do not think that considerations of public policy can warrant its exclusion from evidence. If an income-tax return is not a public document, as being part of the record of the act of the assessing officer, it is difficult to see how a plaint or written statement in a civil suit or a complaint in a criminal case can be deemed to be public documents such as can be proved by the production of certified copies. It is the almost universal practice of the Courts to grant certified copies of such documents and to admit them in evidence, though the admissibility of a certified copy of a plaint appears to have been successfully challenged in one or two cases not of this High Court.

13. We are inclined to the view that an income-tax return, being the basis of the Income-tax Officer's assessment, must be treated as part of the record of the act of assessment and must therefore be regarded as a public document of which a certified copy can be given in evidence. The matter however being the subject of somewhat conflicting rulings of Benches of this High Court, we refer to a Full Bench the following question : 'Whether a profit and loss statement and a statement showing the details of net income, filed by an assessee in support of his return of income furnished under Section 22, Income-tax Act, are public documents with reference to Section 74, Evidence Act, of which certified copies would be admissible under Section 65(e), Evidence Act.'

Leach, C.J.

14. Before proceeding to examine the provisions of the Sections of the Evidence Act mentioned in the question under reference, it is desirable to state the effect of Section 54, 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, Income-tax Act, states that all particulars contained in a statement made, return furnish eel, or accounts or documents produced under the provisions of the Act, or in evidence given in the Court of proceedings under the Act other than proceeding under Chap. 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 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.

15. 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 Evidence Act. Para. 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 actually 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. I will now turn to the relevant provisions of the 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 dominions, or of a foreign country; (2) public records kept in British India of private documents.

16. Section 75 states 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 opinion on the question I will first refer to certain of the cases which have been quoted in argument.

17. In Anwar All v. Tafozal Ahmad A.I.R.(1925) Rang. 84 a single Judge of the Rangoon High Court held that income-tax returns being made confidential by reason of Section 54, 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, Evidence Act, and decided against the admissibility of the certified copies submitted on the ground that Section 54, 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.

18. A Bench of the Bombay High Court considered the question of the admission of certified copies of income-tax returns in Devidutt v. Shriram Narayandoss : AIR1932Bom291 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 All v. Tafozal Ahmad A.I.R.(1925) Rang. 84. 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, 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, 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 Evidence Act. Where the original cannot be produced the best secondary evidence must be a true copy.

19. A Bench of this Court (Varadachariar and Pandrang Row JJ.) held in Venkataramana v. Varahalu : AIR1940Mad308 , 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, 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, Evidence Act, the learned Judges concurred in the opinion expressed by the Bombay High Court in Devidutt v. Shriram Narayandoss : AIR1932Bom291 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.

20. The question whether an income-tax return is a public document was discussed at some length by a Bench of this Court (Burn and Stodart JJ.) in Mythili v. Janaki : AIR1940Mad161 and the conclusion arrived at was that it is not a public document within the meaning of Section 74, Evidence Act. The learn, ed 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, Evidence Act, is correct.

21. The judgments in Venkataramana v. Varahalu : AIR1940Mad308 and Mythili v. Janaki : AIR1940Mad161 indicate that in the opinion of 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, 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 assessee or under the assessee's directions. In my opinion, this interpretation of Section 74, Evidence Act, is too limited. Section 22, 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 : AIR1940Mad308 , 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 sea 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.

22. As the learned Judges who have made the 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 or summonses or notices or interlocutory orders or the judgment in the case. In Bhagain Megh Banee Koer v. Gooroo Petahad Singh (1876) 25 W.B. 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 my judgment, it would be putting an unwarranted restriction on the words 'documents forming the acts or re. cords 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. I would make the costs of this reference costs in the cause.

King, J.

23. I agree.

Somayya, J.

24. I agree.


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