The relevant portion of the Order of Reference delivered by Wadsworth, J., on March 13, 1940 was as follows :-
'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 the case of Mythili Ammal v. Janaki Ammal. In our opinion the evidential value of these Income-tax documents is such that if they are admitted, the correctness of the lower Courts 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 defendants denials and suppressions, to warrant the decree which has been given.
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 of the 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 of the 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 or private documents. The question is whether an Income-tax return and the statements accompanying it from 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 any one else, that income-tax 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 of the Evidence Act. In coming to this conclusion, the learned Judges appear to have been greatly influenced by the provisions of Section 45 of the Indian 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 of Venkataramana v. Varahalu 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 provision of Section 54 of the Indian Income-tax Act. The learned Judges refer to a decision in Anwar Ali v. Tafozal Ahmad wherein a single Judge held that Income-tax returns being made confidential by Section 54 of the 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 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 of the Evidence Act and that the prohibition is Section 54 of the Indian 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-teaching importance. With all respect to the learned Judges who have held otherwise, we do not consider that prohibition amongst the disclosure of the contents of an Income-tax return can save 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 the document can lawfully be given, subject to the prohibition against disclosure in Section 54 of the Indian Income-tax Act. If it has been so given then by the terms of Section 65 of the 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 assessing officer, it is difficult to see how a plaint of 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 Court 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. We are inclined to the view that an Income-tax return being the basis of the Income-tax Officers assessment, must be treated as part of the record of the act of assessment and mush therefore be regarded as a public document of which a certified copy can be giver 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 of the Indian Income-tax Act, are public documents with reference to Section 74 of the Evidence Act of which certified copies would be admissible under Section 65 (e) of Evidence Act.'
These Appeals and petitions coming on for hearing in pursuance of the aforesaid order of Reference, the Court, The Honourable Sri Alfred Henry Lionel Leach, Chief Justice. The Honourable Mr. Justice King, and The Honourable Mr. Justice Somayya, expressed the following :
LEACH, C. J. - Before proceeding to examine the provisions of the section 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 Court of proceeding under the Act other than proceedings under chapter VIII (which relate 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.
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 instruction 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 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 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 Majestys dominion or of a foreign country;
(2) public records kept in British India of private documents.
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. Cl. (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.
In Anwar Ali v. Tafozal Ahmad a single Judge of the Rangoon High Court held that Income-tax return 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 purposed if he so desires. So far as the assessee is concerned he is not bound to treat the document as confidential.
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 Narayandoss 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 Ahmad. 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 excluded 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.
A Bench of this Court (Varadachariar and Pandrang Row, JJ.) held in Venkataramana v. Varahalu 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 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.
The question whether an Income-tax return is a public document was discussed at some length by the Bench of this Court (Burn and Stodart, JJ.) in Mythili Ammal v. Janaki Ammal 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 Judged 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 Office 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.
The judgment is Venkataramana v. Varahalu and Mythili Ammal v. Janaki Ammal 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 of the Evidence Act, unless it be a statement recorded by the Income-tax Office himself or an order passed by him, and therefore does not include a document drawn up by the assessee or under the assessees directions. In my opinion this interpretation of Section 74 of the Evidence Act is to 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 fulfillment 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 to 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 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.
As the earned 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 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 of the judgment in the case. In Bhagain Megh Ranee Kooer v. Gooroo Pershad Singh Garth, C. J., and Birch, J., expressly held that 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 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 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 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. - I agree.
SOMAYYA, J. - I agree.
Question answered in the affirmative.
These appeals and these petitions coming on for final hearing after the expression of the opinion of the Full Bench on the question referred to, the Court delivered, on 30th April, 1940, the following :
WADSWORTH, J. - The Full Bench have decided that the certified copies Exs. E and H are admissible in evidence of the contents of the original statements. These statements are relevant both as corroborating the evidence of the plaintiff himself and as rebutting the contention that the promissory note was fabricated at a date subsequent to that on which the statements were made. They are not being used to impose a liability on the defendant but to rebut a contention of fabrication which is inconsistent with the existence of these statements. The appeals are therefore dismissed with costs, including costs of the reference to the Full Bench - Advocates fee for the reference Rs. 150. The petitions under Act IV of 1938 are remitted to the trial Court for disposal.