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Subhas Chandra Majumdar Vs. Pijush Kanti Majumdar - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCriminal Revision No. 1725 of 1979
Judge
Reported in84CWN459,[1980]122ITR552(Cal)
ActsIncome Tax Act, 1961 - Sections 137 and 138; ;General Clauses Act, 1897 - Section 6; ;Income Tax Act, 1922 - Section 54
AppellantSubhas Chandra Majumdar
RespondentPijush Kanti Majumdar
Appellant AdvocateSukumar Sen, Adv.
Respondent AdvocateAjit Kumar Chakraborty, Adv.
Excerpt:
- .....if a public servant discloses any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, 'deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine.' 3. section 137 of the 1961 act, which act repealed the 1922 act, was substantially in identical terms as section 54 of the 1922 act. by section 32 of the finance act, 1964, section 137 of the act of 1961 was omitted.4. from the above provisions, it is evident that under section 54 of the 1922 act and section 137 of the 1961 act all particulars contained in the records of assessment before the income-tax authorities as mentioned therein were to be treated as confidential and no court was entitled to require any public servant nor.....
Judgment:

Manoj Kumar Mukherji, J.

1. On a complaint filed by the petitioner, the two accused/opposite parties are now facing trial in the 14th court of the learned Metropolitan Magistrate, Calcutta, under sections 406, 403 and 477A of the Indian Penal Code. During the trial the complainant has examined a number of witnesses and exhibited a number of documents, including certain records maintained by the IT. authorities in respect of the firm of M/s. Ghose Mazumdar & Co. These records including the I.T. returns of the firm were exhibited through P.Ws. 22 and 23 who were the officers of the said department. After P.W. 23 was partly examined and some of those documents were exhibited, a petition was filed on behalf of the accused persons questioning the admissibility of the records of the, I.T. Department as evidence. As such an objection was not taken when the witness was summoned and his evidence commenced, the learned Magistrate decided to take up the petition for hearing after the evidence of the witness was concluded. The petition was subsequently heard and by his order dated August 29, 1979, the learned Magistrate accepted the contention of the accused persons and held that the documents of the I.T. Dept. so far as they related to the period prior to April 1, 1964, should be expunged from the record being inadmissible in evidence but those relating to the periods subsequent thereto were legally admissible. In so deciding the learned Magistrate relied upon Section 137 of the I.T. Act, 1961, which was omitted with effect from April 1, 1964. Aggrieved by the said order, the complainant moved this court and obtained the present rule.

2. The only question, therefore, that falls for determination in this rule is whether the learned Magistrate was justified in expunging from the record the evidence adduced on behalf of the complainant in the shape of documents of the I.T. Dept. relating to the periods prior to April 1, 1964. To answer this question it would be necessary to set out the relevant provisions of the Indian I.T. Act, 1922, and the I.T. Act, 1961. Sub-sections (1) and (2) of Section 54 of the 1922 Act read as follows:

' (1) All particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of this Act, or in any evidence given, or affidavit or deposition made, in the course of any proceedings under this Act other than proceedings under this Chapter, or any record of any assessment proceeding, or any proceeding relating to the recovery of a demand, prepared for the purposes of this Act, shall be treated as confidential, and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall, save as provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record, or to give evidence before it in respect thereof.

(2) If a public servant discloses any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, 'deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine.'

3. Section 137 of the 1961 Act, which Act repealed the 1922 Act, was substantially in identical terms as Section 54 of the 1922 Act. By Section 32 of the Finance Act, 1964, Section 137 of the Act of 1961 was omitted.

4. From the above provisions, it is evident that under section 54 of the 1922 Act and Section 137 of the 1961 Act all particulars contained in the records of assessment before the income-tax authorities as mentioned therein were to be treated as confidential and no court was entitled to require any public servant nor was the public servant permitted to produce them except to the extent expressly provided for. In view of these provisions, no court could call upon the income-tax authorities to produce any record relating to an assessment but the policy was changed when Section 137 was omitted from the 1961 Act with effect from 1st of April, 1964.

5. The question, therefore, that now falls for determination is whether, due to such repeal of Section 137, a competent court is entitled to call for documents in respect of a period when the said Section 137 was in the statute book. In my considered view the question can be answered only in the light of the provisions of Section 6(c) of the General Clauses Act, 1897, the relevant portion of which reads as follows:

' 6. Where this Act, or any Central Act or regulation made after the ommencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--......

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. '

6. After having given my anxious consideration to the provisions of Section 137 of the 1961 Act, I am of the view that it put an absolute embargo upon the income-tax authorities from disclosing all kinds of documents and thereby cast upon them an obligation within the meaning of Section 6(c) of the General Clauses Act, 1897. A corresponding privilege also existed in favour of the persons who filed or produced the documents before the income-tax authorities. It has then to be determined whether the repeal of Section 137 revealed a ' different intention ' within the meaning of Section 6 of the General Clauses Act, so as to make Clause (c) thereof inapplicable. If it was a case of simple repeal there would not have been any scope for determining the contrary intention of the legislature. But then the modification of Section 138 of the Act, after repeal of Section 137, casts a duty upon the court to look into the contents of the said section for the purpose of determining whether they indicate a different intention. Section 138, as it originally stood in the 1961 Act, read as follows :

' 138. Where a person makes an application to the Commissioner in the prescribed form and pays the prescribed fee for information as to the amount of tax determined as payable by any assessee in respect of any assessment made either under this Act, or the Indian Income-tax Act, 1922 (XI of 1922), on or after the 1st day of April, 1960, the Commissioner may, notwithstanding anything contained in Section 137, if he is satisfied that there are no circumstances justifying its refusal, furnish or cause to be furnished the information asked for. '

7. By Section 33 of the Finance Act, 1964, Section 138, was substituted as under :

' 138 (1) Where a person makes an application to the Commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made either under this Act or the Indian Income-tax Act, 1922 (XI of 1922), on or after the 1st day of April, 1960, the Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any court of law.

(2) Notwithstanding anything contained in Sub-section (1) or any other law for the time being in force, the Central Government may, having regard to the practices and usages customary or any other relevant factors, by order notified in the Official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order.'

8. By Finance (No. 2) Act, 1967, Sub-section (1)of Section 138 was substituted by the following Sub-section:

' 138. Disclosure of information respecting assessees,--(1)(a) The Board or any other income-tax authority specified by it by a general or special order in this behalf may furnish or cause to be furnished to-

(i) any officer, authority or body performing any functions under any law relating to the imposition of any tax, duty or cess, or to dealings in foreign exchange as defined in section (2)(d) of the Foreign Exchange Regulation Act, 1947 (VII of 1947); or

(ii) such officer, authority or body performing functions under any other law as the Central Government may, if in its opinion it is necessary so to do in the public interest, specify by notification in the Official Gazette in this behalf,

any such information relating to any assessee in respect of any assessment made under this Act or the Indian Income-tax Act, 1922 (XI of 1922), as may, in the opinion of the Board or other income-tax authority, be necessary for the purpose of enabling the officer, authority or body to perform his or its functions under that law.

(b) Where a person makes an application to the Commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made under this Act or the Indian Income-tax Act, 1922 (XI of 1922), on or after the 1st day of April, 1960, the Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any court of law.'

9. From a plain reading of Section 138, as it now stands, it would appear that the Commissioner has been given the sole power to decide as to whether it is in public interest to furnish or cause to be furnished the information asked for in respect of any assessment. Though the rigidity regarding disclosure of the information furnished to the income-tax authorities has been relaxed to some extent after the repeal of Section 137, yet the legislature has put a check upon such disclosure *by vesting the Commissioner with the necessary powers not to disclose any document. It cannot, therefore, be said that the intention of the legislature was to withdraw or destroy the privilege altogether which accrued to a person before April 1, 1964. That necessarily means that the subsequent legislation does not reveal a different intention,

10. I am, therefore, of the opinion that in view of Section 6(c) of the General Clauses Act, all documents filed or produced before the income tax authorities in assessment proceedings under the Act of 1961, on or before March 31, 1964, i.e., prior to the repeal of Section 137 from the Act of 1961, received protection and the income-tax authorities cannot be asked by any court to produce them ; and as a corollary thereto, it must also be held that such documents could not be received in evidence. The order of the learned Magistrate must, therefore, be upheld.

11. The application, accordingly, fails and the rule is discharged.


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