TMI Blog1982 (1) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... e judge and the Income-tax Department, Monghyr, sent the document to the court without any objection. The defendant then wanted to tender the paper in evidence and to get it marked as an exhibit. The plaintiff objected. The prayer of the defendant has been rejected by the learned Subordinate judge by the order impugned in this revision application. Mr. D. N. Sinha, learned counsel appearing in support of this application, has contended that the learned subordinate judge erred in relying upon the decisions including the case in Banarsi Devi v. Janki Devi [1959] 37 ITR 510 (Pat), which were decided when the earlier Act being the Indian I.T. Act, 1922, was in force. The position under the Act of 1961, after the repeal of s. 137 in 1964, is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of any such record, or to give evidence before it in respect hereof." Relying on this provision, a Division Bench of this court in Banarsi Devi v. Janki Devi [1959] 37 ITR 510 (Pat), held that in appeal the income-tax documents could not be produced in evidence by any other person unless they come within the exception mentioned in sub-s. (3). The position of the assessee was considered to be different on the principle that a person entitled to an advantage can waive the same. In 1960 new provision was introduced by amendment under s. 59B, which reads as follows : " 59B. Disclosure of information respecting tax Payable.-Where a person makes an application to the Commissioner in the prescribed form and after payment of the prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or document shall be furnished or produced by a public servant in respect of such matters relating of such class of assessees or except to such authorities as may be specified in the order." It is plain from these provisions that earlier the records of assessment proceedings prepared for the purpose of I.T. Act were made confidential and a prohibition was imposed on courts from requiring any public servant to produce any part thereof and to give evidence in respect thereof by way of curtailment of the scope of the Indian Evidence Act in this field. In 1964, the embargo against the court's power was totally omitted and s. 138 was retained in a modified form. In the original s. 138 person could seek information from the Commissioner as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation relating to any assessee in respect of any assessment made under this Act or the Indian Income-tax Act, 1922 (11 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." The defendant contends that as a result of this amendment, the right of the plaintiff, of claiming confidential nature of his income-tax documents, has disappeared and the earlier decisions have no relevance now since the matter concerns the I.T. Dept. of the Union of India also, and s. 138 refers to the discretion of the Commissioner of Income-tax, in regard to certain matters, in the stated circumstances, I considered it exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right of a person in regard to calling for the tax documents of another or seeking information was or is, at any point of time, uncontrolled. In one case, the discretion of the Commissioner has been expressly mentioned in the section and in the other the discretion of the courts is implied. It must be presumed that a court shall not grant a prayer where it amounts to an abuse of the process of the court. Of course the discretion of the two authorities has to be exercised differently in accordance with the scope and purpose. It is, therefore, futile to suggest that in substance although the embargo on the court's power has been lifted by repeal of s. 137, the repeal should be ignored and not given effect to on the strength of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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