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TMI Blog1966 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff by her father and kept by himself as trustee for her in or about Karthigai-Margali of Akshaya year for improving and augmenting the same, and after his death kept, managed, controlled and improved by the defendants as trustees for the plaintiff and for a decree against the first defendant for payment to the plaintiff of such amount as may be found due on rendition of accounts. While the suit was pending, the petitioner applied to the Subordinate Judge under rule 76 of the Civil Rules of Practice for summoning from the Income-tax Officer certain documents. One of these documents related to the income-tax examination proceedings notes pertaining to the first defendant for the year Vikrama (1941-42) in respect of the sale proceeds of 5 per cent. Government of India Bonds (1940-43). The second is eight iynthogais in original from Vikrama to Sarvajith (assessment years 1941-42 to 1948-49) submitted by the first defendant and, lastly, the interest payment examination notes of the year Vehudhanya (1939-40) in respect of interest amount credited to the plaintiff, and daughter of the second defendant, Kalyani Achi, the then assessee on behalf of the minor adopted son, the first defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer the matter to a Division Bench. Before we proceed to consider the point in controversy, it is first necessary to notice the relative statutory provisions. Section 54 of the Income-tax Act, 1922, related to disclosure of information by a public servant. By sub-section (1) of that section, it was enjoined that the particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the Act, or in any evidence given or affidavit or deposition made, in the course of any proceedings under the Act, except under Chapter VIII or in any record of any assessment proceedings, should be treated as confidential. The second limb of sub-section (1) put a bar on courts and directed that no court, except as provided by the section, shall be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part thereof or to give evidence before it in respect thereof. Sub-section (2) made disclosure by a public servant of such particulars an offence punishable with a term of imprisonment besides fine. Sub-section (3) provided for certain exceptions to the bar against disclosure. The Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that no particulars contained in any document whatever filed or produced during assessment proceedings are confidential and the bar on the court from summoning for such particulars is lifted. Section 138(2) of the Income-tax Act, 1961, gives the power to the Central Government, as we said, to specify by a notified order the particulars which might be treated as confidential. Section 280, as modified, visits the delinquent officer who contravenes an order notified under section 138(2) with penal consequences. It is common ground that no order has so far been notified under section 138(2) as far as our attention has been invited to. The question is what precisely is the effect of the omission of section 137 from the Income-tax Act, 1961, by the Finance Act, 1964 ? The effect of a repeal--and we proceed on the assumption that omission of a section from the statute book is tantamount to a repeal--is, generally speaking, as if the repealed Act never existed except as to things completed or closed. But in view of this effect, the Indian Legislature enacted the General Clauses Act, 1897, which has been more or less modelled on the provisions of the English Interpretation Act. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of 1964, there is modified restriction by virtue of section 138, clause (2), introduced by the same Act. " This, according to the learned judge, is an indication of the intention to the contrary rendering section 6 of the General Clauses Act inapplicable. Venkataraman J. was, however, of a different view in Ramakrishna Mudaliar v. Rajabu Fathima Bukari. He considered that section 138(2) was not incompatible or inconsistent with the effect of section 137 being continued notwithstanding its omission by reason of section 6 of the General Clauses Act. The learned judge took note of the fact that actually, as far as he was informed, there was no notified order under section 138(2). The learned judge went further and thought that the matter covered by section 137 would fall within the ambit of section 6(c) of the General Clauses Act. He observed that the Income-tax Officer incurred an obligation when documents were filed before him and that obligation continued until repeal of that section, and that this obligation of the Income-tax Officer was to be correlated to the corresponding right of the assessee concerned to forbid the Income-tax Officer from giving evidence in relation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in itself does not create any liability or right or privilege. We think that the declaration is not from the point of view of any particular individual. Such a declaration does not confer a right or impose an obligation on any specified person. No particular person can, by virture of this declaration, be said to have incurred an obligation or acquired a right or privilege. The confidence is directed to be kept in respect of the particulars not by any particular officer but it is attached to the very particulars. Likewise, the second part of sub-section (1), as it seems to us, contains but a bar on courts from summoning for the specified particulars. So too, sub-section (2) enjoins a prohibition against any public servant disclosing such particulars. Neither a mere bar on the court or on the scope of its jurisdiction nor the prohibition against any public servant from disclosing the particulars may by itself amount to an obligation incurred. We are inclined to think that not every obligation, however abstract, necessarily involves a corresponding right also in the abstract. The bar on courts really relates to the power of the court and the prohibition against any public officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned judge in that decision also quoted from Abbott v. Minister for Lands, the following observation which, we think, is pertinent to the present consideration : " The mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed to be a 'right accrued' within the meaning of the enactment. " . It is no doubt true that an assessee who files documents before an Income-tax Officer may feel aggrieved by the disclosure by that officer of the particulars therein contained. But what he can do about it and what is his right in relation to it ? He cannot take any action by himself. All that he can do is to bring it to the notice of the proper authorities that there has been a contravention by the Income-tax Officer. But this fact is not peculiar or limited to the assessee, for it is open to any member of the public to bring such a contravention to the notice of the authorities. Hardly can it be said that this phenomenon is based on a right or privilege. When an offence has been committed under t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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