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TMI Blog1973 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... well as estate duty authority for producing the following documents : 1. Assessment orders for the years 1960 to 1967 of Atba-C-Malak Badar Trust, Nagpur, and the statements. 2. The order dated March 31, 1959, of the estate of late M.E.R. Malak of Nagpur and the statement filed by him. The applicant-plaintiff claimed a privilege regarding these documents and submitted that they cannot be admitted in evidence, nor their production can be compelled in court of law. According to the plaintiff, such rights are expressly vested in the plaintiff and the production of these documents is also expressly prohibited by law. The trial court by its order dated August 7, 1968, held that: "Hence, in my opinion, as far as the returns filed and statements made up to April 1, 1964, the court cannot summon or look into them. As far as the documents pertaining to the period after April 1, 1964, certainly the court would look into them, if produced by the Income-tax Officer. Of course, the court will not force him to produce it, if he claims privilege and the court while issuing the summons also will not order the production of the documents, but only this much will be mentioned that, if the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole order passed by the civil judge, senior division, is without jurisdiction. Section 54 of the Indian Income-tax Act, 1922, was as-under: "54. (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 in 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or (i) of such facts to an authorised officer of the United Kingdom, or of any part of His Majesty's Dominions which has entered into an agreement with India for the granting of double taxation relief, as may be necessary for the purpose of enabling such relief or a refund under section 49 or section 49 AA of this Act to be given, or (j) of such facts, to an officer of a State Government, as may be necessary for the purpose of enabling that Government to levy or realise any tax imposed by it, or (k) of such facts to any authority exercising powers under the Sea Customs Act, 1878 (8 of 1878) or any Central Act imposing a duty of excise as may be necessary for enabling it duty to exercise such powers, or (l) of such facts, to any person charged by, law with the duty of inquiring into the qualifications of electors as may be necessary to establish whether a person is or is not entitled to be entered on a electoral roll, or (m) of so much of such particulars, to the appropriate authority, as may be necessary to establish whether a person has or has not been assessed to income-tax in any particular year or years, where under the provisions of any law for the time being in force s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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." From 1st April, 1964, section 137 was deleted and section 138 as it stands to-day reads as under: "138. (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 ; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trar of Companies was specified as one of the authorities as contemplated by section 138 of the said Act. Therefore, it is contended by Shri Ghate that, if we read section 138 as a whole together with the scheme of the Act, it is quite clear that, unless an authority or an Officer is specified by a notification by the Central Government, the income-tax authorities cannot furnish or cause to be furnished any information to any body and, as the civil court is not specified as such authority or the body by the Central Government, the civil court has no power or authority to issue summons directing the income-tax authorities to produce any document. Therefore, in substance the argument of Shri Ghate is that though the old section 54 of the Indian Income-tax Act, 1922, is no more on the statute book and section 137 has been omitted and section 138 is re-enacted, still in effect the prohibition contemplated by these sections is in force. The prohibition contemplated is absolute and this being the position the order passed by the civil judge, senior division, directing to issue a summons to the Income-tax Officer stating specifically that he may bring the documents as returns filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention of the legislature will have to be gathered by the express words used in section 138 of the Act itself. The intention of the legislature is further clear from the fact that section 137 of the Income-tax Act, 1961, has been deleted. Therefore, in my opinion, now it is not possible to hold that, though section 54 of the old Act or section 137 of the Income-tax Act, 1961, have been deleted by the legislature from the statute book, still it was the intention of the legislature in effect to continue the same protection to the assessee. It is not permissible to read something more in a section and the intention of the legislature will have to be gathered from the express words used in section 138 of the Income-tax Act, 1961, only. It is also not possible to hold that section 54 of the 1922 Act or section 137 of the 1961 Act created any obligation or privilege which has been saved by section 138 of the Income-tax Act 1961. Section 138, as is enacted, no doubt provides for a procedure forgetting information in this behalf, but in my opinion, the above provision has no application to the production of documents or giving of evidence before the court of law. That provision merely e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce certain documents or to give evidence nor does it prohibit such income-tax authorities from producing documents relating to assessment summoned by the court." Similar view is taken by the Punjab and Orissa High Courts in Shiv Narain v. Jivan Lal and Nazir Mahommad v. Jamila Bibi. In the case before me the civil judge has already disallowed the application filed by the defendant for issue of summons for production of returns filed and the statements made up to April 1. 1964. Therefore, we are not concerned, in this case with the question as to whether a civil court has got jurisdiction to issue summons for production of documents pertaining to the period prior to April 1, 1964. In the present case the court has passed an order for production of documents for a period after April 1, 1964, only and in that case also it is specifically observed by the court that the court will look into them after they are produced by the Income-tax Officer and the court will not force him to produce them if the Income-tax Officer claims privilege. It is further made clear that the court while issuing summons will also make, it clear that, if the Income-tax Officer is prepared to produce these do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order after getting necessary information or after completing the enquiry as contemplated by the Act. The proceedings before the Estate Duty Officer are quasi-judicial proceedings and after holding the necessary enquiry as contemplated by the Act he has to give his decision, which is known as an order. The Act further provides for filing of an appeal, etc., against this order of the Estate Duty Officer. This being the position, the said order passed by the authority cannot be equated with the term "document" given, produced or obtained in connection with or in the course of proceedings under the Act. I am fortified in this view by a decision of the Andhra Pradesh High Court in Uppala Lakshmidevi v. V. S. Marty , wherein it is observed: "It is not in dispute that the assessment orders are not thus treated as confidential under the Estate Duty Act. There can, therefore, be no objection in directing the production of the assessment orders, and the Assistant Controller cannot claim any privilege in regard to such documents because they do not come within the protection afforded under section 80 of the Estate Duty Act. It must be remembered that section 80 of the Act does not make the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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