TMI Blog2003 (9) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme of 1975. The letter refers to certain facts and attached thereto is the statement of income assessed, income to be disclosed, total tax due, tax paid and a token for balance of tax paid for the years 1967-68 to 1974-75 – Held that production of the letter would not defeat the provisions of the Scheme being barred u/s 12 of the Voluntary Disclosure of Income and Wealth Act, 1976 - - - - - Dated:- 26-9-2003 - Judge(s) : S. J. VAZIFDAR. JUDGMENT S.J. VAZIFDAR J.-Mr. Sampat, learned counsel appearing on behalf of the plaintiffs, while cross-examining defendant No.1 called upon him to produce a letter dated December 31,1975, purportedly addressed by the witness to the Commissioner of Income-tax. Mr. Shah, learned counsel appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the date of commencement of this Ordinance but before the 1st day of January, 1976, a declaration in accordance with the provisions of section 4 in respect of any income chargeable to tax under the Indian Income-tax Act, 1922 (11 of 1922), or the Income-tax Act for any assessment year (a) for which he has failed to furnish a return under section 139 of the Income-tax Act, or (b) which he has failed to disclose in a return of income furnished by him under the Income-tax Act before the date of commencement of this Ordinance, or (c) which has escaped assessment by reason of the omission or failure on the part of such person to make a return under either of the said Acts or to disclose fully and truly all material facts necessary f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e declaration under sub-section (1) of section 3 shall be made to the Commissioner and shall be in such form and shall be verified in such manner as may be prescribed by rules made by the Board. (2) The declaration shall be signed- (a) where the declarant is an individual, by the individual himself; where such individual is absent from India, by the individual concerned or by some person duly authorised by him in this behalf; and where the individual is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf;... 12. Secrecy of declaration.-(1) All particulars contained in a declaration made under sub-section (1) of section 3 shall be treated as confidential and, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bar is qua the declaration contemplated under the Act. Whether the evidence sought to be tendered or led is a declaration or not will depend upon the facts of each case depending on the nature of the document and the contents thereof. The question that therefore requires to be considered is whether the letter dated December 31, 1975, can be said to be a declaration within the meaning of that expression in the 1976 Act. The question must be answered in the negative. It is necessary to set out the letter in detail. Before doing so, however, I must note that both the attachment as well as the annexure to the letter are clearly declarations which the declarant cannot be called upon to give evidence of. The covering letter reads as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any event, a declarant cannot be required to produce at least that part of the letter which constitutes a declaration. Nor can a declarant be required to give evidence in respect thereof, i.e., in respect of that part of the letter that constitutes a declaration. The document in question is no doubt a covering letter, forwarding therewith and attaching thereto details which constitute a declaration. There is however nothing in the text itself that constitutes such a declaration. Neither the disclosure nor the attachment/annexure to the letter can be compelled to be produced. However, Mr. Sampat, on behalf of the plaintiff, seeks to rely upon the admission contained in the letter by defendent No. 1 that he was a partner of the suit firm. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences. For instance, an issue may arise as to whether the witness was in a particular city on a given day. If, in fact, the witness was not in the city on that date, and was not even in the country in which the city is situated on that date, his passport would be of great importance, if not clinching evidence. If, for any reason, a declarant under the Voluntary Disclosure Scheme refers to and for the purpose of the declaration or otherwise, encloses his passport, or a copy thereof, it can hardly be said that the same constitutes a declaration or a part of a declaration within the meaning of the 1976 Act and the production thereof is barred under section 12 thereof. The reliance under section 11 of the Act is misconceived. Section 11 reads ..... X X X X Extracts X X X X X X X X Extracts X X X X
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