Karnataka H.C : These revision petitions are referred to a Division Bench by an order made by Venkatachala J. on July, 19, 1985, in C. R. P. Nos. 3699 and 3700 of 1983.

Counsel Appeared

S.V. Raghavachar & S.V. Narasimhan, for the Petitioners : C.R.V. Swami, C.S. Krishnamurthy, for the Respondents

P.P. BOPANNA, J.:

These revision petitions are referred to a Division Bench by an order made by Venkatachala J. on July, 19, 1985, in C. R. P. Nos. 3699 and 3700 of 1983. The facts leading to this reference are found in the order of the learned judge and there is no need to repeat them in extenso.

The short point for consideration is, whether the provisions of s. 53 of the Karnataka Agrl. IT Act, 1957, as substituted by Act No. 29 of 1976, take away the power of the civil Court to call for documents, returns and other papers produced by an assessee in the proceedings pending before the authorities constituted under the aforesaid Act.

The petitioners are defendants before the trial Court and the suit was filed against them by the respondents- plaintiffs for partition and separate possession of their share in the family properties. The defence taken by the petitioners before the trial Court is that those properties are not joint family properties but that they are their self- acquired properties. In order to demolish this defence of the petitioners, the respondents- plaintiffs made an application before the trial Court for summoning the returns filed by the petitioners and the assessment orders made thereon for the period 1961-62 to 1975-76. The petitioners did not plead the privilege available to them under the provisions of s. 53 of the Act, as they existed prior to the substitution of the present s. 53. The trial Court allowed the application of the respondents and directed the ITO to produce the documents called for. That order was challenged in revision and the learned judge having found that there are a number of conflicting judgments on this point referred the revision petition to a Division Bench and that is how the matter is before us.

4. In our view, all the decisions based on the provisions of ss. 137 and 138 of the IT Act, including the decision of this Court in Rickabchand vs. R. V. Subramanyam (1972) 1 Mysore Law journal 619 and cited before the learned judge, are not applicable to the facts of these petitions as we are of the view that the matter could be disposed of by applying the principle of construction to provisions of a statute where they are not repealed by a subsequent Act but substituted in toto by the amending Act. In the decisions cited before us, this Court and the other High Courts were concerned with the effect of the repeal of the Indian IT Act, 1922, by the IT Act, 1961, and that is why all these High Courts were concerned with the implications of the repeal of the Indian IT Act, 1922, by the IT Act, 1961, by pressing into service the provisions of s. 6 of the General Clauses Act. But, in this case, we are not concerned with such a situation. We are dealing with the provisions of s. 53 of the Karnataka Agrl. IT Act as substituted by the new s. 53. Therefore, the line of enquiry that the Courts adopt by applying the provisions of s. 6 of the General Clauses Act need not trouble us in these petitions and, accordingly, we do not have to refer to those decisions cited before the learned judge.

5. The simple question in this case is, what is the effect of s. 53 of the Act, as it stands now, which was incorporated in the Act by way of substitution of the earlier s. 53 by the amending Act 29 of 1976. The substitution of an existing provision by a new provision does not attract s. 6 of the General Clauses Act. This point is made clear in the decision of this Court in Shah Chunilal Sohanraj vs. Gurushantappa (1972) 1 Mysore Law journal 327. This Court has gone into the said question while considering the amendment made to, s. 21(2) of the Karnataka Rent Control Act by the amending Act 14 of 1969. By that amendment, the old s. 21(2) was substituted by a new section. The contention urged in that case was that the amendment could not be given retrospective effect since the amendment affects the substantive rights of the parties. Govinda Bhat J., as he then was, speaking for the Bench, rejected this contention, in the following words: ” The matter pertains to rules of construction of statutes and the effect of amendments made to an Act. In the instant case, sub-s. (2) of s. 21 provides for the circumstances under which relief against eviction can be granted in proceedings under the Act. The said sub- section was amended by substitution of a new provision set out in the earlier part of this order. Where a section of a statute is amended, the original ceases to exist and the new section supersedes it and becomes part of the law just as if the amendment has always been there. (Vide Crawford on Statutory, Construction—Interpretation of Laws, pages 110- 111).

6. An amending Act is not regarded as an independent statute. The statute in its old form is superseded by the statute in its amended form, the amended section of the statute taking the place of the original section for all intents and purposes as if the amendment had always been there. The amendment should be considered as if embodied in the whole statute of which it has become a part. Unless a contrary intent is clearly indicated, the amended statute is regarded as if the original statute had been repealed and the whole statute re-enacted with the amendment. “

7. The learned judge relied on the decision of the Supreme Court in Shamrao vs. District Magistrate, Thana, AIR 1952 SC 324 and observed : ” The above principles or canons of construction have been accepted by the Supreme Court in Shamrao vs. District Magistrate, Thana. This is what Bose J. has stated in the said decision (p. 326 of AIR 1952 SC) : `The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier Act, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there, is no need to refer to the amending Act at all. ‘ No repugnancy or inconsistency between the old and the new sub-sections have been pointed out to us. When the amending Act has stated that the old sub-section has been substituted by the new sub-section, the inference is that the legislature intended that the substituted provision should be deemed to have been part of the Act from the very inception. When the proceedings were pending, the amended provision came into force. It is the amended provision that has to be applied and not the old provision which has ceased to exist.

In our view, the same construction has to be applied to a case of substitution of s. 53 of the Karnataka Agrl. IT Act, 1957, by a new section by the amending Act 29 of 1976. The provisions of s. 53(1), prior to its substitution, read as under in so far as they relate to our case : ” 53. Disclosure of information by public servant.—(1) All particulars contained in any statement made, return furnished, or account or document 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 an 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 any law, 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 such record or to give evidence before it in respect thereof. “

11. The same is now substituted by new s. 53(1)(a)(i) and (ii) with retrospective effect which reads as under :

” 53. Disclosure of information respecting assessees.—(1)(a) The CIT may furnish or cause to be furnished to— (i) any officer, authority or body performing any functions under any other law relating to the imposition of any tax, duty, cess or fee ; or (ii) such officer, authority or body performing any functions under any other law as the State Government, if in its opinion it is necessary so to do in the public interest, may, by notification, specify in this behalf, any such information relating to any assessee in respect of any assessment made under this Act as may, in the opinion of the CIT, be necessary for the purpose of enabling such officer, authority, or body to perform his or its functions under that law. “

It is clear from the amended provisions that the legislature has omitted the word ” Court ” in the new s. 53(1)(a)(i) and (ii) and that shows that the bar that was there on the civil Courts to call for documents from the IT authorities under the old provision is removed by the omission of the word ” Court ” under the amended provision. Accordingly, the civil Court has the power to summon documents, papers and returns filed by an assessee before the IT Authorities, unless the said authorities plead privilege in public interest. No such privilege is pleaded by the authorities as they have already produced the documents called for.

The question referred is answered accordingly and now the civil revision petitions may be placed before the appropriate Bench to be disposed of in the light of our answer to the reference.

[Citation : 173 ITR 678]