Kerala H.C : Defendant in O.S. No. 137 of 1983 on the file of the Sub-Court, Kollam, is the revision petitioner.

High Court Of Kerala

Sujir Ganesh Naik vs. Sujir Keshav Naik

Sections 137, 138(2), CPC 115

K. Narayana Kurup, J.

C.R.P. No. 1353 of 1997

20th May, 1998

Counsel Appeared

P. Sukumaran Nair, Senior Advocate, Thottathil B. Radhakrishnan, G. Unnihrishnan, P.V. Ramesh Shankar & G.P. Shinod, for the Petitioner : K.P. Dandapani, for the Respondent

JUDGMENT

K. Narayana Kurup, J. :

Defendant in O.S. No. 137 of 1983 on the file of the Sub-Court, Kollam, is the revision petitioner. The revision is directed against the order of the trial Court allowing I.A. No. 1960 of 1996 in part and issuing summons to the CIT to produce the income-tax and wealth-tax returns of the defendant for the period subsequent to 1st April, 1964, up to 1968-69 as shown in the petition filed by the plaintiff under s. 120 of the Civil Rules of Practice. The suit is for declaration that Sujir Ganesh Naik and Company, a partnership firm of which the plaintiff and defendant were partners stood dissolved or is deemed to have been dissolved w.e.f. 31st Dec., 1982, or 14th March, 1981, settlement of accounts and other reliefs. The defendant contended, inter alia, that plaint A schedule items, 1, 6 to 14 and 16 to 19 are not properties of the firm as alleged by the plaintiff and that they belong to the defendant as full owner. In other words, the contention is that some of the properties mentioned in the plaint are acquired by using the defendant’s own funds and those properties are not the assets of the firm. According to the plaintiff, all the properties scheduled to the plaint were acquired by using the funds of the firm and the said properties are used for the purpose of the firm. In order to prove the case of the plaintiff, he filed I.A. No. 1312 of 1994 for production of records from the ITO, Kollam, as per r. 120 of the C.R.P. The said petition was allowed by the trial Court and the same was challenged before this Court in C.R.P. No. 1647 of 1994. This Court disposed of the C.R.P. setting aside the order passed by the trial Court and directing the parties to approach the CIT under s. 138(1)(b) of the IT Act, 1961, and to get a certified copy of the documents. This Court also gave liberty to the plaintiff to approach the trial Court after taking necessary steps under s. 138(1)(b) of the IT Act. Though the plaintiff applied for certified copies on 15th July, 1996, the CIT declined to furnish the same by his proceedings dt. 24th July, 1996. In the above circumstances, the plaintiff filed I.A. No. 1960 of 1996, under r. 120 of the C.R.P. for directing the CIT to produce the income-tax returns and wealth-tax returns of the defendant for the asst. yrs. 1954-55 to 1974-75. The said petition was partly allowed by the Court below as per the order under challenge and the summons was issued to the CIT to produce the income-tax and wealth-tax returns of the defendant- revision petitioner for the period subsequent to 1st April, 1964 and up to 1968-69. The revision is directed against the aforesaid order of the trial Court.

2. Having heard learned counsel on both sides, I am satisfied that the order under challenge does not suffer from any illegality or irregularity warranting interference by this Court in exercise of the revisional power under s. 115 of the CPC. It has been contended by the defendant that the IT returns for the period up to 1st April, 1964, cannot be directed to be produced for the reason that s. 137 of the IT Act, 1961, was deleted only w.e.f. 1st April, 1964. That contention was rightly upheld by the trial Court in view of the deletion of s. 137 of the IT Act only w.e.f. 1st April, 1964, as clarified by the decision of this Court in Jose vs. Chandran (1987) 1 KLT 465. The deletion of s. 137 of the IT Act, 1961, w.e.f. 1964 and the absence of any notification under s. 138(2) of the IT Act thus lead to the irresistible conclusion that the jurisdiction of the civil Court to compel the IT authorities to produce the assessment records has not been expressly or impliedly taken away by the IT Act, 1961, or any notification issued thereunder so far. Therefore, the civil Courts have jurisdiction to summon the authorities to produce the IT assessment orders. The trial Court has entered a categorical finding that from the materials on record, it appears that the IT and WT returns for the period after 1st April, 1964, would reveal the financial capabilities and background of the defendant and this would be a relevant fact to consider the fact in issue regarding the disputed right of the parties over the plaint schedule items. In para 5 of the I.A., it is stated that the firm has acquired all the immovable properties scheduled in the plaint during the accounting years 1954-68 and that the defendant was not in possession of sufficient funds to acquire the properties as he claimed. In the aforesaid view, the Court found that the production of the income-tax and wealth-tax returns up to 1968-69 alone is sufficient for the purpose of the suit and accordingly directed the IT and WT authorities for the production of the IT and WT returns for the period subsequent to 1st April, 1964 up to 1968-69 and allowed the I. A. to that extent.

3. The apex Court while considering a similar situation has upheld the power of the civil Court to summon the documents from the IT authorities, holding that the privilege cannot be claimed when the Court has summoned their production. In the decision reported in Dagi Ram Pindi Loll vs. Trilok Chand Jain AIR 1992 SC 990, the Court held as follows (headnote) : “After the repeal of s. 137 of the Act by Finance Act 5 of 1964, there is no longer any impediment left in the way of a Court to summon the production of documents filed by an assessee before the IT authorities after 1st April, 1964, relating to assessment proceedings for 1964-65 onwards. The finality attached to an order of the CIT under s. 138(1)(b) has no relevance to the exercise of powers by a Court to summon the production of documents in a case pending before the Court.” That apart, I see no jurisdictional error in the order impugned in this C.R.P. It has also to be remembered that this Court while exercising the revisional jurisdiction under s. 115 of the CPC, shall not take a technical view and unnecessarily interfere in every case unless grave injustice or irreparable hardship would result from failure to do so. Since s. 115(1), proviso (b), of the CPC, makes it clear that this Court in exercising its power under s. 115 of the CPC, shall not vary or reverse any order made except where the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. I am not satisfied that the order under challenge if allowed to stand will result in any prejudice to the revision petitioner. At any rate, I find no illegality or irregularity in the order under challenge and accordingly the civil revision petition is dismissed. However, I make no order as to costs.

[Citation : 252 ITR 176]

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