High Court Of Orissa
Debasis Sahu vs. Nabeen Chandra Sahu & Anr.
B.P. Das, J.
Civil Revision No. 287 of 2002
5th July, 2002
Counsel Appeared
Ashok Mukherjee with S.S. Rao, B.K. Mohanty & S. Sailaja, for the Petitioner : J. Patnaik with A.A. Das, R.Rath, B. Mohanty & T.K. Patnaik, for the Respondents
JUDGMENT
B.P. Das, J. :
This revision application is directed against the order dt. 4th May, 2002, passed by the Civil Judge (Senior Division), Aska, in TS No. 65 of 1997 rejecting the petition filed under Order 13, r. 10, of the Civil Procedure Code (in short “CPC”), by defendant No. 1, the petitioner herein, with a prayer to call for certain documents from the office of the Asstt. CIT, Berhampur, as well as the Sub-Registrar, Kabisuryanagar. The short facts so narrated in the revision application tend to reveal that O.P. No. 1 as plaintiff has filed the aforesaid T.S. No. 65 of 1997 for partition of the suit lands making the present petitioner and O.P. No. 2 as defendants. During the course of hearing of the suit, defendant No. 1 filed a petition under Order 13, r. 10, CPC, contending that the plaintiff-O.P. No. 1 and his father had separately submitted income-tax returns and also filed statements before the IT authorities disclosing therein partition of their ancestral properties in the year 1955 in terms of the decree passed in T.S. No. 126 of 1955. As the present petitioner-defendant No. 1 has taken a plea that the suit properties had already been partitioned and are no more available for partition in the present suit and as the plaintiff has denied the earlier partition, defendant No. 1 in order to prove the same prayed to call for the income-tax returns as well as the statements filed by the plaintiff before the IT authorities, being material documents, and are available with the Asstt. CIT, Berhampur, since the application for certified copies of the aforesaid documents was rejected. The petitioner in the aforesaid application also prayed to call for certain other documents mentioned at serial Nos. 11 to 27 from the office of the Sub-Registrar, Kabisuryanagar. The learned civil Judge (Senior Division) has by the impugned order rejected the prayer of the petitioner in view of the bar of s. 123 of the Evidence Act holding that the Court is not competent to call for the documents from the IT office in view of the restrictions contained in the IT Act as well as ss. 123 and 124 of the Evidence Act. So far as the documents sought to be summoned from the office of the Sub-Registrar are concerned, the trial Court rejected the prayer of the petitioner holding that it is open to the petitioner to get the certified copies of those documents and file the same before the Court. Against the aforesaid order, defendant No. 1 has filed the present revision application. Shri Ashok Mukherjee, learned senior counsel, appearing for the petitioner, submits that the civil Court has fallen into error by holding that the income- tax records of the opposite party so sought to be called for from the custody of the Asstt. CIT are privileged documents, and cannot be summoned in view of the restriction imposed by s. 123 of the Evidence Act. On the contrary, Shri Rath for the opposite party submits that those documents cannot be summoned in view of the restriction imposed under the provisions of ss. 123 and 124 of the Evidence Act as well as s. 138 of the IT Act.
Sec. 138 of the IT Act deals with “Disclosure of information respecting assessees”. Learned counsel for the petitioner specifically draws my attention to the provision in s. 138(1)(b) of the IT Act, which is reproduced below :
“Where a person makes an application to the Chief CIT or CIT in the prescribed form for any information relating to any assessee, received or obtained by any IT authorities in the performance of his functions under this Act, the Chief CIT or CIT may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for and his decision in this behalf shall be final and shall not be called in question in any Court of law.” From the above provision it is crystal clear that it only enables the CIT to give copies of certain documents provided the grant of such copies is in public interest. It does not apply where a party wants the documents for private purpose. It does not prohibit the IT authorities from producing the assessee’s documents before the civil Court when directed by the civil Court to do so.
It is profitable to mention herein that with the repeal of the 1922 IT Act and omission of s. 137 of the 1961 IT Act, the fetters on the exercise of that jurisdiction were removed with the result that the exercise of the jurisdiction to call for the production of documents relevant to the case pending before the Court, even from the IT authorities, revived. The dispute raised in the present proceeding is no more res integra. The apex Court in a decision in Dagiram Pindilal & Anr. vs. Trilok Chand Jain & Ors. (1992) 102 CTR (SC) 170 : (1992) 2 SCC 13 held thus : “.. . under the CPC, the Courts of law have always possessed the jurisdiction to call for the production of documents relevant to the case before the Court from anybody having custody of those documents. Sec. 54 of the 1922 Act and, after its repeal, s. 137 of the 1961 Act had only placed fetters on the exercise of that jurisdiction, in respect of the specified documents, by the Courts, notwithstanding anything contained in any other law for the time being in force. The exercise of the jurisdiction to seek production of documents had, thus, only been put under a cloud insofar as the record of assessment is concerned. With the repeal of the 1922 Act and omission of s. 137 of the 1961 Act, the fetters on the exercise of that jurisdiction were removed with the result that the exercise of the jurisdiction to call for the production of documents relevant to the case pending before the Court, even from the IT authorities, revived. Neither s. 54 of the 1922 Act nor s. 137 of the 1961 Act had taken away for all times the jurisdiction of Courts to call for the record from the IT authorities. Those provisions, as already noticed, had only put the exercise of that jurisdiction under a cloud and those fetters were conterminus with the life of s. 54 of the 1922 Act or s. 137 of the 1961 Act.”
It was further held in para 18 thus : “18. The finality which has been attached to the order of the CIT under s. 138(1)(b) of the Act is applicable only in cases where application is made to the CIT by a party or any other person for receiving documents or information. It has nothing to do with the powers of the Courts to summon the production of assessment record of an assessee, filed after 1st April, 1964. The privilege as to secrecy which the assessee had acquired under s. 54 of the 1922 Act remained unimpaired by the repeal of that Act or even by the omission of s. 137 of the 1961 Act in respect of records filed prior to 1st April, 1964, and relating to the assessments prior to that date. That privilege did not extend, after 1st April, 1964, to record filed before the IT authorities, for the asst. yrs. 1964-65 onwards. Sec. 6 of the General Clauses Act as well as s. 138(1)(b) of the
1961 Act cannot extend the ban on the exercise of the jurisdiction by Courts to summon the production of documents from the IT authorities after 1st April, 1964, relating to the asst. yr. 1964-65 in respect of the record filed after 1st April, 1964.” Dealing with the question of privilege, the Court in the aforesaid decision observed as follows : “… When a Court of law, in any matter pending before it, desires the production of record relating to any assessment after applying its judicial mind and hearing the parties and, on being prima facie satisfied that the record required to be summoned is relevant for the decision of the controversy before it—it passes a judicial order summoning the production of that record from the party having possession of the record. The CIT cannot, therefore, refuse to send the record as he certainly is not authorised to set at naught a judicial order of a Court of law. He must obey the order of the Court by sending the record to the Court concerned. Indeed, it is open to the CIT to claim privilege, in respect of any document or record so summoned by a Court of law, under ss. 123 and 124 of the Indian Evidence Act, 1872, and even then it is for the Court to decide whether or not to grant that privilege. Had the legislature intended that no document from the assessment record of an assessee should be produced in a Court on being summoned by it, without the approval of the CIT, it would have said so in s. 138 of the Act itself. The repeal of s. 137 of the Act clearly discloses the legislative intent that it was felt by the legislature that it was no more necessary to keep the records of assessment by the IT Department relating to an assessee as confidential from the Courts and the bar with regard to the production of any part of the record was removed insofar as Courts are concerned.”
In the case of S.P. Gupta vs. President of India AIR 1982 SC 149, the apex Court observed that : “. . . The basic question to which the Court would therefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public interest in the administration of justice and on that account, it should not be allowed to be disclosed. The final decision in regard to the validity of an objection against disclosure raised under s. 123 would always be with the Court by reason of s. 162.” From the above decisions, it is clear that it is open to the CIT to claim privilege in respect of a document summoned by the Court and it is for the Court to decide whether the privilege can be granted or refused. In the case at hand, the IT authorities have not claimed privilege. It is the Court on its own which has come to a finding that the documents called for by one of the parties cannot be summoned from the IT authorities because of the restrictions imposed under ss. 123 and 124 of the IT Act (sic-Evidence Act). In view of the judicial pronouncements on the subject and discussions made above, the trial Court has fallen into error by terming the documents sought to be called for as privileged documents. The order passed by the trial Court is totally wrong and is accordingly set aside. However, before summoning the documents in question the trial Court should at first satisfy itself that the documents are required for the purpose of determining the issue raised in the suit. So far as the order directing the petitioner to obtain the certified copies of the documents available in the Sub-Registrar’s office is concerned, the same needs no interference. The civil revision is accordingly allowed in part. No cost.
[Citation : 260 ITR 426]
