LawyerServices Judgment - S. V. Ramakrishna Mudaliar and Another v/s Mrs. Rajabu Fathima Bukari and Another

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Court Case No Date of Judgment
High Court of Judicature at Madras C.S. 43 OF 1962 09-07-1965
Judge(s)
THE HONOURABLE JUSTICE VENKATARAMAN
Parties
S. V. Ramakrishna Mudaliar and Another v/s Mrs. Rajabu Fathima Bukari and Another
Advocate(s)
For
Equivalent Citation(s)
1965 (58) ITR 288
1965 (2) MLJ 338
Judgment Full Text

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Income Tax Officer, Central Circle I, Madras Versus P. Ramaratnam and Others George Oakes Private Limited Versus Commissioner of Income Tax, Madras George Oakes Private Limited Versus Commissioner of Income Tax, Madras

judgement - VENKATARAMAN J.The question involved is the admissibility of the evidence of one Sri Marar relating to the initials which he is alleged to have affixed on August 17 1957 in some account books (exhibits D-24 and D-25) which he perused in his capacity as Income-tax Officer Second Circle Madras. The question arises because of the provisions of section 54 of the Income-tax Act of 1922 and section 137 of the Income-tax Act of 1961. Section 137 of the Income-tax Act of 1961 (Act 43 of 1961) was omitted from the statute by section 32 of the Finance Act of 1964. Another question which is involved is whether the prohibition which existed against the Income-tax Officer giving evidence under the provisions of section 54 of the Income-tax Act of 1922 and section 137 of the Income-tax Act of 1961 still continues having regard to the provisions of section 6 of the General Clauses Act 1897 The facts necessary for the disposal of the questions are these. Mrs. Buhari the first defendant in the suit C. S. NO. 43 of 1962 produced her account books exhibits D-24 and D-25 at a late stage and applied for permission to condone the delay. One of the questions for the court was whether any of the account books could be considered to be genuine. In that connection I happened to come across some initials in the said account books which purported to be those of an Income-tax Officer on August 17 1957. The initials are at page 43 of the day book (exhibit D-24) and also find place at page 1 of the corresponding ledger (exhibit D-25). There are seals of the Income-tax Officer on August 17 1957 on the said pages. Though some attack was made by the plaintiffs with respect to the seals I felt that so far as the initials of the officer were concerned their evidentiary value would stand on a higher footing and if the accounts were seen by the officer on August 17 1957 that would go a long way to establish their genuineness. Accordingly I permitted the first defendant to examine the Income-tax Officer for the above purposeThe first defendant summoned the concerned Income-tax Officer Sri Marar who is now the Assistant Commissioner of Income-tax. In examination-in-chief he spoke to the fact of his having affixed his initials on August 17 1957 and added that he believed that he did so in verifying the assessment of another assessee Buhari Hotel as a cross-verification. He was also cross-examined in part. This took place on April 29 1965. In the course of the cross-examination it was felt that in order to enable the plaintiffs to test the veracity of his evidence it was necessary to summon the connected assessment records where he stated he would have noted the fact of summoning and examining the account books of Mrs. Buhari (exhibits D-24 and D-25). For this purpose a requisition was sent to the Commissioner of Income-tax to give those assessment files to Sri Marar and the case was adjourned to April 30 1965 the last working day before the vacation. On that day somehow Sri Marar could not come and the case came up after the reopening of the court after vacation. But even on April 30 1965 Sri M. P. Subramaniam learned counsel for the plaintiffs brought to my notice the decision of the Supreme Court in Charu Chandra Kundu v. Gurupada Ghosh and urged that having regard to the provisions of the Income-tax Act of 1922 and the Income-tax Act of 1961 the evidence of Sri Marar would be totally inadmissible. I felt that having regard to the importance of the question and the fact that the Commissioner of Income-tax also was concerned it was desirable to hear the arguments of Sri V.Balasubramaniam standing counsel for the Commissioner. I had the benefit of his able arguments supplemented by the arguments of Sri M. P. Subramaniam and also the counter arguments of Sri T. Ramaprasada Rao for the first defendantThe stand of Sri Balasubramaniam appearing for the Commissioner is that in view of the provisions of section 54 of the Income-tax Act of 1922 and section 137 of the Income-tax Act of 1961 the evidence of Sri Marar would be totally inadmissible. He further contended that this prohibition continues notwithstanding the omission of section 137 of the Income-tax Act of 1961 by section 32 of the Finance Act of 1964 having regard to the provisions of section 6 of the General Clauses Act. He also stated that so far as Sri Marar was concerned he was under the impression that be was merely asked to give evidence in his private capacity and that consequently the prohibition would not apply. But now that the objection has been brought to his notice Sri Marar also claims the privilege of exemption from giving evidence. On the contrary the contention of Sri Ramaprasada Rao is that under the provisions of the Indian Evidence Act the evidence of Sri Marar is admissible and that the position is not altered by the provisions of the Income-tax Act. I may say at once that I have no difficulty in holding that the evidence of Sri Marar is totally inadmissible and should be disregarded and that it will not be legal to continue to examine him further. I accept the contention of Sri V. Balasubramaniam that under the provisions of the Income-tax Acts of 1922 and 1961 there was a prohibition against Sri Marar being examined by the court in respect of the matter in question and that the prohibition continues notwithstanding the deletion of section 137 of the Income-tax Act of 1961 by section 32 of the Finance Act of 1964I shall first discuss the position as it stood before the deletion of section 137 of the Income-tax Act of 1961 by section 32 of the Finance Act of 1964. Section 54 of the Income-tax Act of 1922 enacted as follows 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 otherwise 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. Sub-section (3) ran thus(3) Nothing in this section shall apply to the disclosure---....... * There followed several clauses which for the present may be assumed not to apply. The Income-tax Act of 1961 repealed the Income-tax Act of 1922 but the repeal is immaterial for the particular question before us because the provisions of section 54 are re-enacted in section 137. Section 137(1) and (2) ran thus137. (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 Chapter XXII or in any records of any assessment proceeding or any proceeding relating to 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) No public servant shall disclose any particulars contained in any such statement returns accounts documents evidence affidavit deposition or record. * Sub-section (3) provides for exceptions which again may be assumed for the present not to apply to usIn Charu Chandra Kundu v. Gurupada Ghosh the question arose in a civil suit in which the appellant before the Supreme Court was the defendant. In support of his defence in the suit he desired that the statement made by the plaintiff in the suit on February 22 1950 (respondent in the Supreme Court) in certain proceedings relating to the assessment of income-tax of the appellant for the year 1949-50 be produced before the court. The Commissioner of Income-tax took the objection that in view of section 54 of the Income-tax Act 1922 he could not be required to produce the statement in question. The trial court upheld the objection. The High Court of judicature at Calcutta confirmed that view. The appellant took the matter in appeal to the Supreme Court. Their Lordships of the Supreme Court held that there was an express interdict against the court requiring production of the documents and that therefore the subordinate judge was right in declining to accede to the request of the appellant. Then follows this passage which is important for us ?Mr. Chatterjee appearing on behalf of the appellant contends that section 54 is enacted only for the protection of the assessee and if the assessee waives the privilege enacted for his protection the prohibition contained therein will be inoperative. But there is no such exception express or implied in the language used by the legislature. The prohibition imposed against the court by section 54 is absolute : its operation is not obliterated by any waiver by the assessee in whose assessment the evidence is tendered document produced or record prepared. * Mr. Chatterjee then relied on Rama Rao v. Venkataramayya where it was held that certified copies of statements made to the Income-tax Officer which had been furnished to the assessee by the Income-tax Officer were admissible under section 65(e) of the Evidence Act as secondary evidence of public documents under section 74 of the Evidence Act. Their Lordships of the Supreme Court observed that the question before them was different namely whether the original statements from the records of the income-tax authorities could thus be summoned by the assesseeThough the above decision was rendered only with reference to section 54 of the Act of 1922 it would equally apply to section 137(1) of the Act of 1961. I may add that section 137(5) of the Act of 1961 would not affect this result because that merely says that there is no prohibition against a voluntary disclosure of any of the particulars in sub-section (1) by the person by whom the statement was made return furnished accounts or documents produced. In other words it does not affect the prohibition against the Income-tax Officer himselfIn view of this clear pronouncement by the highest court in the land it is not necessary to discuss the position further. It is clear that if the evidence of Sri Marar would come under the terms of section 54 of the Income-tax Act of 1922 or section 137 of the Income-tax Act of 1961 it would be totally inadmissible notwithstanding the fact that the concerned assessee namely Buhari Hotel in connection with whose assessment the alleged initials were affixed has no objection to Sri Marar giving such evidence. On this point it is clear that the evidence of Sri Marar would certainly come within the four corners of section 54 of the Income-tax Act of 1922 or section 137 of the Income-tax Act of 1961. It is clear from his evidence that he affixed these initials in his capacity as Income-tax Officer when making the assessment of Buhari Hotel or may be some other assessment. The reception of such evidence is precisely what has been prohibited by the provisions of section 54 of the Income-tax Act of 1922 and section I37 of the Income-tax Act of 1961. It is impossible to hold that he could give such evidence in his private capacity. I do not of course say that wherever the initials of an Income-tax Officer are found the Income-tax Officer cannot give evidence. We may for our present purpose envisage a case where in his capacity as an ordinary citizen totally unconnected with his duties as an Income-tax Officer he affixed his initials on some document as a witness to some other private transaction. In such case the prohibition under section 54 of the Income-tax Act of 1922 or section 137 of the Income-tax Act of 1961 cannot apply. This however is clearly not such a case. It comes squarely within the four corners of the provision in questionEven in the chief examination of Sri Marar it was elicited that the initials were affixed in the Course of assessment proceedings of Buhari Hotel. But even if the chief examination had stopped merely with eliciting answers such as the followingThese are my initials which I affixed on August 17 1957 when I saw those books * Without eliciting the fact that the initials were affixed in the course of assessment of Buhari Hotel that would not for practical purposes be of much use because though such evidence standing by itself would be admissible in chief-examination it would have to be tested in cross examination and in the course of such examination it would be elicited that further questions would have to be put to verify such evidence. Such evidence in cross-examination would clearly be prohibited under section 54 of the Income-tax Act of 1922 and section 137 of the Income-tax Act of 1961. Sri Ramaprasada Rao suggested that the cross-examination might be done without trenching on the prohibited area and that the evidence which did not trench on the prohibited area could be taken as admissible excluding the rest. But the court must do justice and if in order to do justice it is necessary to elicit that the initials were affixed in some assess ment proceeding and to verify that evidence by reference to the records it would trench on the prohibited area and there cannot be effective cross examination. If there can be no effective cross-examination the principles of natural justice require that the other evidence also given in chief examination cannot be looked into. The whole evidence will have to be excludedSri Ramaprasada Rao then urged that this evidence would come within clause (b) of sub-section (3) of section 54 and similarly under clause (ii) of sub-section (3) of section 137. These provisions run thus 54. (3) Nothing in this section shall apply to the disclosure---(b) of any such particulars to any person acting in the execution of this Act or of the Taxation on Income (Investigation Commission) Act 1947 (XXX of 1947) where it is necessary or desirable to disclose the same to him for the purposes of either this Act or the Taxation on Income (investigation Commission) Act 1947. 137. (3) Nothing in this section shall apply to the disclosure---(ii) of any such particulars to any person acting in the execution of this Act where it is necessary or desirable to disclose the same to him for the purposes of this Act. Sri Ramaprasada Rao submitted that the words any person * in the above provisions would include the court and for this purpose he relied on a decision of this court in Venkata Seshavatharam v. Venkata Rangayya which held that the words appropriate authority in section 54(3)(m) would include a court. That provision ran thusNothing in the section shall apply to the disclosure--- .... (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 such fact is required to be established. * That provision was introduced shortly after the enactment of the Madras Agriculturists Relief Act (Act IV of 1938) in order to enable the Collector to give a certificate whether a person had been assessed to income-tax in a particular year or years which was a necessary criterion for claiming the benefits of the Act. The Bench of this court held that the appropriate authority would not be confined to a Collector but would include a court also and would empower the court to call for necessary particulars from the Income-tax Officer. But this decision will not help us because under section 54(3)(b) the person concerned must be acting in execution of that Act of 1922 and similarly under section 137 of the Act of 1961. It cannot however be said that this court in trying the suit and in taking the evidence of Sri Marar is acting in execution of the Income-tax Act of 1922 or the Income-tax Act of 1961. No other provision under section 54(3) or section 137(3) has been relied on by Sri Ramaprasada Rao. The result therefore is that under the law as it stood before the omission of section 137 by section 32 of the Finance Act of 1964 the evidence of Sri Marar would be totally inadmissible. The question is whether in view of the omission of section 137 of the Income-tax Act of 1961 by section 32 of the Finance Act of 1964 the position is alteredHere it is necessary to quote the relevant portion of section 6 of the General Clauses Act6. Where this Act or any Central Act or Regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then unless a different intention appears the repeal shall not---(c) affect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed. * The principle of this enactment would apply even to a case of repeal of one of the sections of the Act of 1961 namely the omission of section 137 by the Finance Act of 1964. The Supreme Court has indicated in State of Punjab v. Mohar Singh that unless a contrary intention appears in the repealing statute the consequences of section 6 of the General Clauses Act will apply and that it is not necessary that the repealing of new Act should expressly keep alive old rights and liabilities. They say that the line of enquiry should be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. Leaving aside for a moment the question whether there is anything in the Finance Act of 1964 disclosing a different intention it is clear that under section 6(c) of the General Clauses Act the inadmissibility of the evidence of Sri Marar will continue notwithstanding the omission of section 137 of the Income-tax Act of 1961 by the Finance Act of 1964. The matter can be looked at first from the point of view of the Income-tax Officer himself and secondly from the point of view of the Commissioner of Income-tax. From the point of view of the Income-tax Officer he was under an obligation not to give evidence in court relating to the initials in question and the circumstances under which they were affixed. This obligation accrued or was incurred under section 54 of the Income-tax Act of 1922 on August 17 1957 itself in respect of the initials because that was the Act that was in force then ; and that obligation continued when the Act of 1922 was repealed and the Act of 1961 was enacted. This obligation of the Income-tax Officer was correlated to the corresponding right of the assessee concerned namely Buhari Hotel to forbid the Income-tax Officer giving evidence about such initials. We have seen from the observations of the Supreme Court in Charu Chandra Kundus case that the prohibition imposed against the court from taking the evidence of the Income-tax Officer was absolute and could not be obliterated by any waiver of the assessee. This obligation of the Income-tax Officer not to give evidence was there even apart from the corresponding right of the assessee to forbid him to give evidence. The prohibition was enacted in public interest to enable a full and true disclosure to be made by the assessee. That was why it was not waivable by the assesseeThe matter could also be considered as a right of the Income-tax Officer to claim immunity from appearing in court and being asked to give evidence about it and submit himself to cross-examination. The Income-tax Officer could claim that this right continued notwithstanding the omission of section 137 of the Income-tax Act of 1961 by virtue of section 6(c) of tbe General Clauses Act. I am inclined to think that Sri Marar was ignorant of the true legal position when he gave evidence on April 29 1965 and did not claim such a privilege. In such a case at least it cannot be said that he is precluded from claiming the privilege now as he wants toThe question could also be considered from the point of view of the Commissioner of Income-tax who had both a right to refuse to produce the documents before the court as also an obligation not to produce them before the court. The right and the obligation would continue by virtue of section 6(c) of the General Clauses Act. If the Commissioner cannot be asked to produce these records to that extent it would not be possible to cross-examine Sri Marar effectively and on the principles of natural justice the evidence already recorded cannot be taken into accountThe question now is whether there is anything in the Finance Act of 1964 disclosing an intention contrary to that enacted under section 6(c) of the General Clauses Act. The relevant provision which may have to be considered is section 33 of the Finance Act of 1964 which runs thus33. For section 138 of the Income-tax Act the following section shall be substituted namely 138. Disclosure of information respecting assessees.--- (1) Where a person makes an application to the Commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made either under this Act or the Indian Income-tax Act 1922 on or after the 1st day of April 1960 the Commissioner may if he is satisfied that it is ill the public interest so to do furnish or cause to be furnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any court of law(2) Notwithstanding anything contained in sub-section (1) or any other law for the time being in force the Central Government may having regard to the practices and usages customary or any other relevant factors by order notified in the Official Gazette direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order. * Actually there does not appear to have been any notification under section 138(2) in respect of the matter with which we are dealing. But that apart in view of the decision of the Supreme Court in State of Punjab v. Mohar Singh it is clear that even in a case where there is a notification under section 138(2) it will not mean that the prohibition against the production of the records by the Income-tax Officer is confined to the documents specified in such a notification. According to the criterion of the Supreme Court in State of Punjab v. Mohar Singh the limited prohibition contained in the notification under section 138(2) cannot be taken as destroying the prohibition under the old law namely section 137 of the Act of 1961. Rather the correct view would be that in addition to the old law the notification under section 138(2) also contains a prohibition in respect of particular documents specified. As for section 138(1) that too cannot be taken as in any way destroying the prohibition contained in section I37 Of the Income-tax Act of 1961. Section 138(1) deals only with what the Commissioner may do when a party applies to him and does not touch the sphere covered by section 137(1) of the Act of 1961 which lays down the prohibition of evidence or documents being tendered in court by the officerThe result therefore is that the evidence of Sri Marar is totally inadmissible and will have to be disregarded.