2023 (6) TMI 989 - HC - Indian Laws

Rejection of application made by the Petitioner for calling upon the Income Tax Department to provide a proper certificate / letter in support of the Income Tax records - Information sought by the Family members to settle dispute between them - HELD THAT - The Hon ble Supreme Court in the case of ANVAR P.V VERSUS P.K. BASHEER AND OTHERS 2014 (9) TMI 1007 - SUPREME COURT has observed that whenever a person is seeking to rely upon a electronic record, for the same to be produced in the evidence, a certificate under Section 65-B of the Evidence Act is mandatory. The Hon ble Supreme Court in the case of Arjun Panditrao Khotkar 2020 (7) TMI 740 - SUPREME COURT has clearly held that Section 65-B(4) of the Evidence Act to be mandatory and in paragraph 52 it has held that if a person has done everything possible to obtain the necessary certificate, but has not been able to obtain the same or is refused, then he can make an application to the Trial Court for production and the Trial Court must summon the person and direct that such certificate be given. The Trial Court has observed that the Petitioner neither moved an application on his own account for getting the certificate directly from the concerned department nor filed an application before the Court for directing the concerned department for submitting the certificate before passing an order of admissibility of documents - The documents in respect of Shri Prakash Ahuja, having admittedly, been furnished by the Income Tax Department, the said certificate being mandatorily required under Section 65-B to certify the documents necessary to decide the lis between the parties, an application for the same cannot remotely said to be an abuse of the process of law or be an application to cover up lapses in the evidence. The Petitioner had put all his efforts to obtain the said certificate and therefore it also cannot be said that there was a lapse on his part. The Petitioner has done everything to obtain the necessary certificate in respect of the documents produced by the Income Tax Department, had also moved the application Exh. 453 before the Trial Court for issuance of direction to the Income Tax Department for the necessary certification and despite that the Trial Court has observed that the Petitioner has not moved an application before the Court for direction to the concerned department for submitting certificate. The learned Trial Judge has clearly erred in holding so. The documents filed below list Exh. 313 are photocopies produced by the Income Tax department without certificate, which documents are sought to be produced and used in evidence in the said suit. The Trial Court is, therefore, directed to call upon the Income Tax department to provide a proper certificate as per the requirements of Section 65-B of the Indian Evidence Act, 1872 in respect of the documents of Income Tax records of late Mr. Prakash Ahuja below list Exh. 313 within a period of four weeks from the date of uploading of this order. Petition allowed.

Summary

Issues Involved:
1. Admissibility of Documents without Section 65-B Certificate
2. Efforts to Obtain Section 65-B Certificate
3. Review of Previous Court Orders

Summary:

Admissibility of Documents without Section 65-B Certificate:
The Petitioner challenged the Small Causes Court's order dated 30 April 2022, which rejected the application to call upon the Income Tax Department for a certificate under Section 65-B of the Indian Evidence Act, 1872, to authenticate the Income Tax records of late Prakash Ahuja. The Trial Court had previously refused to exhibit these documents due to the absence of such a certificate, as mandated by the Supreme Court in *Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors.* (2020) 7 SCC 1.

Efforts to Obtain Section 65-B Certificate:
The Petitioner argued that despite all efforts to procure the certificate, including issuing a notice and obtaining a witness summons for the Income Tax records, the Income Tax Officer failed to provide the necessary certification. The Petitioner contended that the Trial Court's finding that the Petitioner did not move an application for the certificate was erroneous and exhibited a clear non-application of mind. The Supreme Court's decision in *Arjun Panditrao Khotkar* was cited, emphasizing that if a certificate is not obtained despite efforts, the Trial Court must summon the relevant authority to provide it.

Review of Previous Court Orders:
The Respondents argued that the Petitioner's application was essentially a review of the order dated 13 January 2022, which was not challenged. They claimed the application was belated and an afterthought to cover up lapses in evidence. However, the High Court found that the Petitioner had taken all necessary steps and that the application under Exh. 453 was correctly filed to request the Trial Court to call upon the Income Tax Department for the certificate. The argument that the application was a review of the previous order was dismissed as misconceived.

Conclusion:
The High Court held that the Trial Court's order dated 30 April 2022 exhibited clear non-application of mind and was perverse. The order was quashed and set aside. The Trial Court was directed to call upon the Income Tax Department to provide the required certificate under Section 65-B within four weeks. The High Court clarified that it had not made any findings on the merits of the suit, leaving all contentions open for trial.