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TMI Blog1958 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission sent it for trial to the District Judge of Bijnor who was appointed as the Election Tribunal to try and dispose of the election petition. The respondent had impleaded the appellant and one Banwari Lal as opposite parties to the election petition. The appellant was impleaded as the duly elected candidate and Banwari Lal as one of the candidates who had committed certain corrupt practices. In the election petition three grounds were taken, namely, that the appellant was disqualified from being chosen as a member of the Legislative Assembly in view of the provisions of section 7(d) of the Act, that the appellant, along with his relations, workers, supporters and agents, had committed corrupt practices of undue influence, bribery and systematic appeal to the electors to vote for him on the ground of his community and religion. The third charge was that Banwari Lal, opposite party in the election petition, had been bribed by the appellant in order to induce Banwari Lal to stand as a candidate at the election. Both the appellant and Banwari Lal contested the election petition, but on the 31st July, 1957, the learned counsel for the respondent, Ratan Lal Jain, made a statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not carried on this business individually or in partnership with anybody else. He alleged that his only business was agricultural farming. As a result of the pleadings, the Election Tribunal framed the following issue, which is the only issue relevant for the purpose of the appeal. Issue No. 1.-Was respondent No. 1, Shri Allah Bux, disqualified under section 7(d) of the Representation of the People Act, 1951, for being chosen as a member of the Uttar Pradesh Legislative Assembly? If so, its effect? In order, however, to see whether the respondent has been able to establish the ground of disqualification set up in the election petition, we shall have to consider whether all the ingredients set out in section 7 (d) of the Act have been fully proved by the respondent. The respondent has to establish: 1.. Whether the firm Azmatullah Inayatullah had a contract for the supply of sleepers, which contract subsisted on the relevant dates? 2.. Whether the appellant had a share or interest in the said contract for the supply of sleepers? 3.. Whether the contract had been entered into either by the appellant himself or by any other person, that is Ali Husain, for the benefit of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) All particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the Act or of the rules made thereunder, or in any evidence given or affidavit or deposition made, in the course of any proceedings under the Act or the rules made thereunder, or in any record of any proceedings relating to the recovery of a demand, prepared for the purpose of the Act or the rules made thereunder, shall be treated as confidential." Sub-section (2) permits disclosure of certain particulars which are enumerated in clauses (i) to (vi) of the sub-section. A reading of this sub-section shows that the sub-section directs that the matters enumerated in it shall be treated as confidential. They are particulars contained in any statement made or return furnished in the course of any proceedings under the Act or the rules or in the record of any proceedings relating to recovery of a demand, as well as certain other papers with which we are not concerned. The argument of the learned counsel is that the statement made by the appellant before the Sales Tax Officer and the return furnished to him are directed to be treated as confidential, which necessari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, 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." The whole of the above sentence is omitted from section 23(1) of the U.P. Sales Tax Act, which goes to show that the prohibition contained in the sentence quoted above has not been applied to the documents mentioned in section 23(1) of the Sales Tax Act. Sub-section (2) of the Sales Tax Act contains certain exceptions as also does subsection (3) of section 54 of the Indian Income-tax Act contain a clear direction to the courts not to require any public servant to produce before them the documents specified in the sub-section. The existence of similar exceptions in sub-section (1) of section 23 of the U.P. Sales Tax Act, therefore, does not have the effect that the direction to use the documents as confidential must necessarily mean that the courts should not accept evidence afforded by the documents enumerated in the sub-section, if they do not fall within the exceptions mentioned in sub-section (2) of section 23 of the Sales Tax Act. The very fact that the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69; 8 I.T.R. 450. has also taken the view that the fact that the return of the income-tax is to be treated as a confidential document does not mean that the assessee himself cannot obtain a copy of it for his own purpose. For the above reasons, we are unable to accept the contention of the learned counsel that the Election Tribunal was not authorised to take exhibits 9, 44 and 48 into evidence. The question was raised before the Election Tribunal also and it passed a considered order permitting the respondent to produce the documents concerning the sales tax and to produce the Sales Tax Officer, but it refused to permit the respondent to examine the Income-tax Officer or to have any documents concerning income-tax proceedings of the firm to be produced in court. We may now proceed to consider what exhibits 9, 44 and 48 prove. Exhibit 9 is the order of assessment for the assessment year 1955-56. The name of the dealer is mentioned as "Azmatullah Inayatullah, Timber Merchant, Dhampur", and it is said that the dealer was represented by "Allah Bux (appellant) partner". In the body of the order it is stated that in response to the notice under the U.P. Sales Tax Rules to produce the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of turnover is a part of the official record maintained by the Sales Tax Officer and the return is a public document admissible under section 35 of the Evidence Act. The Full Bench of the Madras High Court in the case of Rama Rao v. Venkataramayya(1940) I.L.R. 1940 Mad. 969; 8 I.T.R. 450., cited above, held that profit and loss statement and a statement showing the details of the net income filed by an assessee in support of his return of income furnished under section 22 of the Income-tax Act are public documents within the meaning of section 74 of the Indian Evidence Act and the certified copies of the same would be admissible under section 65(8) of the Indian Evidence Act. We agree with the decision of the Madras High Court and, on the principle laid down in the case, it must be held that the return of sales tax filed by an assessee under the U.P. Sales Tax Act is also a public document. Apart from section 35 of the Indian Evidence Act, we think this return of the sales tax is also admissible under section 11 of the Evidence Act, as it makes the existence of the fact in issue highly probable. But even if this document is excluded from consideration, the evidence afforded by exh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was administered. The above three documents leave no room for doubt that the appellant was a partner in the firm Azmatullah Inayatullah in the year 1955-56 and also on the date he furnished the returns, that is 31st March, 1956, and on the date that he made the statement, i.e., 16th May, 1956. The assessment for the year 1956-57 has not yet been completed and no useful papers regarding that assessment could, therefore, be filed. The appellant took up the case that he was never a partner in this firm after 1946. This case has been conclusively proved to be wrong and the contrary has been established. Section 109 of the Evidence Act is to the effect that when the question is whether the persons concerned are partners and it has been shown that they had been acting as such, the burden of proving that they are not partners or that they had ceased to be partners is on the person who says that he was not a partner or had ceased to be a partner. The presumption under this section, therefore, is that the appellant, who has been acting as a partner, is in fact a partner in the firm Azmatullah Inayatullah, and that he continues to be such. Apart from the above presumption, other circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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