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TMI Blog1965 (8) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... xure lying with the learned Commissioner of Sales Tax will be required for the purpose of investigation into the marginally noted case. Opinion of the learned Director of Public Prosecution has been obtained to that effect. I, therefore, pray that summons U/S. 94 Cr.P.C. may kindly be issued for service and return, so that we may examine and scrutinise all the papers contained in the respective files." It may be noted here that in the copy of the said application which has been made annexure to the affidavit-in-opposition on behalf of the State of West Bengal (respondent) no case has been noted in the margin, as stated in the copy of the application. On the 23rd July, 1963, the learned Chief Presidency Magistrate, Calcutta, issued the following summons under section 94 of the Code of Criminal Procedure: "To The Commissioner of Commercial Taxes, West Bengal, 14, Beliaghata Road, Calcutta. (i) Case No. 173 of 1962 (State v. Madanlal Gajanand Others) under section 465/469/471 I.P.C. Whereas it appears to this Court that production of the undermentioned documents is necessary for the purposes of the investigation/enquiry/trial/proceedings under the Code of Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disclosure- (a) of any of the particulars referred to in sub-section (1)- (i) for the purposes of a prosecution under the Indian Penal Code in respect of any such statement, return, accounts, document or evidence, or for the purposes of a prosecution under this Act." Admittedly, the documents which the Commissioner of Commercial Taxes has been asked to produce are not required for the purposes of a prosecution under the Bengal Finance (Sales Tax) Act, 1941. The requisition which was made by the Inspector of Police, Enforcement Branch, before the Chief Presidency Magistrate does not state that the documents were required for the purposes of a prosecution under the Indian Penal Code in respect of any statements, returns, accounts, documents as specified in sub-section (1) of section 25. Nor does the learned Chief Presidency Magistrate state in his order that those statements, etc., are so required. What the learned Chief Presidency Magistrate has stated in his order is, "The summons U/S. 94 Cr. P. Code was issued, as, in the opinion of this Court, the documents were found necessary for the purposes of a prosecution under different sections of the I.P. Code. But the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." The learned Chief Presidency Magistrate tried to distinguish the decision reported in Commissioner of Income-tax, Bombay v. Laxmichand Narayandas and Another(2) with the following observations: "The above decision of the Supreme Court is in respect of one aspect of section 54 of the Income-tax Act. Section 25 of the Bengal Finance (Sales Tax) Act, although couched similar to section 54 of the Income-tax Act, appears to differ in one very material respect, in that the expression 'in any record of any assessment proceeding or any proceeding relating to recovery of a demand prepared for the purposes of this Act' is not to be found in section 25 of the Bengal Finance (Sales Tax) Act. The above Supreme Court decision is therefore distinguishable and the petitioner's contention that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bengal Finance (Sales Tax) Act, 1941, was a bar against disclosure of the papers as directed. The learned Chief Presidency Magistrate having rejected the objection, the Commissioner of Commercial Taxes has come up to this Court. The documents, the production whereof were required, are itemized in an annexure to the affidavit-in-opposition filed on behalf of the respondent. They are certain sales tax returns, the files of assessment of the firm, particulars of declaration forms and particulars of registration numbers. Section 25(1) of the Bengal Finance (Sales Tax) Act above imposes a general ban on certain documents which are declared to be confidential. The section further puts a restriction on the courts requiring the production of the documents notwithstanding anything contained in the Indian Evidence Act. Section 25(2) of the Act imposes a similar restriction on the servants of the Government against disclosure of the documents mentioned and provides a penalty for disclosure of the documents in violation of the section. Section 25(3) of the Act, however, contains an exception in so far as it states that if there is a prosecution under this Act or a prosecution un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions made before him that the other documents called for formed part of the record of assessment of the firm and in view of his finding that the record of assessment is not protected under the Bengal Finance (Sales Tax) Act, 1941, the learned Chief Presidency Magistrate came to the conclusion that those other papers also forming part of that record are not protected against disclosure. It is in that view of the matter that he rejected the application of the Commissioner of Commercial Taxes. In our view, the learned Chief Presidency Magistrate fell into an error in coming to the finding that he has arrived at. Records of assessment which are included in section 54 of the Indian Income-tax Act are, no doubt, not protected under section 25 of the Bengal Finance (Sales Tax) Act. Neither section 25(1) of this Act nor section 25(3) of the Act imposes ban or lifts that ban in so far as records of assessment are concerned. It may be that the other documents required in the case formed part of the record of assessment but those documents are separately mentioned in section 25(1) of the Bengal Finance (Sales Tax) Act, 1941, and are given protection against disclosure under that provision. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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