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TMI Blog1966 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... 1948-49. The petition in the first instance was posted before Natesan J. who thought that there was a conflict of opinion in regard to the effect of the repeal of section 137 of the Income-tax Act, 1961, and referred the question to be decided by a Division Bench. That is how the petition comes before us. The suit is for directing the first defendant to produce his accounts and render a true and faithful account of the moneys gifted to the plaintiff by her father and kept by himself as trustee for her in or about Karthigai-Margali of Akshaya year for improving and augmenting the same, and after his death kept, managed, controlled and improved by the defendants as trustees for the plaintiff and for a decree against the first defendant for payment to the plaintiff of such amount as may be found due on rendition of accounts. While the suit was pending, the petitioner applied to the Subordinate Judge under rule 76 of the Civil Rules of Practice for summoning from the Income-tax Officer certain documents. One of these documents related to the income-tax examination proceedings notes pertaining to the first defendant for the year Vikrama (1941-42) in respect of the sale proceeds of 5 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Act, 1922, sections 137 and 138 of the Income-tax Act, 1961, and the omission or modification of one or the other of those sections by the Finance Act, 1964. But confronted with two conflicting decisions each by a learned single judge of this court in Income-tax Officer, Central Circle, Madras v. Ramaratnam and Ramakrishna Mudaliar v. Rajabu Fathima Bukari, as to the effect of repealing section 137, he thought it necessary to refer the matter to a Division Bench. Before we proceed to consider the point in controversy, it is first necessary to notice the relative statutory provisions. Section 54 of the Income-tax Act, 1922, related to disclosure of information by a public servant. By sub-section (1) of that section, it was enjoined that the particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the Act, or in any evidence given or affidavit or deposition made, in the course of any proceedings under the Act, except under Chapter VIII or in any record of any assessment proceedings, should be treated as confidential. The second limb of sub-section (1) put a bar on courts and directed that no court, exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be seen that, as a result of the omission of section 137 and the substitution of section 138 by a new sub-section, there is no longer any general declaration of the particulars contemplated by the omitted section 137(1) being treated as confidential and no longer the bar placed by that sub-section on courts is maintained. The prohibition against any public servant disclosing certain particulars also has disappeared. The position, therefore, is that no particulars contained in any document whatever filed or produced during assessment proceedings are confidential and the bar on the court from summoning for such particulars is lifted. Section 138(2) of the Income-tax Act, 1961, gives the power to the Central Government, as we said, to specify by a notified order the particulars which might be treated as confidential. Section 280, as modified, visits the delinquent officer who contravenes an order notified under section 138(2) with penal consequences. It is common ground that no order has so far been notified under section 138(2) as far as our attention has been invited to. The question is what precisely is the effect of the omission of section 137 from the Income-tax Act, 1961, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, there is no question of the existence of any inconsistency or incompatibility, leaving the field clear to attract the interpretation clause, namely, section 6. Sadasivam J. in Income-tax Officer, Central Circle, Madras v. Ramaratnam, however, found in section 138, as modified by the Finance Act, 1964, an intention to the contrary. The learned judge observed : " Though section 137 of the Income-tax Act, 1961, is repealed by the Finance Act of 1964, there is modified restriction by virtue of section 138, clause (2), introduced by the same Act. " This, according to the learned judge, is an indication of the intention to the contrary rendering section 6 of the General Clauses Act inapplicable. Venkataraman J. was, however, of a different view in Ramakrishna Mudaliar v. Rajabu Fathima Bukari. He considered that section 138(2) was not incompatible or inconsistent with the effect of section 137 being continued notwithstanding its omission by reason of section 6 of the General Clauses Act. The learned judge took note of the fact that actually, as far as he was informed, there was no notified order under section 138(2). The learned judge went further and thought that the matter co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndpoint of the revenue. Venkataraman J. himself noticed in the case cited that the prohibition against disclosure was enacted in public interest to enable a full and true disclosure to be made by the assessee. The same idea is to be found also in P. Kandiah Thevar v. Third Income-tax Officer, Tirunelveli. Now what is it that section 137(1) says ? It merely declares that the particulars specified should be treated as confidential. To our minds that in itself does not create any liability or right or privilege. We think that the declaration is not from the point of view of any particular individual. Such a declaration does not confer a right or impose an obligation on any specified person. No particular person can, by virture of this declaration, be said to have incurred an obligation or acquired a right or privilege. The confidence is directed to be kept in respect of the particulars not by any particular officer but it is attached to the very particulars. Likewise, the second part of sub-section (1), as it seems to us, contains but a bar on courts from summoning for the specified particulars. So too, sub-section (2) enjoins a prohibition against any public servant disclosing such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view : "It is obvious that that provision was not intended to preserve the abstract rights conferred by the repealed Act, such for instance as the right of compensation for disturbance conferred upon tenants generally under the Act of 1908, for, if it were, the repealing Act would be altogether inoperative. It only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute." The learned judge in that decision also quoted from Abbott v. Minister for Lands, the following observation which, we think, is pertinent to the present consideration : " The mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed to be a 'right accrued' within the meaning of the enactment. " . It is no doubt true that an assessee who files documents before an Income-tax Officer may feel aggrieved by the disclosure by that officer of the particulars therein contained. But what he can do about it and what is his right in relation to it ? He cannot t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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