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TMI Blog1973 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... dh Behari Rohatgi J. under rule 2 (as amended) of the Original Side Rules, 1967, in Suit No. 64 of 1969, instituted on the Original Side of this court. The questions referred to by the learned judge for the opinion of the Full Bench relate to the scope and effect of the provisions in sections 54 and 59B of the Indian Income-tax Act, 1922, and sections 137 and 138 of the Income-tax Act, 1961. The facts which have occasioned the reference are briefly the following. The plaintiff, Trilok Chand Jain, instituted the suit referred to above for recovery of Rs. 1,39,722.86 from the defendants, M/s. Dagi Ram Pindi Lall, its three partners, Pindi Lall, Bishamber Nath and Dagi Ram, and Smt. Budh Wanti, wife of Pindi Lall. While evidence was being recorded in the suit, the plaintiff obtained summons from the court requiring the income-tax department to produce in court the records relating to the income-tax of M/s. Dagi Ram Pindi Lall for the years 1964-65 to 1971-72. The Income-tax Officer, district II (XI), New Delhi, sent a letter, dated November 1, 1972, to the court claiming that the said records relating to M/s. Dagi Ram Pindi Lall were privileged under section 137 of the Income-tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the question of privilege claimed by the Income-tax Officers was likely to arise frequently on the original side in the course of trial of suits, the learned judge considered that the said question should be settled by a Full Bench of this court, and accordingly made the present reference suggesting that the question of privilege may be examined under the following three heads: "1. What is the position of law relating to privilege prior to 1964 ? 2. What is the position of law relating to privilege after 1964 ? and 3. What is the effect of the production of certified copies relating to income-tax assessment records, and how far certified copies can be admitted in evidence ?" It is thus that the matter has come up before us for our opinion. For a proper appreciation of the various points that are involved in the questions referred to us, it is necessary to refer to the relevant provisions in the Indian Income-tax Act, 1922, and the Income-tax Act, 1961 Sub-sections (1) and (2) of section 54 of the Indian Income-tax Act, 1922, provided as under: "54. Disclosure of information by a public servant.-(1) All particulars contained in any statement made, return furnished o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation to the Commissioner for information only as to the amount of tax determined as payable by any assessee in respect of any assessment made on or after April 1, 1960, and empowered the Commissioner to furnish or cause to be furnished the information asked for if he was satisfied that there were no circumstances justifying its refusal. The above legal position continued till April 1, 1962, when the Indian Income-tax Act, 1922, was repealed by the Income-tax Act, 1961, which came into force from the said date. In this new Act, provisions were made in sections 137 and 138 corresponding to the provisions in sections 54 and 59B respectively of the Indian Income-tax Act, 1922. The relevant portions of the said sections 137 and 138 read as under : " 137. Disclosure of information Prohibited.-(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 record of any assessment proceeding, or any proceeding relating to recovery of a demand, prepared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Income-tax Act, 1922 (11 of 1922), on or after the 1st day of April, 1960, the Commissioner may, if he is satisfied that it is in 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." It has to be noted that by the changes so made, the declaration of the confidential nature of the documents, the prohibition against a court requiring any public servant to produce such documents or to give evidence before it in respect thereof, and the prohibition against a public servant making a disclosure of any particulars in the said documents, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rform his or its functions under that law. (b) 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 under this Act or the Indian Income-tax Act, 1922 (11 of 1922), on or after the 1st day of April, 1960, the Commissioner may, if he is satisfied that it is in 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. " It has to be noted that the provision in the previous sub-section (1) of section 138 was incorporated in clause (b) of the new substituted sub-section (1), and a further provision was made in clause (a) of the new sub-section (1) empowering the Board or any other income-tax authority specified by it by a general or special order in that behalf to furnish or cause to be furnished information relating to any assessee to such officer, authority or body as was mentioned in the clause. Coming now to the questions referred to the Full Bench, the first of them is as regards the position of law relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at "its operation is not obliterated by any waiver by the assessee in whose assessment the evidence is tendered, document produced or record prepared". Similarly, in Commissioner of Income-tax v. Laxmichand Narayandas, the Supreme Court reiterated at page 550 that section 54 of the Indian Income-tax Act, 1922, contained in effect an unconditional prohibition against a public servant producing the documents, etc., mentioned therein, and that the section was not confined to documents produced by the assessee but applied also to documents produced before an income-tax authority by third parties. Also, disclosure by a public servant of any particulars contained in such documents, etc., was punishable. After April 1, 1960, section 59B also applied, and the Commissioner could furnish or cause to be furnished information, on an application by a person, only as to the amount of tax determined as payable by any assessee in respect of any assessment made on or after April 1, 1960, if he was satisfied that there were no circumstances justifying its refusal. The question then is whether the confidential nature of the aforesaid documents, records, etc., and the prohibition against their being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the Income-tax Officer was there even apart from the corresponding right of the assessee to forbid him from giving evidence, and that the prohibition was enacted in public interest to enable full and true disclosure to be made by the assessee and that was why it was not waivable by the assessee. At page 296, the learned judge observed that the Commissioner of Income-tax had both a right to refuse to produce the documents before the court as also an obligation not to produce them before the court. In Daulat Ram v. Som Nath, H. R. Khanna J. (as his Lordship then was) treated the matter as one of privilege. The learned judge observed at page 784 as under : "As a privilege existed in respect of the production of the documents in question at the time they were filed before the income-tax authorities in the present case, the aforesaid privilege could not be affected because of the repeal of section 54 of the Act of 1922, in view of the plain language of clause (c) of section 6 of the General Clauses Act." The learned judge also referred to and agreed with the view taken in S. V. Ramakrishna Mudaliar's case. In Tulsiram Sanganaria v. Smt. Annibai, Grover J. observed at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." In the latter case, it was observed as under: "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." With utmost respect to the learned judges of the Division Bench in the case of Ve. V. Sivagami Achi, we are unable to agree with their view. No doubt, the declaration in section 54 that the documents mentioned therein shall be treated as confidential was not from the point of view of any particular individual. But, in the context and on a plain reading of the section, it seems to us to be clear that the documents were requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 1871, under the provisions of the Crown Lands Alienation Act, 1861, and it was granted to him in fee simple. Later, in November, 1873, he took up a conditional purchase of a certain extent of adjoining land. Then in March, 1892, he applied for an additional conditional purchase of certain other land adjoining the land already purchased by him. Section 22 of the aforesaid Act of 1861 provided that holders in fee simple of lands granted by the Crown in areas not exceeding 280 acres might make additional purchases of adjoining lands. The said Act was repealed subject to a saving provision by the Crown Lands Act, 1884, which, like the Act of 1861, provided for additional conditional purchases, but section 22 of the Act of 1861 had no counterpart in the latter Act, there being no provision relating to the conditional purchase of adjoining lands by a holder in fee simple of lands granted by the Crown. Section 2 of the Act of 1884, under which the former Act was repealed, contained a proviso which read as under: "Provided always that notwithstanding such repeal- .. .... (b) all rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim compensation under the section; and (ii) if the claim for compensation was not made within three months after the time at which the tenant quits the holding. The landlord, Hamilton Gell, gave his tenant, John White, notice to quit. The tenant duly gave notice of his intention to claim compensation within the time limited. But, before the tenancy had expired, and, therefore, before he could satisfy the second condition, section 11 of the Act of 1908 was repealed. He subsequently made his claim within three months limited by the section. It was held by the Court of Appeal that notwithstanding the repeal he was entitled to claim compensation under section 11 by virtue of section 38 of the Interpretation Act, 1889, which corresponds to section 6(c) of the Indian General Clauses Act. It was pointed out that when the landlord gave the tenant notice to quit, the tenant acquired a right to compensation for disturbance under section 11. The decision in Abbott's case was distinguished at page 428 as follows: "This is not like the case which was cited to us (Abbott's case ) in argument where the tenant's right depended upon some act of his own. Here, it depends upon the act of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view of the Division Bench of the High Court of Madras in Ve. V. Sivagami Achi's case. The learned judge concluded that section 54 was intended to create a right and a privilege in favour of the assessee and other persons concerned, and that it was for the preservation of that right or privilege that an absolute obligation was imposed upon the income-tax authorities never to divulge to anybody including a court any information from the assessment records. The learned judge also observed that the obligation extended to each document referred to in section 54(1). Mr. Watel, learned counsel for the defendants, referred to the decision of the Supreme Court in Lalji Raja and Sons v. Firm Hansraj Nathuram. It is necessary to state the facts in the said case. Lalji Raja and Sons obtained a decree against Firm Hansraj Nathuram in the Court of Sub Judge, Bankura, West Bengal, on December 3, 1949. On an application by the decree-holder, the court which passed the decree transferred the decree to the court of the Additional District judge at Morena in the then State of Madhya Bharat for execution. The judgment--debtor resisted the execution on the ground that the transferee court had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that the repeal shall not affect ..... (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed ..... as if this Act had not been passed " The said provision thus protected the rights acquired and privileges accrued under the law repealed by the amending Act. The argument before the Supreme Court was that the non-executability of the decree in the Morena court under the law in force in Madhya Bharat before the extension of the Code could not be said to be a right accrued under the repealed law. Hegde J., speaking for the court, held that even by straining the language of the provision it could not be said that the non-executability of a decree within a particular territory could be considered as a privilege, that in order to get the benefit of the provision in section 20(1)(b) of the Amendment Act, the non-executability of the decree must, firstly, be a right and, secondly, it must be a right that had accrued from the provisions of the repealed law, and that it was difficult to consider the non-executability of the decree in Madhya Bharat as a vested right of the judgment-debtors. The learned judge pointed out that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also the prohibition against a court contained in section 54 related to the procedure and jurisdiction of the court, and that under the provision in section 54 it cannot be said that a right, privilege or obligation had been acquired, accrued or incurred within the meaning of section 6(c) of the General Clauses Act. We are unable to accept the contention. in the case before the Supreme Court, the Morena court had no jurisdiction to start with, and the want of jurisdiction was remedied by the extension of the Indian Code of Civil Procedure to Madhya Bharat and the court was made competent to execute the decree. In the case of section 54, it laid down a prohibition against the court doing a certain act and the same cannot be regarded, in our opinion, as one relating to procedure or absence of jurisdiction. The prohibition in section 54 was a substantive provision and not merely procedural, and the section only required the court not to exercise the jurisdiction normally vested in it. It was just a restraint on the existing jurisdiction of the court. The learned counsel cannot, therefore, derive any assistance from the decision. We have already referred to the decisions in Hamilton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to the characteristics of a legal right set out at page 21 in the aforesaid book. He argued that, as pointed out by Salmond, rights and interests are not identical, and that even if an assessee or a third party may be regarded as having an interest in the confidential nature of the documents, records, etc., filed by him as declared in section 54, and in the protection against the disclosure of the particulars in the said documents, etc., contained in the section he cannot be regarded as having acquired a right in respect of the same. We do not think so. It is true that rights and interests are not identical. But the question is whether the assessee or the third party acquired a right or merely an interest under section 54. As pointed out earlier, the assessee or the third party acquired a right or a right accrued to the assessee or the third party under the section. In our opinion, it is not a mere interest that he acquired or that has accrued to him. Even as explained by Salmond, an interest is merely an advantage to be enjoyed by the assessee, while a right is one which ought not to be taken away from him by others. Further, section 54, as explained earlier, imposed an obl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of inquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot, therefore, subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material." It has, therefore, to be seen whether a different intention appeared in the repealing enactment, the Income-tax Act, 1961. This aspect has been considered in some decisions. In O. P. Aggarwal, Income-tax Officer v. State, a Division Bench (S. B. Capoor and. J. S. Bedi JJ.) of the High Court of Punjab held at page 170 that : " "...... there is nothing in the Income-tax Act, 1961, which manifests an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivilege which had accrued when section 54 was in force. This view of the learned judge supports the view expressed by us. In Raghubir Saran's case, an application was filed in a suit for the recovery of arrears of rent to summon the income-tax assessment records of the defendant to prove a statement alleged to have been made by him during the course of his assessment proceedings which took place when section 54 of the Indian Income-tax Act, 1922, was in force. R. L. Gulati J. held that the obligation on the part of the income-tax authorities to treat the same as confidential under section 54 had accrued the moment the statement was recorded, and neither the repeal of the Indian Income-tax Act, 1922, nor the enactment of the Income-tax Act, 1961, had obliterated the obligation imposed by section 54. The learned judge expressed the view that the repealing Act of 1961 did not disclose any intention of the legislature to destroy the effect of section 54, and that by enacting section 137 in the new Act the legislature's clear intention was to preserve intact the object of section 54 of the old Act. This discussion also supports the view taken by us. In Chandrasekhara Mandian v. Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by a single judge, K. Veeraswami J., of the High Court of Madras. For the reason given above, we are unable to agree with this decision also. In Kalawati Devi Harlalka v. Commissioner of Income-tax, assessments were made under the Indian Income-tax Act, 1922, prior to its repeal, for assessment years 1952-53 to 1960-61, and after the repeal of that Act by the Income-tax Act, 1961, the Commissioner issued a notice on January 24, 1963, under section 33B of the Act of 1922, for revision of those assessments. The Supreme Court held that section 297(2)(a) of the Income-tax Act, 1961, included within its scope a proceeding under section 33B of the Indian Income-tax Act, 1922, and that the Commissioner, therefore, had jurisdiction to issue the notice under section 33B of the Indian Income-tax Act, 1922, in view of section 297(2) of the Income-tax Act, 1961. In that context, the Supreme Court observed that section 297 was meant to provide as far as possible for all contingencies which may arise out of the repeal of the 1922 Act, and section 6 of the General Clauses Act, 1897, would not apply because section 279(2) specifically evidenced an intention to the contrary. As observed by Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained provisions similar to those in sub-sections (1) and (2) of section 54 of the 1922 Act) the prohibition therein would continue to operate in spite of the deletion of the section in 1964 as a contrary intention was not apparent in the Finance Act (No. 5 of 1964) or in sub-sections (1) and (2) of sect on 138 as inserted by the said Finance Act, and the prohibition contained in section 137 had not been destroyed. In Ve. V. Sivagami Achi's case, the Division Bench of the Madras High Court (Veeraswami and Krishnaswamy Reddy JJ.) agreed that Venkataraman J. rightly held in S. V. Ramakrishna Mudaliar's case, that section 138(2) did not contain any intention so as to eliminate the application of section 6 of the General Clauses Act. The learned judges, however, took the view that section 137, like its predecessor section 54 of the Indian Income-tax Act, 1922, neither created an obligation nor privilege or right which could be properly regarded as having been incurred, acquired or having accrued and, therefore, section 6(c) of the General Clauses Act was not attracted to the omission of section 137. We have already indicated our disagreement with the said view of the learned judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have pointed out above the view taken in S. V. Ramakrishna Mudaliar's case , Ve. V. Sivagami Achi's case Daulat Ram's case, Raghubir Saran's case and Chandrasekhara Mandian's case. In our view also it cannot be said that the legislature had indicated an intention to destroy the effect of section 54 of the Indian Income-tax Act, 1922, by deleting section 137 from or by amending section 138 of the Income-tax Act, 1961. We do not find any such intention either in the Finance Act, 1964 (5 of 1964), or in sub-sections (1) and (2) of section 138 as inserted by the said Finance Act. No doubt, sub-sections (1) and (2) of section 138 did not contain a declaration or prohibition as was laid down in sub-sections (1) and (2) of sections 54 and 137. But, that by itself, in our opinion, does not show an intention to destroy any right that was acquired or accrued or the obligation that was incurred either under sub-sections (1) and (2) of section 54 or under sub-sections (1) and (2) of section 137. Also, as pointed out by Venkataraman J. in S. V. Ramakrishna Mudaliar's case, with which H.R. Khanna J. agreed at pages 785 and 786 in Daulat Ram's case, the mere fact that the discretion was exclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended to continue, then section 137(5) also would have been continued, and that the fact that the legislature omitted section 137 in toto including sub-section (5) thereof showed that the intention was not to continue the effect of the provisions in sub-sections (1) and (2) of sections 54 and 137. It is true that sub-section (5) of section 137 permitted the assessee or the party by whom the documents were filed to produce or disclose the same if he so desired, and subsequently the legislature, in its wisdom, instead of giving that option to the assessee left the production and disclosure to the discretion of the Commissioner. That does not, however, mean, in our opinion, that the right or obligation acquired, accrued or incurred by virtue of sections 54 and 137 was thereby completely destroyed. It would at the most mean that the said right or obligation which was earlier subject to the option given to the assessee or the party that filed the documents, has since been made subject to the power given to the Commissioner. Mr. Watel argued also that while under section 54 of the Indian Income-tax Act, 1922, there was an absolute ban against the court requiring the production of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in section 138(1)(b). From this circumstance alone, it cannot be said, in our opinion, that the intention was to destroy the right or obligation already acquired, accrued or incurred. On the other hand, the fact that section 138(1)(b) provides only for assessments on or after April 1, 1960, as did the provision in sections 59B and 138 when sections 54 and 137 were in force, seems to suggest that the intention was not to destroy such right or obligation. The last contention of Mr. Watel regarding question 1(a) was that whatever might have been the position prior to April 1, 1967, section 138(1)(b), which was enacted on the said date, enabled a person to make an application to the Commissioner for any information relating to any assessee in respect of any assessment made under the 1922 Act or the 1961 Act on or after April 1, 1960, that the words " on or after the 1st day of April, 1960 ", referred to the making of the application and not to the making of the assessment, that consequently a person could apply after April 1, 1960, under section 138(1)(b) for information even in respect of documents, records, etc., filed when section 54 was in force, that section 138(1)(b) thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en after April 1, 1967, the documents, records, etc., filed prior to April 1, 1962, cannot be required by a court to be produced and evidence thereof cannot be required by a court to be given. The contention of the learned counsel has, therefore, to be rejected. For the foregoing reasons, our answer to question 1(a) is that where documents, records, etc., such as were mentioned in section 54(1) of the Indian Income-tax Act, 1922, were filed by an assessee or a third party before April 1, 1962, in respect of assessment years up to and including assessment year 1961-62, in proceedings for the said assessment years taking place under the Indian Income-tax Act, 1922, the declaration of their confidential nature and the prohibition against a court requiring any public servant to produce before it any such documents, etc., or to give evidence before it in respect thereof laid down in section 54(1), and the liability of a public servant to punishment for disclosure of 'any particulars contained in such documents, etc., laid down in section 54(2) remained unaffected and continued to subsist notwithstanding the repeal of the Indian Income-tax Act, 1922, the enactment of the Income-tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sub-section (2) of section 54 of the Indian Income-tax Act, 1922, made the disclosure by a public servant punishable. This difference in the provisions is immaterial for the purposes of the present discussion. Sub-sections (3) to (5) of section 137 of the Income-tax Act, 1961, were similar to sub-sections (3) to (5) of section 54 of the Indian Income-tax Act, 1922. The provisions in section 138 of the former Act were also similar to the provisions in section 59B of the Indian Income-tax Act, 1922; that being so, the reasons given by us regarding documents, records, etc., filed prior to April 1, 1962, in dealing with question 1(a) would apply equally to the documents mentioned in question 1(c) also. In other words, the answer to question 1(c) is that where documents, records, etc., such as were mentioned in section 137(1) of the Income-tax Act, 1961, were filed by an assessee or a third party after April 1, 1962, but before April 1, 1964, in respect of assessment years up to and including assessment year 1961-62, in proceedings for the said assessment years taking place under the Income-tax Act, 1961, the declaration of their being of confidential nature and the prohibition agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions 2(a) to 2(d) and answered seriatim. Into which of the four categories (a) to (d) of the second question a given proceeding would fall, has to be determined in the light of the provisions in section 297(2) of the Income-tax Act, 1961. So far as question 2(a) is concerned, since the proceedings were taking place under the Indian Income-tax Act, 1922, in respect of assessment years up to and including 1961-62, the provisions in sections 54 and 59B apply, and the position in law is the same as that stated by us in our answers to questions 1(a) and 1(b) above. As regards question 2(b), it has to be noted that although the assessment years were up to and including the assessment year 1961-62, yet the proceedings were taking place under the Income-tax Act, 1961, and the documents, records, etc., were filed after April 1, 1964, i.e., when sections 54 and 59B had been repealed, section 137 also had been omitted and either section 138(1) and (2) as substituted by the Finance Act (No. 5 of 1964) or section 138(1)(a) and (b) and (2) as substituted by the Finance Act (No. 20 of 1967) was in operation. Therefore, section 138(1) and (2) as substituted by the Finance Act (No. 5 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid clause was not amenable to that interpretation. The learned judges observed at page 9 that the function to be performed by the Commissioner under section 138(1)(b) was purely administrative and his decision was subjective on the point whether it was in the public interest to furnish the information or not and that was why his decision had been made final ; that it could not be said that by enacting the aforesaid provision of law, the legislature intended that the Commissioner of Income-tax was to sit in judgment over the requisition made by a court of law requiring the production of certain records of assessment relating to an assessee ; that the scope of the power of the court under the general law for summoning the relevant record was entirely different from the scope of the power of the Commissioner of Income-tax under the aforesaid clause; and that the repeal of section 137 of the Act of 1961 clearly indicated that the legislature thought that it was no more necessary to keep the records of assessment by the income-tax department relating to an assessee as confidential, and the bar with regard to the production of any part of the assessment records was removed as fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral law to summon such documents, records, etc., relevant to the case before it has been restored. But at the same time, the legislature which empowered the Commissioner of Income-tax to furnish the information if he is satisfied that it is in the public interest so to do, made the decision of the Commissioner final and unquestionable in a court of law. When two powers are thus vested in two legal authorities, neither of them can be ignored, and both of them have to be reconciled and given effect to. In the case of the two powers under consideration, it has to be noted that the power to summon which vests in a court is under the general law, while the power of the Commissioner has been conferred upon him by a special law and has, therefore, to prevail over the former. In view of the same, it has to be held that while it is open to a court to summon the documents, records, etc., from the Income-tax Commissioner, it is equally open to the Commissioner on receiving the summons to consider whether the production/furnishing of the documents, records, etc., would be in the public interest, and submit the same to the court in answer to the summons. The above view seems to be correct and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not to disclose " the price of the goods or the name of the importer of the goods ". In other words, those said matters were sacrosanct, and not even the Secretary of State could require them to be disclosed even when it was in the national interest. Referring to the said provision, Lord Denning observed at page 818 as under: "Even if the plaintiffs could overcome that hurdle they are faced with another. It is that the names of the importers were given to the customs authorities in confidence for a limited and restricted purpose and the courts ought not to compel the customs to break that confidence." Similarly, in the present case, a court has to respect the restraint placed on the Commissioner of Income-tax and desist from breaking the confidence reposed in the income-tax authorities by any assessee or the third party. The view taken by us above is in accord with the said principle. For the foregoing reasons, our answer to question 2(b) is that when a party to a proceeding in a court applies for summoning any documents, records, etc., from the income-tax authorities, the court may summon the said documents, records, etc. But, on receipt of the summons, it is open to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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