9911796707
TMI Blog2002 (7) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... rt facts so narrated in the revision application tend to reveal that O.P. No. 1 as plaintiff has filed the aforesaid T.S. No. 65 of 1997 for partition of the suit lands making the present petitioner and O.P. No. 2 as defendants. During the course of hearing of the suit, defendant No. 1 filed a petition under Order 13, rule 10, Civil Procedure Code, contending that the plaintiff--O.P. No. 1 and his father had separately submitted income-tax returns and also filed statements before the income-tax authority disclosing therein partition of their ancestral properties in the year 1955 in terms of the decree passed in T.S. No. 126 of 1955. As the present petitioner-defendant No. 1 has taken a plea that the suit properties had already been partitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into error by holding that the income-tax records of the opposite party so sought to be called for from the custody of the Assistant Commissioner of Income-tax are privileged documents, and cannot be summoned in view of the restriction imposed by section 123 of the Evidence Act. On the contrary, Shri Rath for the opposite party submits that those documents cannot be summoned in view of the restriction imposed under the provisions of sections 123 and 124 of the Evidence Act as well as section 138 of the Income-tax Act. Section 138 of the Income-tax Act deals with "Disclosure of information respecting assessees". Learned counsel for the petitioner specifically draws my attention to the provision in section 138(1)(b) of the Income-tax Act, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 194 ITR 228; [1992] 2 SCC 13 held thus: "...under the Code of Civil Procedure, the courts of law have always possessed the jurisdiction to call for the production of documents relevant to the case before the court from anybody having custody of those documents. Section 54 of the 1922 Act and, after its repeal, section 137 of the 1961 Act had only placed fetters on the exercise of that jurisdiction, in respect of the specified documents, by the courts, notwithstanding anything contained in any other law for the time being in force. The exercise of the jurisdiction to seek production of documents had, thus, only been put under a cloud in so far as the record of assessment is concerned. With the repeal of the 1922 Act and omission of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment years 1964-65 onwards. Section 6 of the General Clauses Act as well as section 138(1)(b) of the 1961 Act cannot extend the ban on the exercise of the jurisdiction by courts to summon the production of documents from the income-tax authorities after April 1, 1964, relating to the assessment year 1964-65 in respect of the record filed after April 1, 1964." Dealing with the question of privilege, the court in the aforesaid decision observed as follows: "... When a court of law, in any matter pending before it, desires the production of record relating to any assessment after applying its judicial mind and hearing the parties and, on being prima facie satisfied that the record required to be summoned is relevant for the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public interest in the administration of justice and on that account, it should not be allowed to be disclosed. The final decision in regard to the validity of an objection against disclosure raised under section 123 would always be with the court by reason of section 162." From the above decisions, it is clear that it is open to the Commissioner of Income-tax to claim privilege in respect of a document ..... X X X X Extracts X X X X X X X X Extracts X X X X
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