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TMI Blog2023 (6) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate be given. The Trial Court has observed that the Petitioner neither moved an application on his own account for getting the certificate directly from the concerned department nor filed an application before the Court for directing the concerned department for submitting the certificate before passing an order of admissibility of documents - The documents in respect of Shri Prakash Ahuja, having admittedly, been furnished by the Income Tax Department, the said certificate being mandatorily required under Section 65-B to certify the documents necessary to decide the lis between the parties, an application for the same cannot remotely said to be an abuse of the process of law or be an application to cover up lapses in the evidence. The Petitioner had put all his efforts to obtain the said certificate and therefore it also cannot be said that there was a lapse on his part. The Petitioner has done everything to obtain the necessary certificate in respect of the documents produced by the Income Tax Department, had also moved the application Exh. 453 before the Trial Court for issuance of direction to the Income Tax Department for the necessary certification and despite th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that the photocopies of the Income Tax records were without a certificate from the Income Tax Department. 4. Learned Counsel for the Petitioner would submit that in view of the decision of the Hon ble Supreme Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors. (2020) 7 SCC 1, when documents are produced by authorities, in order to ensure the source and authenticity of the said documents, it is not only mandatory to obtain a certificate under Section 65-B (4) of the Indian Evidence Act, 1872, but despite efforts, if the person seeking such a certificate is unable to do so, he can apply to the Court for its production and the judge conducting the trial must summon the persons referred to in Section 65-B(4) of the Evidence Act and require that such certificate be given by such person/persons. Drawing attention to paragraph 4 of the said application, learned Counsel would submit that despite all efforts made by the Petitioner to procure the certificate under Section 65-B of the Evidence Act, left with no choice the Petitioner preferred the application under Exh. 453, which has been rejected by the Trial Court inter alia on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate / letter in support of the tax records of late Mr. Prakash Ahuja and on receiving such certificate mark list at Exh. 313 in evidence. 5. On the other hand, Mr. Kunal Bhanage, learned Counsel for the Respondents would submit that the Petition cannot be allowed in as much as the Petitioners have not challenged the order dated 13 January 2022, pursuant to which the Trial Court has not allowed documents filed below list Exh. 313 to be exhibited in evidence. Learned Counsel for the Respondents relies upon the reply affidavit filed in application under Exh. 453 and submits that the said application is in effect seeking a review of the order dated 13 January 2022, pursuant to which the Trial Court has directed that the said documents not be exhibited, which cannot be permitted as the Petitioner has not established any case to review the said order dated 13 January 2022 and therefore, the application for review is not maintainable. 6. Learned Counsel for the Respondents further submits that the Petitioner never demanded or insisted the issuance of the certificate under Section 65-B in respect of the said documents and that the said prayer has been made not only belatedly but as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents to produce Income Tax Returns of Prakash Ahuja among other documents, however, when despite best efforts, no such documents came to be produced by the Respondents, the Petitioner filed an application under Exh 291 on 20 December 2018 for issuance of witness summons upon the Commissioner of Income Tax to produce the Income Tax records of Prakash Ahuja and the Respondents and by an order dated 8 February 2019, the Trial Court issued summons to the Principal Commissioner of Income Tax-21 to depute an authorised person to produce the documents of Prakash Ahuja and the Respondents. Pursuant to the said order, on 28 February 2019, the Income Tax Department appointed an officer being Income Tax Officer 1(2)(1), who produced the copies of the Income and Wealth Tax Returns of Prakash Ahuja as well as the Respondents and the said documents were filed on record along with the Income Tax Officer s covering letters exhibited as 313, 345, 441 and 442 respectively. By order dated 13 January 2022, the Trial Court passed an order exhibiting the letters at Exh. 345 (Income Tax records of Respondent No. 1), Exh. 441 (Income Tax records of Respondent No.2) and Exh. 442 (Income Tax records of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order dated 13 January 2022, whereby the documents filed below list Exh. 313 were directed not to be exhibited, the Petitioner preferred an application under Exh. 453 dated 4 April 2022 for the following reliefs: a. be pleased to mark the documents under the list at Exhibit 313, in evidence, without the necessary certificate; b. in the alternate to prayer clause (a) herein above, be pleased to call upon the Income Tax Department to provide a proper certificate/letter in support of the Income Tax Records of Prakash Ahuja, on receiving such certificate, mark Exhibit 313 in evidence; and c. any other reliefs this Hon ble Court deems fit and necessary 11. By the said application, the Petitioner submitted that although all efforts had been made to procure the certificate under Section 65-B, the same was not available and therefore, the application was being made. The following facts and circumstances in paragraph 4 of the said application, set out the efforts taken by the Petitioner :- a. The Plaintiff s Advocates had issued a notice dated 31 July 2018 at Exh. 219 calling upon the Defendants to produce the Income Tax Returns of Prakash Ahuja, among ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer; (ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; (iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents ; and (iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. 13. In fact, the Hon ble Supreme Court in the case of Arjun Panditrao Khotkar (supra) in paragraph 51, has clearly held that Section 65-B(4) of the Evidence Act to be mandatory and in paragraph 52 it has held that if a person has done everything possible to obtain the necessary certificate, but has not been able to obtain the same or is refused, then he can make an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. It is important to note that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication under Exh. 453. The Respondents filed a reply to the said application and submitted that the Petitioner was in effect seeking a review of the order dated 13 January 2022 without challenging the same. It was submitted that the Petitioner ought to have challenged the order dated 13 January 2022. It was also submitted that Petitioner never demanded or insisted the issuance of certificate under Section 65-B and has made the said application not only belatedly but as an afterthought to cover up the Petitioner s lapses in the evidence. The Trial Court after considering the application as well as the reply, passed the impugned order dated 30 April 2022 below Exh. 453 rejecting the said application by the Petitioner to call upon the Income Tax department to provide a proper certificate/letter in support of the Income Tax records of Prakash Ahuja holding in paragraph 12 as under:- 12. In the case in hand, though the plaintiff has stated in para 6 of the application that he having done everything to obtain the necessary certificate shall be relieved from such an obligation as the Plaintiff has no control over such a documents but not brought on record any documents that he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner pursuant to the order dated 8 February 2019 produced copies of the Income Tax records of the Respondents as well as Prakash Ahuja but certificates only in respect of the returns of the Respondents were furnished. Therefore, only the letters below Exhs. 345,441 and 442 with respect to the Respondents were exhibited but since documents filed below list Exh. 313 were without the necessary certificate, the same were not exhibited in evidence. Paragraph 14 of the order dated 13 January 2022 quoted above clearly bears this out. 16. The arguments made on behalf of the Respondents that the order dated 13 January 2022 ought to have been challenged or that the challenge to the order dated 30 April 2022 amounts to a review of the order dated 13 January 2022, in my view, is completely misplaced and misconceived as there is no question of review of order dated 13 January 2022; the order dated 13 January 2022 directed list under Exh. 313 not to be exhibited as there was no certificate under Section 65-B whereas the application under Exh. 453 was for a direction to the Income tax Department for the said certificate. What else could the Petitioner have done. The Petitioner had correctl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit Petition is made absolute in terms of prayer clause (a), which reads thus:- (a) this Hon ble Court be pleased to issue a Writ of Certiorari or any appropriate Writ, order of direction under Article 227 of the Constitution of India, calling for the papers and proceedings in Order below Exhibit No. 453 in L.E. Suit No. 71/85 of 2012 filed by the Petitioner before the Hon ble Small Causes Court at Mumbai, and after going through the legality and validity of Order dated April 30, 2022, the same be quashed and set aside; 19. The Hon ble Supreme Court in the case of Arjun Panditrao Khotkar (supra) has clearly observed that when documents from electronic record are produced by authorities and are sought to be used in evidence, in order to ensure the source and authenticity of the said documents, it is not only mandatory to obtain a certificate under Section 65-B (4) of the Indian Evidence Act, but despite efforts if the person seeking such a certificate is unable to do so, he can apply to the Court for its production and the judge conducting the trial must require that such certificate be given. 20. In the facts of this case, the documents filed below list Exh. 313 are p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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