Agricultural Income Tax Officer, Tiruchy vs Ramasamy Reddiar and 4 others

Somasundaram, J.—The petitioner in the Civil Revision Petition is a third party in the suit O.S. No. 53 of 1987 on the file of the District

Munsifs Court at Karur. This Civil Revision Petition is directed against the order dated 7.1.1991 made in I.A. No. 1077 of 1990 in O.S. No. 53

of 1987 directing the petitioner to produce the assessment records under S.52(4) of the Tamil Nadu Agricultural income tax Act 1955 (hereinafter

referred to as the Act). The respondents 1 and 2 filed the said suit O.S. No. 53 of 1987 against respondents 3 to 5 claiming the following reliefs:-

(a) Declaring rights, title and interests of the plaintiff''s to the suit A and B Schedule properties and consequent thereon granting permanent

injunction restraining the defendants, their men and servants in any manner from interfering with the plaintiff''s possession and enjoyment of the suit

properties (aa) if the defendants are found to be in possession of any portion of the-suit properties by this Hon''ble Court that the defendants to

surrender peaceful possession of the suit properties to the plaintiff.

(b) award costs of the above suit:

and

(c) grant such other reliefs as the Hon''ble Court deemed fit and proper under the circumstances of the above suit and render justice.

The case of the respondents 1 and 2 in the above suit is that there was a family partition between respondents 1 and 3 who are brothers and

respondents 1 and 2 based their case on the said family partition. To substantiate the case of respondents 1 and 2 that there was a family partition,

they took out summons to the petitioner to produce before the Court below the assessment records relating to the assessment years 1988-89,

1989-90 and 1990-91. The petitioner did not respond to the summons issued by the Court below which resulted in the respondents 1 and 2 filing

of the Petition I.A. No. 1077 of 1990 seeking the arrest of the petitioner for disobedience of the order of the Court below to produce the

assessment records. The petitioner herein resisted the application I.A. No. 1077 of 1990 contending that as per S.52 of the Act all the records

pertaining the agricultural income tax assessment cannot be directed to be produced into court, that all the records of the assessment files shall be

treated as confidential and that notwithstanding anything contained in the Indian Evidence Act, the Court below cannot require the petitioner to

produce before it the documents or records relating to the assessment. The specific plea of the petitioner in the counter is that in respect of the

properties held by the parties for the period in question viz, faslis 1397 to 1390 assessments were made under S.65-A of the Act and not under

S.29 of the Act, and therefore, the provision contained in Sub Section (4) of S.52 of the Act will not apply to the case of the respondents.

However, the Court below by the order dated 7.1.1991 directed the petitioner to produce the documents of assessments holding that the immunity

under S.52 (1) was not available to the petitioner as the assessments were made under S.29 of the Act

Mrs. Chitra Venkataraman, learned Additional Government Pleader (Taxes) relying on the decision of this Court in C.R.P. No. 5280 of 1983

contended that the documents filed by the assessee cannot be directed to be produced into court except under the circumstances mentioned in Sub

Section (4) of S.52 of the Act and that there is nothing in this case to show that the assessment was made under S.29 of the Act attracting the

provision contained in Sub Section (4) of S.52 of the Act. There is substance in the contention of the learned Additional Government Pleader. In

State of Tamil Nadu rep. by the Agricultural Income Tax Officer Tiruchy vs. S.N. Thirugnanam and another (C.R.P. No. 5280 of 1983), this

court, while interpreting the scope of S.52 of the Agricultural income tax Act, after referring to the decisions of Supreme Court in Charu Chandra

Kundu Vs. Gurupada Ghosh, and Commissioner of Income Tax, Bombay Vs. Laxmichand Narayandas and Another, , held as follows:-

The views expressed in the above decisions cited by the learned counsel for the respondents that the privilege contemplated is that of the assessee

and the assessee or his legal representatives can waive the same and that the documents relating to the assessment are public documents to which

the assessee or his legal representatives are entitled to copies, had been negative by the Supreme Court in the two subsequent decisions referred to

above. The views expressed by the Supreme Court in Charu Chandra Kundu Vs. Gurupada Ghosh, and in Commissioner of Income Tax,

Bombay Vs. Laxmichand Narayandas and Another, , though rendered under S.54 of the Indian Income Tax Act, are applicable to the facts of this

case since S.52 of the Agricultural Income Tax Act is similar to S.54 of the Indian Income Tax Act.

In view of the two subsequent Supreme Court decisions mentioned above the principle expressed in the decision reported in Kadepkutty vs.

Agricultural I.T. Officer (AIR 1962 Ker 32) the Full Bench decision reported in Katikinet Venkata Gopala Narasimha Rama Rao v. Chitulri

Venkataramayya ( (1940 ILR Mad 969 = 52 L.W.159, F.B.) and the decisions reported in Munryammai v. the Third Additional Income Tax

Officer (ILR 1960 Mad 612=(1960) 2 MLJ 96=73 L.W.291) cannot hold the field. Therefore the documents pertaining to Agricultural Income

Tax Assessment cannot be directed to be produced into court.

The ratio of the decision of this Court C.R.P. No. 5280 of 1983 is directly applicable to the facts of the present case. No doubt S.52(4) of the

Act says that nothing in S.52 of the Act shall apply to the production by a public servant before a court of any document, declaration or affidavit

filed or the record of any statement or deposition made in a proceeding under S.29 of the Act or to the giving of evidence by a public servant in

respect thereof, But, there is nothing in this case to show that the proceedings under the Act were initiated under S.29 of the Act and the

assessment order was passed under that Section. Respondents 1 and 2 have not produced any material to show that the assessment in their case

was made under S.29 of the Act. They have neither produced the copy of the application filed under S.29 of the Act nor the assessment orders for

the period in question. In these circumstances, the Court below is not justified in taking the view that S.52(4) of the Act will apply to the facts of

the present case, and therefore, the petitioner is bound to produce the assessment orders before the Court. The reasons given by the Court below

for coming to the conclusion that S.29 of the Act will apply to the facts of the case are clearly erroneous. On the facts and circumstances of the

case, the case of the petitioner that the assessments were made under S.65-A of the Act has to be accepted in which case, the records pertaining

to agricultural income tax assessment cannot be directed to be produced into court in view of S.52 of the Act. For all the reasons stated above, it

has to he held that the order of the Court below directing the petitioner to produce the assessment records before it is clearly erroneous and it is

liable to be set aside. Accordingly, the Civil Revision Petition is allowed and the order of the Court below is set aside. However, there will be no

order as to costs.