C.P. Srinivas vs Income Tax Officer

Bakthavatsalam, J.—When the miscellaneous petition came up for hearing, by consent of both parties, the main writ petition itself is taken up

for disposal.

The prayer in the writ petition is as follows :

.... to issue a writ of mandamus or any other appropriate writ or order or direction directing the respondent herein to cause the production of the

required documents/records pertaining to Mrs. Padmapriya, the film actress wife of the petitioner herein, and her mother, Mrs. Jayalakshmi

Raghavan, wife of V. Venkataraghavan, residing at No. 15, Moosa Street, T. Nagar, Madras-17 which are kept in the custody of the respondent

herein before the Principal Family Court at Madras forthwith for the purpose of adjudicating the case pending there in Income Tax Application 170

of 1988 in Original Petition No. 1038 of 1988.

Certain proceedings were pending before the family court which were got transferred from the City Civil Court, Madras, under the Hindu

Marriage Act, between the petitioner and the third respondent, who is the wife of the petitioner. In the proceedings before the family court, i.e., the

fourth respondent herein, the petitioner took out a summons to respondents Nos. 1 and 2 to produce certain documents and records pertaining to

the assessment of the third respondent and her mother, one Mrs. Jayalakshmi Raghavan, for the purpose of adjudicating the case pending in

Income Tax Application No. 170 of 1988 in Original Petition No. 1038 of 1988. The Income Tax Department has filed an affidavit before the

family court which is sworn to by the Income Tax Officer, Films Ward-1. The petitioner alleges in the affidavit that the Income Tax Department

ought to have produced the records before the family court stating that the family court has no jurisdiction to issue the summons is not correct and

that the documents are required for the purpose of adjudicating on the interlocutory application in the family court. It is further stated in the affidavit

that the refusal on the part of the first respondent to produce the required documents before the family court would amount to deprivation of

reasonable opportunity to adduce sufficient evidence to prove the case.

The third respondent has filed a counter-affidavit in which it is claimed that she was an Income Tax assessee till the assessment year 1983-84

and that xerox copies of Income Tax orders for 1982-83 and 1983-84 were already filed in this court and in the family court, Madras. It is stated

that she has been suffering at the hands of the petitioner who finds ways and means to protract the proceedings. As such, it is further prayed in the

counter-affidavit that the family court may be directed to give a decision on the main original petition itself as well as in the interlocutory application

for the maintenance of the petitioner.

Mr. Srinivas, the petitioner, appears in person and argues that the documents he requires are all non-classified documents and that the

submission by the Income Tax Department before the family court is not justifiable. He further states that the records are necessary for the purpose

of proving his case and without these records he is placed in a disadvantageous position, when the properties are standing in the name of his

mother-in-law, being the benami of his wife. He states that he requires the assessment records of his wife, who is the third respondent herein, and

his mother-in-law, Jayalakshmi Raghavan, from the year 1972 onwards to be produced before the family court.

Mrs. Nalini Chidambaram, learned counsel appearing for the Income Tax Department, contends that the writ petition is not maintainable and

that the petitioner has to approach the Commissioner of Income Tax u/s 138(1)(b) of the Income Tax Act, 1961. She further argues that, without

exhausting that remedy, this writ petition is not maintainable and has to be dismissed in limine on that short ground. Learned counsel further argues

that the petitioner has to implead his mother-in-law and the non-impleading of this mother-in-law is fatal to the writ petition. She further states that

certain wide allegations are made against the officers which are not warranted.

When a question was put to her with regard to the stand taken by the Department before the family court in the affidavit, she fairly states that it

is filed by the Income Tax Officer and she cannot support the stand taken in the affidavit.

After considering the arguments of Mr. Srinivas, the petitioner who appears in person, and also learned counsel for the respondents, I am of the

view that the writ, as prayed for, cannot be issued. I entirely agree with learned counsel for the Income Tax Department that the petitioner cannot

approach this court without exhausting the remedy u/s 138(1)(b). But, at the same time, I am not able to agree with the stand taken by the Income

Tax Department before the family court that the family court has no jurisdiction to summon the records. Section 10 of the Family Courts Act,

1984, provides for the procedure and sub-section (1) of the section 10 reads as follows :

Procedure generally. - (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908, and of

any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of

Criminal Procedure, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a

civil court and shall have all the powers of such court.

In view of this clear provision in the Act, prima facie, I am of the opinion that the stand taken by the Income Tax Department before the family

court cannot be sustained. At any rate, since the summons has been taken through the family court to the Income Tax Department and the Income

Tax Department has filed an affidavit before the family court, I am of the view that it is for the family court to decide whether the Income Tax

Department is bound to produce the records or not. I am of the view that it is premature to decide this question in this writ petition. It is open to

the parties to argue the issue whether the record summoned by the petitioner has to be produced before the family court or not. In the interests of

justice, I feel that the family court has to decide about this issue first, about the calling for the records before giving any decision in Income Tax

Appeal No. 170 of 1988 in Original Petition No. 1038 of 1988. As such, I direct the fourth respondent herein, Family Court, Madras, to decide

the issue on the basis of the affidavit filed by the Income Tax Department and pass orders within two weeks from the receipt of this order. It is

open to the family court to go into the question about the applicability of section 138(1)(b) while considering the issue on hand. Since the

petitioner''s mother-in-law is not impleaded as a party here, it is open to the petitioner to implead her in the family court. In the same way, in view

of section 13 of the Family Courts Act, I direct the family court to allow counsel for the Income Tax Department to make the submissions on this

issue, after issuing notice. Since I feel that the matter is pending for a long time, even according to the petitioner from the year 1984, the family

court has to take up the matter immediately as stated above and pass orders.

As I have already made it clear, the prayer asked for cannot be granted and instead of that, I direct the fourth respondent, Family Court,

Madras, to pass an order on the request of the petitioner to summon the records from the Income Tax Department before passing any final order

in Income Tax Appeal No. 170 of 1988 in Original Petition No. 1038 of 1988.

The petition is ordered accordingly. No costs.