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Judgment
Moushumi Bhattacharya, J
The Court : The defendants have made an application for issuing of a subpoena upon the Principal Chief Commissioner, Service Tax-I, Kolkata Commissionerate, Range-XVIII, for producing before this Court through its competent officer the original and/or authenticated copy of Form ST-3 for the financial year 2012-2013 and particularly for the period October, 2012 to March 2013 as filed by the plaintiff.
The plaintiff has filed this suit against the defendants for a decree of Rs.9,42,59,029.28 p and consequential interest on the said amount. The basis for claiming the decree is 56 and odd unpaid bills which the plaintiff raised upon the defendant no.1 for services rendered by the plaintiff in relation to logistics and transportation services. This application has been filed at the stage of examination-in-chief of the defendant's witness in commission.
The case of the defendants is that the majority of the bills which the plaintiff claims to be due and payable are either fictitious or have already been cleared twice over. According to the defendants, the plaintiff has received excess amount over and above the agreed sum payable to the plaintiff. The defendants have filed a counter claim for such amounts in the present suit. The specific case made out in the application is that the plaintiff being a service provider, is liable to deposit service tax before the concerned authority before it can claim reimbursement of such amount from the defendants to whom such services were provided.
Learned Senior Counsel appearing for the defendants submits that the plaintiff has claimed amounts on account of service tax but has not produced any document in support of the same. The counsel places Question nos. 662 and 702 in the cross-examination of the plaintiff's witness which show that the witness has specifically deposed to the effect that the plaintiff has filed return of service tax for the financial year 2012-2013 and that the plaintiff was ready to produce documents corroborating such evidence. In answer to Q. 708, witness has also deposed that he is in a position to disclose the service tax return for the financial year 2012-2013. Counsel further places Q. 714 in which the plaintiff's witness has reiterated that no document has been submitted which would show that the plaintiff has deposited service tax to the account of the defendant no.1. In re-examination, Exhibit-UU, a part of an additional disclosure, has been referred to which is the acknowledgement receipt for the financial year 2012-2013 April to June. Counsel submits that the plaintiff's witness has relied upon three documents to show that the plaintiff has paid service tax return for April to June, July to September and October to March for the financial year 2012-2013. Counsel places this document and questions whether this document at all corroborates the evidence taken, namely that the plaintiff has deposited service tax specifically to the account of the defendant no.1 in relation to the transaction for the financial year 2012-2013.
Learned counsel for the plaintiff opposes the application on the ground of absence of any pleading in the written statement or the counter-claim calling for the document, namely, Form ST-3 for the financial year 2012-2013 and for the period indicated in the Master's Summons. The sole argument of counsel is that the issue relating to Service Tax is neither mentioned in any of the pleadings nor in the issues framed and is also not part of the relief claimed in the counter claim. Counsel relies on two decisions in support of the argument that pleadings must form the basis of relief claimed by a party to a suit. The first is Union of India -vs- Ibrahim Uddin And Another reported in (2012) 8 Supreme Court Cases 148 where the Supreme Court held that no evidence is permitted to be taken on record in the absence of pleadings. The next decision is Ratanlal Alias Babulal Chunilal Samsuka -vs- Sundarabai Govardhandas Samsuka reported in (2018) 11 Supreme Court Cases 119 which reiterated the same position, namely, that evidence or proof adduced without proper pleadings is of no consequence and will not come to the rescue of the parties.
I have heard learned counsel for the parties and considered the evidence of the witness of the plaintiff which has been brought to the notice of this Court. The question which falls for consideration is whether the statutory authority, namely, the Principal Chief Commissioner, Service Tax can be called upon to produce a document which would throw light on the issue whether the plaintiff has deposited service tax for the specific period which the plaintiff's witness has referred to in his evidence. For considering whether such a direction can be made, certain relevant issues are required to be stated.
The plaintiff has claimed Rs.9 crores and odd from the defendants on account of unpaid bills for services rendered. Exhibit-G, which are the bills in question, forms the basis of the amounts claimed. On perusal of these bills it is evident that each of the bills contains a component of service tax and mentions the service tax registration number, services tax range and division etc. of the plaintiff. The bills therefore clearly indicate the statutory obligation of the plaintiff as a service provider to deposit service tax on the transactions which form the subject matter of the suit and in relation to which the plaintiff has claimed the decretal amount. In addition to the bills, the written statement filed by the defendants has several references to the service tax component of the amounts raised by the plaintiff on the defendants towards cost of transportation. Third, the acknowledgement receipt which forms Exhibit-UU of the additional disclosure as referred to by the plaintiff's witness in Q. 730-732 does not indicate whether the plaintiff has deposited service tax specifically in relation to the transactions forming the subject matter of the suit. The document merely provides details of the name of the assessee (the plaintiff) and states that the concerned file of the plaintiff has been successfully uploaded and that the status of such file can be viewed on the particular website.
Order XVI Rule 6 of The Code of Civil Procedure, 1908 provides that any person may be summoned to produce a document without being summoned to give evidence. Section 162 of The Evidence Act, 1872 provides that a witness summoned to produce a document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection to its production or its admissibility. These provisions show that the Court has the power to call for production of documents for complete adjudication of the issues involved in a suit. The aforesaid sections further indicate that if a Court is of the view that a document is required to be produced, the party in question will not have any option to oppose the same.
The primary question is whether the plaintiff will suffer or is likely to suffer any prejudice, if production of the document is called for. The view of this Court to that question is clearly in the negative. It is nobody's case that the document, if produced, would establish that no service tax amounts have been deposited by the plaintiff to the account of the defendants. On the contrary, the document is necessary to prove and/or corroborate the evidence of the plaintiff's witness that service tax has been deposited by the plaintiff on the defendant's account but no document has been submitted from which this would be evident. Q. 668, 708 and 714 are reproduced below :
"Q.668. I am further putting it to you that the suit is bad for mis-joinder of parties?/ I do not agree.
Q.708. From these consignment notes can you tell this Hon'ble Court about the respected dates of delivery of the consignment notes?/ Yes.
Q.714. I am asking you once again, have you submitted any document wherefrom it will be evident that you have deposited service tax to the accounts of the defendant No.1?/ No."
It would be evident from the above that it was the specific case of the plaintiff's witness that the plaintiff has filed its return of service tax for the Financial Year 2012 - 2013 and that no corroborative documents have been disclosed but that the plaintiff is ready to produce the same. The evidence, therefore, leads this Court to presume that there may be documents which would lend credence to the plaintiff's case that the plaintiff has indeed deposited service tax to the account of the defendants in relation to the transactions forming the subject matter of the suit. Hence, the resistance of the plaintiff to the present application is quite confounding as the document may actually come to the aid of the plaintiff in proving its case. After all the plaintiff must prove the amounts claimed in the suit. The decisions shown in support of the contention that evidence must be taken on the basis of pleadings and not otherwise lays down a proposition of law which cannot be called to question. The position in this case would have been different if the defendants had called for the document without the plaintiff's witness deposing either to service tax or any deposit made in relation to such. The plaintiff's witness has not only made specific statements in relation to deposit of service tax but also offered to produce the documents in question (refer Q.663). The most important issue is that the bills, forming part of Exhibit-G, disclose a clear component relating to service tax. These bills admittedly form the basis of the plaintiff's claim in the suit.
In view of the above reasons, GA No. 1920 of 2019 is allowed.
A subpoena is directed to be issued upon the Principal Chief Commissioner, Service Tax - I, Kolkata Commissionerate, Range-XVIII for production of the original or authenticated copy of Form ST-3 for the Financial Year 2012 - 2013 for the period of October, 2012 - March, 2013 as filed by Crown Transport Private Limited having service tax no.AABCC3754HSD001.
The concerned department will communicate this order to the Principal Chief Commissioner, Service Tax - I and the documents called for shall be produced through the Principal Chief Commissioner or through his competent Officer at 10.30 a.m. on 3rd January, 2020.
Counsel appearing for the parties will be at liberty to adduce evidence on these documents on that date.