Mihir Kumar Sarkar vs Income Tax Officer

Ghose, J.—This is an application for the issue of a writ or writs in the nature of mandamus commanding the Respondents to forthwith issue certified copy of the order dated February 4, 1952, contained in the assessment file of 1950-51 in the name of the Assessee Bidhu Bhusan Sarkar, deceased, being file No. 456-b/A. The facts leading to this application are set out hereunder:

The Petitioner is one of the sons and successors-in-interest of Bidhu Bhusan Sarkar, deceased, hereinafter referred to as the ''Assessee''. Since January 16, 1949, the 8th Additional income tax Officer, District 1(2), Calcutta, was the income tax Officer of the Assessee. Voluntary Return of loss of the Assessee relating to 1947-48 assessment year was filed by the Assessee. The said file was numbered as 456-b/A in the section of the said officer. On February 23, 1950, the said officer issued a notice u/s 34 of the income tax Act, 1922, for a fresh return for the said assessment year 1947-48 by the Assessee. The principal" income tax Officer of District 1(2), Calcutta, completed assessment for the year 1947-48 of the Assessee. On appeal, the said assessment was set aside on December 27, 1955. On December 30, 1955, the jurisdiction to assess the Assessee was transferred to the said principal income tax Officer, u/s 5(7A) of the said Act. Fresh notice u/s 34 for submission of the fresh return for the assessment year 194748 was issued by the said officer. The said officer completed fresh assessment for the said 1947-48 assessment year on May 2, 1956, as a result whereof income tax demand of about Rs. 14 lacs was levied upon the said Assessee.

The said assessment was challenged in appeal before Appellate Assistant Commissioner, income tax, on the ground that the proceeding u/s 34 started by the Additional income tax Officer, District 1(2), was not terminated or become barred by limitation. On February 11, 1956, those proceedings were alive and available. Therefore, the proceedings started by the principal income tax Officer were illegal. Thereupon, the Appellate Assistant Commissioner annulled the said assessment.

From the said order the income tax authorities appealed before the income tax Tribunal, whereupon the Tribunal found in the order-sheet of the Additional income tax Officer concerning the said assessment year an order to the following effect:

Mr. Kalipada Bose, constituted Attorney, appears and submits that the old Return already submitted may be treated to be submitted in response to notice u/s 34(1)(a). The '', income should be taken in the assessment of the Military contract income for which there is another file. The case is, therefore, filed.

The Tribunal found that the said proceedings initiated u/s 34 by the Additional income tax Officer had been terminated and consequently the proceedings u/s 34 commenced by the principal income tax Officer was lawful. When the matter came up before the High Court, the order of the Tribunal was set aside on the ground that the Additional income tax Officer could not terminate the proceeding except by completing assessment.

Thereafter, the matter went up. before the Supreme Court and the appeal of the Commissioner of income tax. was allowed on the ground that the aforesaid order made by the Additional income tax Officer entitled the principal income tax Officer to commence fresh proceedings u/s 34. On February 11, 1956, Petitioner filed an application for review of the said judgment before the Supreme Court.

The pleader of the Petitioner had stated that the additional income tax Officer passed an order for amalgamation of the Assessee''s file before him with the Assessee''s file before the principal income tax Officer. The principal income tax Officer made his assessment on January 31, 1953. Thereupon the Petitioner applied for a certified copy of the said order of amalgamation; Copy of the said order was not supplied on the ground that no such order could be traced in the file. The income tax Officer, B Ward, who had jurisdiction at all material times in the matter searched for the order concerned when the income tax lawyer of the Petitioner found in the said file an order dated February 4, 1952, recommending amalgamation of the file before him with the other file before the principal income tax Officer. Thereupon the Petitioner''s lawyer asked for a certified copy of the said order of the assessment year 1950-51 instead of-assessment year 1947-48 and amended the application in his own hand. Notwithstanding demand the certified copy of the said order was not given by the Respondent to the Petitioner. The Petitioner demanded justice and has done all that is required by law to be done for obtaining certified copy of the said order.

Mr. Anil Chandra Mitra appearing on behalf of the Petitioner contended that the said Additional income tax Officer or the principal income tax Officer is a public officer within the meaning of the income tax Act and relied on Section 2(17)(h) of the Code of Civil Procedure, Section 21 of the Indian Penal Code and Section 2(13) of the income tax Act of 1922 corresponding to Section 2(37) of the income tax Act, 1961, Consequently, Mr. Mitra contended that the said document wherein the order of the said income tax Officer had been written and signed was an order-sheet of the income tax Officer and hence is a public document. Mr, Mitra relied on RAMA RAO Vs. VENKATARAMAYYA., .

Mr. Mitra also relied on Nand Kumar Sinha Vs. Emperor, and also on Buchibai v. Nagpur University wherein it was held that a widow is a representative of the Assessee and is entitled to get a certified copy of the assessment order. Mr. Mitra further relied on P. Kandiah Thevar Vs. Third Income Tax Officer and Another, Ve. Vs. Sivagami Achi v. Vr. Ve. Vr. Ramanathan Chettiar And Others., and Amalgamated Commercial Traders Private Ltd. v. A. C. K. Krishnaswami (1968) 69 ITR 34. Mr. Mitra also relied on para. 4 of the petition.

Mr. Gupta appearing on behalf of the Respondents relied on para. 1 of the petition and submitted that the Petitioner does not represent the estate of the Assessee wholly. Mr. Gupta contends further that no proper application was made for the issue of the certified copy of the said order and, as such, the Applicant was not entitled to get a certified copy of the order. Mr. Gupta submits that there was no proper application for any order passed in the proceedings for the assessment year 1950-51. Review application mentioned above was moved and dismissed by the Supreme Court. Therefore, it is not necessary any more to get the certified copy of the order.

It is apparent from Section 2(17)(h) of the Code of Civil Procedure, Section 21 of the Indian Penal Code and Section 2(13) of the income tax Act, 1922, corresponding to Section 2(37) of the income tax Act, 1961, that the income tax Officer is a public officer. Therefore, according to Mr. Mitra the documents forming the acts or records of the acts of any public officer including an income tax Officer are public documents within the meaning of Section 74 of the Indian Evidence Act. In the premises certified copies of the said documents may be obtained.

In RAMA RAO Vs. VENKATARAMAYYA., it was held that although u/s 54 of the income tax Act, 1922, corresponding to Section 137 of the income tax Act, 1961, no Court could require any public servant to produce before it any document, return or other documents mentioned in the said section or to give evidence before the Court in respect of any of the said documents and although no public servant was obliged to disclose any particulars contained in any of the documents mentioned in. the said section, the contents of such documents if produced before the Court and otherwise admissible, were admissible in evidence. It was held in that case that ah Income.-tax Officer is a public servant. It was further held in the said Full Bench case of the Madras High Court that statements on oath, acts and orders passed by the income tax authorities and other documents on the record and proceedings under the income tax Act, are public documents as contemplated by Section 74 of the Indian Evidence Act. It was also held in PENTAPATHI VENKATRAMANA AND OTHERS Vs. PENTAPATHI VARAHALU AND OTHERS., and Additional Income Tax Officer Vs. Golla Narayanamma and Others, that certified copies of such documents are admissible in evidence.;

It has further been held by the said Full Bench case of Rama Rao v. Venkataramayya (Supra) that even a Return of income filed by an Assessee or any document prepared under the direction of the Assessee and filed with the income tax Officer is a public document and certified copy of it may be produced in evidence. The Courts in Buchibai v. Nagpur University (Supra); P. Kandiah Thevar v. Third income tax Officer, Tirunelveli (Supra); Inter-Asian Footwear Corporation v. Appellate Assistant Commissioner, Agra (Supra) and Amalgamated Commercial Traders Private Ltd. v. A. C K. Krishna-swami (Supra) came to the same conclusion.

In the case of Ratanlal v. income tax Officer, D Ward, income tax, District I, Calcutta, Binayak Nath Banerjee J. was pleased to hold that proceedings before the income tax Officer were judicial proceedings and the records of the judicial proceedings were public documents. It was further held by his Lordship that an Assessee was entitled as a matter of right to have the certified copies of records of his assessment proceedings. The said judgment is binding upon me and I hold that the said order contained in order-sheet before the Additional income tax Officer or the principal income tax Officer is in the instant case a public document. It follows, therefore, that Bidhu Bhusan Sarkar, if he were alive, would have been entitled to get a certified copy of the said order.

If the Assessee was entitled to a certified copy of the order his heirs and legal representatives are entitled to get a certified copy of the order of assessment concerning their predecessor''s estate. One of the legal representatives would also be entitled to the same because the deceased''s estate in his hand would be liable for income tax debt due by the deceased. In the premises I am of the view that the Petitioner in the instant case is entitled to the said order.

It appears to me, however, from an affidavit affirmed on January 16, 1967, and filed in opposition to the present petition, that the original application for the issue of certified copy of the order was of an order passed in respect of proceeding for the assessment year 1947-48 although the said order was passed in the proceeding for the year 1950-51. When the said application was amended, the assessment year, in respect whereof the said order was passed was not put in legibly. Thus there was no proper application for a certified copy of the said order made in the proceedings for the year 1950-51 before the income tax Officer.

In the result, this application must fail and is dismissed. Rule is discharged. The Petitioner will be at liberty to make a proper application for the order and the Respondents shall consider the same.

In the facts and circumstances of the case, I make no order as to costs.