Puthiya Maliyakkal Syed Alavi Jifri Thangal vs Commissioner of Income Tax and Others

P.K. Balasubramanyan, J.—The petitioner has approached this court praying that the order exhibit P-4 passed by the first respondent refusing his request for issue of a certified copy of the combined order in Income Tax Appeals Nos. 47, 56 and 35/CI CIT, passed against his brother, respondent No. 4 herein, may be quashed. There is also a prayer for a direction to the first respondent to receive exhibit P-9 request made by him and to direct the first respondent to dispose of that application in accordance with law and in the light of exhibit P-8 issued to him by the Commissioner of Income Tax, respondent No. 2 herein.

The petitioner and respondent No. 4 are brothers. On January 7, 1965, there was an agreement between the brothers regarding the management of certain properties. There was a modified agreement dated October 30, 1986, which is marked as exhibit P-1 by which respondent No. 4 was put in possession of the properties. The properties were left in common and there is a dispute between the parties as to whether a wakf has come into existence in respect of their properties. It is the case of the petitioner that respondent No. 4 has violated the terms of the agreement and it has therefore become necessary to keep him out of the property and the income. The petitioner has filed 0. S. No. 91 of 1991 on the file of the Subordinate Judge''s Court of Tirur against respondent No. 4 seeking to restrain him by a permanent injunction from interfering with the management of what is called the wakf mambram. The defence of respondent No. 4 in the suit is that he has not violated the terms of exhibit P-1 and that the petitioner is not entitled to any injunction in that suit. In an effort to substantiate the case of the petitioner that respondent No. 4 has misused the funds of the mambram, the petitioner filed an application I. A. No. 799 of 1992 praying for a direction to the tconcerned officials of the Income Tax Department o produce the documents relating to the statements made by respondent No. 4 and the appeal filed by him before the Department. That application was dismissed by the court which observed that it was for the petitioner to move the Income Tax Department for the necessary documents. The petitioner, accordingly, made an application, exhibit P-3, before the first respondent who rejected the same by the order, exhibit P-4 on the ground that the request cannot be acceded to in view of the restrictions imposed on disclosure of information respecting Income Tax assessees u/s 138 of the Income Tax Act. The petitioner thereafter made an application, exhibit P-5, before the third respondent who also rejected the request stating that, in view of Section 138(1)(b), the request cannot be acceded to and the application as regards the paper book filed by respondent No. 4 before the Commissioner of Income Tax (Appeals) forms part of the appeal records and was not available in the third respondent''s office. Thereupon, the petitioner moved the second respondent, Commissioner of Income Tax by exhibit P-7 and, by exhibit P-8, the Commissioner of Income Tax informed the petitioner that his request cannot be granted and that the petitioner could contact the first respondent appellate authority for a copy of the appellate order which also he had sought. It was also observed that, in case the petitioner was a trustee of the properties, he may request for a copy of the appellate order. It is thereafter that the petitioner made the application, exhibit P-9, before the first respondent and the said application, according to the petitioner, remains undisposed of.

Meanwhile, the petitioner had made an application I. A. No. 419 of 1993 before the Subordinate Judge''s Court, Tirur, praying for summoning the Assistant Commissioner of Income Tax to produce the relevant documents. By the order, exhibit P-10, dated March 23, 1993, the Subordinate Judge''s Court, Tirur, rejected that application, inter alia, on the ground that the documents sought for were not necessary for the purpose of the suit. That court relied upon the observations of this court in an earlier Revision, C. R. P. No. 131 of 1993, which the petitioner filed against the order in I. A. No. 800 of 1992 whereby he had sought to serve certain interrogatories on respondent No. 4 concerning these aspects and these documents. The trial court had found that the petitioner was not entitled to serve such interrogatories on respondent No. 4 and it is that order which was confirmed in C. R. P. No. 131 of 1993 on a finding that it was difficult to hold that the interrogatories that were sought to be served were relevant for the proper disposal of the suit. Against the order, exhibit P-10, the petitioner filed C. R. P. No. 583 of 1993 before this court. By exhibit R-4(g) order dated March 31, 1993, this court dismissed the revision observing that the petitioner was entitled to summon only those records which were relevant to the case and not any and every record that respondent No. 4 had submitted to the Income Tax Department. This court also observed that it was not clear how the documents could help the petitioner to sustain his case in the plaint. Thus this court endorsed the views of the trial court that the documents sought to be summoned by the petitioner were not necessary for a proper disposal of the suit.

The petitioner filed this original petition on May 7, 1993, praying for quashing the order, exhibit P-4, dated December 14, 1992, and praying further that there may be a direction to entertain his application, exhibit P-9, dated February 26, 1993. The prayers in this original petition are objected to by respondent No. 4 by contending that these documents of which copies are sought by the petitioner are unnecessary for the purpose of the present litigation between the parties and that the petitioner cannot, by approaching this court, get rid of the earlier final orders passed by this court in the matter of permission to serve interrogatories and in the matter of summoning the documents. It is also contended that Section 138 of the Income Tax Act does not enable the petitioner to get these documents which related to the assessment against the fourth respondent and the stand he had taken therein. It is specifically pointed out that exhibit R-4(c), a judgment in an earlier suit, O. S. No. 24 of 1962, had clearly found that there was no wakf as contended by the petitioner. As noticed by me, it is not necessary or proper for this court to consider the question as to whether the wakf has come into being or not. It is submitted on behalf of respondent No. 4 that, in terms of exhibit P-1 agreement, respondent No. 4 was entitled to be in management till death and it is only thereafter that the petitioner has got the right to manage the properties, if he were alive on that day.

Sri N.R.K. Nair, appearing on behalf of respondents Nos. 1 to 3, has contended that, in the light of Section 138(1)(b) of the Income Tax Act, it is not permissible for the Department to make available the records sought for by the petitioner.

In exhibit P-9, the petitioner has prayed for the issuance of a certified copy of the order of the Commissioner of Income Tax (Appeals) in respect of the assessments made against respondent No. 4 for the assessment years 1986-87 to 1988-89. The first respondent has not considered this application.

The position in law on the scope of Section 138(1)(b) of the Income Tax Act has been recently clarified by the Supreme Court in the decision in M/s. Dagi Ram Pindi Lall and another Vs. Trilok Chand Jain and others, . Though that case essentially related to the power of the court to summon the documents filed by an assesses before the Income Tax authorities and the difference between the position prior to April 1, 1964, and that subsequent to April 1, 1964, the said decision has also discussed the question of privilege in respect of such documents. Speaking on the scope of Section 138(1)(b) of the Act, the Supreme Court has observed thus (at page 240) :

"Clause (b) of Sub-section (1) of Section 138 is limited in its scope and application. Under it, any person can make an application to the Commissioner for any information relating to an assessee in respect of any assessment made either under the 1922 Act or under the 1961 Act on or after April 1, 1960, and the Commissioner of Income Tax has the authority to furnish or cause to be furnished the information asked for on being satisfied that it is in the public interest so to do and such an order of the Commissioner is final and cannot be called in question in any court of law. The Commissioner of Income Tax under this clause performs only an administrative function, on his subjective satisfaction as to whether it is in the public interest to furnish the information or not to any person seeking such information and his decision in that behalf is final and the aggrieved person cannot question it in a court of law."

In disposing of exhibit P-3 application by the order, exhibit P-4, the first respondent has not entered any finding as regards the reason for the �rejection of the application. The order, exhibit P-4, proceeds on the basis that by virtue of the restrictions imposed by Section 138, the request of the petitioner cannot be acceded to. As has been held by this court in the decision in N.J. Jose Vs. Thavarakkattil Chandri and Others, , the rejection will have to be supported by reasons to justify that public interest demanded the rejection of the request. It is to be noticed that the petitioner has a case that he is equally interested in the properties of what he calls the wakf and which, according to respondent No. 4, is property left in common. In either case, the petitioner has part ownership in the property left in common and the petitioner is seeking information in respect of an assessment against respondent No. 4 in which, according to the petitioner, the income from this common property had been excluded on the ground that they are wakf properties. It is also therefore necessary for the first respondent to consider whether the petitioner would be entitled to obtain a copy of the order of the first respondent in appeal. Since in the suit it has been found that the documents sought to be summoned by the petitioner are not necessary for the purpose of that suit, it is not now open to the petitioner to urge before the first respondent that the documents sought for by him are necessary for the purpose of that suit. At the same time, the question whether he is entitled to a copy of the judgment in the Income Tax appeals relating to the assessment years 1986-87 to 1988-89 in respect of the assessments made against respondent No. 4 is a matter which has to be considered by the first respondent.

In view of what is stated above, I quash the order, exhibit P-4, only in so far as it relates to the application of the petitioner for copies of the appellate orders in Income Tax Appeals Nos. 47, 36 and 35/C I CIT/91-92 dated March 31, 1992, and direct the first respondent to consider and dispose of exhibit P-9 application in so far as it relates to the copies of the said orders in accordance with law and in the light of the relevant provisions of the Act after giving the petitioner an opportunity of being heard. In the light of the prior orders of the court in the civil suit, it is made clear that the reconsideration directed relates only to the question of the issue of the copies of the orders in Income Tax Appeals Nos. 47, 36 and 35/C I CIT 1991-92 dated March 31, 1992, and does not relate to any other document.

The original petition is allowed to this extent. There will be no order as to costs.