Income Tax Appellate Tribunal - Nagpur
Buchibai vs Nagpur University. on 24 August, 1945
Equivalent citations: [1947]15ITR150(NAG)
JUDGMENT
Rao Bahadur D. Laxminarayan of Kamptee died on the 30th September, 1930, leaving a will dated the 3rd May, 1930. By that will (Exhibit P-1) he purported to dispose of movable and immovable property, but mainly movable property, which has been valued at about 50 lakhs of rupees. The property described in the schedule annexed to the will is described in the will as his self-acquired with the gains and profits earned by him in mining business during the last 25 years, of which he was the sole and absolute owner. The other property consisted of house property at Nagpur, Kamptee and Secunderabad and malikmakbuza and absolute occupancy fields in mauza Waregaon in the Nagpur district. After providing for certain legacies to his wife and others he left the residue of the estate to the Nagpur University "earmarked for the teaching of applied science and chemistry to the Hindu students domiciled for not less than six years in the Central Provinces and Berar."
Letters of Administration (Exhibit D-4) were granted to the Nagpur University by the Court of the Judicial Commissioner on the 3rd November, 1931.
* * * * The present suit was filed by Buchibai on the 14th September, 1932. She alleged in the plaint that Laxminarayan and Gangadhar Rao took as tenants-in-common, under Kakolams will, property worth more than a lakh of rupees which formed the nucleus of all subsequent acquisitions of which they always remained tenants-in-common. She therefore claimed that R. B. Laxminarayan has thus initially a disposing power only over 25 lakhs [taking the value of the total estate as 50 lakhs], which share had been reduced by the gift of 10 lakhs to Gangadhar Rao on the 2nd November, 1925, and she asked for a decree declaring her entitled to a half share in the estate and directing a partition of it. The defendant, the University of Nagpur, denied that the properties left by Kakolam formed the nucleus of the subsequent acquisitions and contended that the mining business was the exclusive property of R. B. Laxminarayan and that the entire estate was acquired out of the profits of this mining business. In the alternative it contended that, if the properties acquired under Kakolams will did form the nucleus of the subsequent acquisitions, the entire estate was joint family property and on the death of Gangadhar Rao, R. B. Laxminarayan became the sole owner by survivorship. It also contended that the plaintiff was bound by the compromise of the 15th September, 1928, by which she had relinquished all claim to this estate. To that the plaintiff replied that if R. B. Laxminarayan and Gangadhar Rao ever formed a Hindu joint family, they separated in April, 1924, when Gangadhar Rao left Kamptee to live in Bet Narayan, that the compromise of the 15th September, 1928, was ineffective for want of valid registration and that she was not bound by that compromise because her agreement to it had been induced by undue influence and fraud.
The lower Court held that Laxminarayan and Gangadhar Rao formed a Hindu joint family and acquired the estate in dispute as such and that there had been no disruption so that on the death of Gangadhar Rao, R. B. Laxminarayan became the sole owner by survivorship. It also held that the agreement of Buchibai to the compromise of the 15th September, 1928, had not been induced by undue influence or fraud, that it was validly registered, and that it was binding on her. It accordingly dismissed her claim. Against that decision Buchibai has preferred this appeal.
At a late stage of the trial the plaintiff produced certified copies of a statement made by Laxminarayan to the Assistant Commissioner of Income-tax on the 17th August, 1922, and of two orders passed by the Assistant Commissioner on the 23rd March and the 17th August, 1922. These documents have now been numbered as Exhibits A-1, A-2 and A-3. These copies were obtained from the Income-tax Department by R. B. Laxminarayans widow. On the 19th February, 1937, the plaintiff stated that it had very recently come to her knowledge that these documents had been obtained by R. B. Laxminarayans widow and she asked for permission to summon her to produce these documents. These documents were produced on the 8th March, 1937, and were rejected by the lower Court, partly on the ground that they were inadmissible in evidence by virtue of Section 54 of the Income-tax Act and partly because they had been produced at so late a stage. They were produced when 61 out of 63 witnesses for the plaintiff had been examined and after the recording of evidence had been going on for nearly three years. It is conceded that these certified copies were obtained from Laxminarayans widow at the instance of the plaintiff, but that, in our opinion is not necessarily a reason for rejecting the documents. Under sub-section (1) of section 54 of the Income-tax Act all particulars contained in any statement made in the course of proceedings under the Act or in any record of any assessment proceeding shall be treated as confidential, and no Court shall, save as provided in the Act, be entitled to require any public servant to produce before it any such document or to give evidence before it in respect thereof; sub-section (2) provides that any public servant disclosing such particulars shall be punishable. The direction that such document shall be treated as confidential is a direction to officials of the Income-tax Department, and in our opinion it is open to an assessee to waive that right and to give evidence, if the desires, of particulars contained in such a record, as was held in Rama Rao v. Venkataramayya. There is nothing in Section 54 which prohibits the giving of such evidence; the section merely directs officials of the Income-tax Department to treat such documents as confidential and prohibits the Court from requiring public servants to produce such documents or to give evidence about such documents.
It is conceded that the statement made by Laxminarayan before the Assistant Commissioner and the orders of the Assistant Commissioner are all public documents as defined in Section 74 of the Evidence Act. When the original is a public document within the meaning of Section 74 secondary evidence may be given by production of a certified copy of the document in accordance with Section 65 of the Evidence Act. Section 76 of that Act enacts that, "A public officer having the custody of a public document, which any person has right to inspect, shall give that person on demand a copy of it...... together with a certificate........ that it is a true copy of that document........... and such copies so certified shall be called certified copies."
It is not in our opinion necessary that the public generally must have a right to inspect, and it is sufficient if there is any single person who has a right to inspect. As to whether an assessee has a right to inspect the record in his case there has been some difference of opinion. In Anwar Ali v. Tafozal Ahmed, Devidatt v. Shriram Narayandas and Promatha Nath v. Nirode Chandra it has been held that there is no such right. The contrary view has been taken in Rama Rao v. Venkataramayya. At page 301 of the Income-tax Manual, 8th edition, it is stated that an income-tax return is not a "public document" and therefore no one has any right to inspect or to receive a copy of it, but the assessee or any partner in a firm to whose income the return relates or any adult member of a Hindu undivided family to whose income the return relates will, in practice, be allowed to do so. Statements recorded or orders passed by Income-tax Officers are, as we have said, public documents, and there is no express provision in the Manual dealing with the right to inspect or obtain copies of such documents. At page 351 however it is stated that all copies certified to be true copies by officers of Income-tax Department are liable to stamp duty if they are chargeable to court-fee, and there is a provision for charging court fees for copies of orders. In actual practice an assessee is, we understand, allowed to inspect the record of his case, and it might be difficult if not impossible, for him to appeal against such an order if such inspection were not allowed to inspect the record of his case, and it might be difficult if not impossible, for him to appeal against such an order if such inspection were not allowed. We therefore respectfully agree with the decision in Rama Rao v. Venkataramayya that an assessee has a right to inspect statements recorded or orders passed by Income-tax Officers and that certified copies granted by the Department, as here, will therefore be admissible in evidence to prove the contents of those documents. The copies in this case however were obtained not by R. B. Laxminarayan but by his widow after his death, and it has been contended that the University of Nagpur is, by virtue of the grant of the letters of administration, the sole legal representative of R. B. Laxminarayan. In our opinion R. B. Laxminarayans widow is a representative of his estate and was entitled to obtain these copies.
These documents were undoubtedly produced at a very late stage, but we do not consider that that was in itself a sufficient ground for rejecting them, and the order of the learned District Judge was, we think, based mainly on the ground that the documents were inadmissible in evidence by virtue of Section 54 of the Income-tax Act. Their Lordships of the Judicial Committee observed in Gopika Raman v. Atal Singh that leave should not ordinarily be refused where the documents are official records of undoubted authenticity which may assist the Court to decide rightly the issue before it. It has been contended by the learned counsel that the defendant would have been placed in an unfair position if these documents had been admitted in evidence at the stage when they were produced. The defendants case was primarily that the entire estate was Laxminarayans self-acquired property, and alternatively that it was the joint family property of Laxminarayan and Gangadhar Rao. In Exhibit A-2 Laxminarayan is recorded as stating on the 17th August, 1922 :-
"I and my brother Mr. D. G. Gangadhar Rao are separate and our shares are also separate. We do not form a joint Hindu family though we live in one house."
The Assistant Commissioner stated in his order (Exhibit A-1) on the 23rd March, 1922 :-
"Rao Sahib D. Laxminarayan of Kamptee files a return of income for Rs. 51,960-5-5 and declares that his concern is a partnership between himself and his brother D. Gangadhar Rao. He claims that each should be assessed separately...... They mess jointly but it is stated emphatically that they are not a joint Hindu family. They divide shares half and half in the business and each has control over his share of income. They are thus not members of a joint Hindu family. They are merely partners in business. As this is a partnership, I cannot assessee them separately. I would treat this as a unit for assessment purposes according to the present law. Last year they were assessed on an income of Rs. 67,805."
It is clear then that Laxminarayan represented to the Income-tax authorities that he and his brother did not form a Hindu joint family and that each had a half share in the business. These statements have been put in to rebut the defendants contention that the estate was Laxminarayans alone or that it was a joint family estate. The defendant knew the case it had to meet, and the case would in no way be changed by the admission of these documents. It has been suggested that some of the witnesses who have given evidence for the plaintiff might have been further cross-examined if these documents had been on the record. We do not think that any further cross-examination would have helped the defendants case for all that these witnesses said on the point was that to all appearance the two brothers seemed to be living as a joint family and to be equal owners of the business. In our opinion therefore these documents should be admitted in evidence. * * * [The remaining portion of the judgment is not material for the purposes of this report. - Ed.]