On 9-6-1967, Haji Muhammad Din, a businessman of Peshawar Cantonment, instituted this suit against Wing Commander Munir-ud-Din, also of the Peshawar Cantonment, for the recovery of Rs, 22,912. The suit was instituted in forma pauperis. The defendant contested the right of the plaintiff to sue as pauper, but the learned Civil Judge, who was seized of the case, by his order dated 10-11- 1967, permitted the plaintiff to sue as pauper.
2. On 22-2-1968, the defendant submitted an application to the Court under Order XXXIII, rule 9 to the effect that the plaintiff be dispaupered. The plaintiff contested this application and the learned Civil Judge thereupon framed the following two issues:-- (1)Whether plaintiff is not a pauper ?
(2)In case issue No, 1 is proved, whether plaintiff is liable to be dispaupered?
3. To prove his contention the defendant applied to the Court for summoning a clerk of the Income-tax Department along with the income-tax assessment record of the plaintiff. The Civil Judge thereupon issued a process to the Income-tax Officer, 'B' Circle, Peshawar for producing the record of the income-tax assessm ent of the plaintiff. The Income-tax Officer by his letter dated 6- 11-68, addressed to the Civil Judge claimed exemption under section 54 of the Income-tax Act, but the letter was returned in original by the Civil Judge with the following remarks:-- Returned with the remarks that this Court has full powers to summon any evidence required in any case and you are, therefore, being requested to produce the relevant record. Please carry out the orders or else send your definite refusal so that I may proceed accordingly. This may be done today."
4. In view of the above remarks of the learned Civil Judge the Record Keeper of the office of the Income-tax Officer appeared in Court on 4-6-69, with the relevant record in a sealed cover. The Court put the following question to the witness :- "Whether Haji Muhammad Din was assessed to income-tax for the assessment year 1967-68 corresponding to the financial year 1966-67?"
The Record Keeper gave the following reply : "I have brought a sealed file but under the instructions of the Income-tax Commissioner, Rawalpindi Zone, Rawalpindi I am unable to depose to this question."
The learned Civil Judge thereupon the same day, that is to say, on 4-6-69, passed the following order: "The witness R. W. 5 has been asked a question if the plaintiff has been assessed to income-tax for the financial year 1966-67. The witness has said that under the instructions of Income-tax Commissioner, Rawalpindi Zone, Rawalpindi he is unable to depose to this question. The Income- tax office has claimed exemption under section 54 (3), clause (m) of the Income-tax Act. But this article of law gives authority to ask the present question and the Income-tax office cannot claim any exemption under this provision of law. The witness is, therefore, directed to convey this order to the said officer and he should come prepared to reply to this question on 7-7-1969, the date on which this case shall come up before this Court. A copy of this order is to be supplied to the witness free of any cost."
5. On 13-6-1970, when the case again came up for hearing before the learned Civil Judge, exemption for the production of the record was again claimed by the Department through a review of the aforesaid order of the learned Civil Judge. The learned Civil Judge, however, the same day passed the following order.
"Counsel for the parties present. No one on behalf of Tax Department. Exemption claimed by the Income-tax Depart-ment to answer a question as to whether the plaintiff was assessed to the income-tax for 1966-67 was refused by my learned brother vide his order dated 4-6-69. It was harped again by the Department that the order be reviewed. Under clause (m) of section 54 of the Income-tax Act prevented (sic). Not the Courts to enquire about the assessment matter, returns and statements were not required which attracted the word confidential as envisaged (sic) section 54. I therefore see no force in the prayer with the result that the application for review is rejected. Question of aforementioned and previously directed must be answered on 29-6-70 or proper proceedings shall be taken."
6. The Commissioner of Income-tax, Rawalpindi Zone, Rawalpindi has come up in revision to this Court against the aforesaid order of the learned Civil Judge praying for setting aside the order of the learned Civil Judge regarding the production of the record with respect to the income-tax assessm ent of the plaintiff, Mr. Muhammad Afzal Lone, Advocate for the petitioner, Mr. Sardar Khan, Advocate for Haji Muhammad Din respondent No, 1 and Sardar Akhtar Ali, Advocate for Mr. Abdul Waheed, Advocate for respondent No, 2 heard and the record perused. The relevant law on the point is given under section 54 of the Income-tax Act and subsection (1) of the said section runs as follows: "All particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of this Act, or in any evidence given, or affidavit or deposition made in the course of any proceedings under this Act other than proceedings under this Chapter, or any record of any assessm ent proceeding, or any proceeding relating to the recovery of a demand, prepared for the purposes of this Act, shall be treated as confidential and notwithstanding anything contained in the Evidence Act, 1872 (I of 1872), no Court shall, save as provided in this Act, be entitled to require any public servant to produce before it any return accounts or documents or any part of any such record, or to give evidence before it in respect thereof."
The learned counsel for the parties agreed with the principle that subsection (1) mentioned above prohibits the production of record relating to assessment proceedings which are treated as confidential and that no party to a suit is entitled to require any public servant to produce before it any such return or give evidence before it in respect thereof. But what was, however, contended on behalf of respondent No, 2 in support of the lower Court's order was that although the Court could not require a public servant to produce certain returns, accounts and documents etc. or to give evidence in respect thereof, it was at liberty to enquire from such officer whether a person was or was not assessed to income-tax.
7. In this contention we have to refer to clause (m) of subsection (3) of section 54 of the Income- tax Act, which runs as follows:-- "(3) Nothing in this section shall apply to the disclosure--
(m) of so much of such particulars, to the appropriate authority, as, may be necessary to establish whether a person has or has not been assessed to income-tax in any particular year or years where under the provisions of any law for the time being in force such fact is required to be established."
Now a mere perusal of this clause shows that the particulars as to whether Muhammad Din was or was not assessed to income-tax would only be disclosed if under the provisions of any law this fact was required to be established. Counsel for Win Commander Munir-ud-Din, respondent No, 2, however, could not point out any law under the provision of which his client was under an obligation to prove that Muhammad Din respondent No, 1 was or was not assessed to income-tax.
The proof of other matters generally falling under the Evidence Act was not covered by this clause.
In this view of mine I am fortified by the following authorities : (a)Income-tar Officer, Rohtak v. Janki Devi and another (1955) 28 I T R 905.
(b)Tandapu Sambayya v. Cherukuri Venkateswarlu and others (1963) 7 Taxation 315.
Counsel for respondent No, 2 could not produce any authority to the contrary: Consequently, I hold that the learned Civil Judge could not order the Income-tax authorities to disclose him the particulars as to whether Muhammad Din was or was not assessed to income-tax. Accordingly the revision petition is accepted. No order, however, as to costs.