ORDER
GURDEV SINGH J. - This petition for revision raises the question of the priviledge attaching to the records of assessments made by the income-tax authorities. [ENTITY] brought a complaint under [SECTION], [ACT], against [ENTITY] in the court of the Magistrate, First Class, Jullundur. In the course of the trial the complainant applied to the court for summoning "the income-tax file of Hindu undivided family firm, Messrs. [ENTITY], Cloth Merchants, Lal Bazar, Jullundur City" for the income-tax year 1947-48, through the Income-tax Officer, C-Ward. Jullundur. This was stated to be necessary in order to bring on record the affidavit filed by [ENTITY], mother of [ENTITY] accused, in the course of the assessment proceedings and the final order passed by the income-tax authorities. Accepting this application the learned Magistrate issued an order to the present petitioner, [ENTITY], the Income-tax Officer concerned, to produce the relevant file. On the 19th November, 1963, the petitioner Income-tax Officer sent a letter to the court through his inspector claiming privilege under [SECTION] of the [ACT], pointing out that in accordance with that provision the assessment records were to be treated as confidential and no court was entitled to require any public servant to produce these records or to give evidence therefrom. The learned trial judge refused to accept this contention and holding that no such claim of previlidge could be made if the records were required for the purposes of a prosecution under the [ACT], directed the Income-tax Officer to produce the same on the 28th November, 1963.
On the adjourned hearing, the petitioner, Shri [ENTITY], himself went to the court with the requisitioned file in a sealed cover and made an application claiming privilege under [SECTION] of the [ACT]. In support of this application [PRECEDENT] and [PRECEDENT] were cited before the trial court. The learned Magistrate, however, distinguished these cases on the ground that they were based on consideration of [SECTION] of the [ACT], and not of any provision of the Act of 1961. Being still of the opinion that no exemption could be claimed under [SECTION] of the [ACT], she ruled that no priviledge attached to the records summoned from the petitioner-Income-tax Officer, especially when copies of the three documents, which were sought to be proved at the trial, had already been granted by the income-tax authorities. Being not satisfied with this order, the petitioner went up in revision to the court of session at Jullundur and the learned Additional Sessions Judge has now referred the case to this court under [SECTION] of the [ACT] with the recommendation that the order of the Magistrate requiring the petitioner to produce the assessment record in question be quashed as it was not warranted by the provisions of [SECTION] of the [ACT].
[SECTION] of the [ACT], on which reliance is placed on behalf of the petitioner, so far as it is relevant for our purposes, runs as follows :
"137. (1) 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 [SECTION], or in any record of any assessment proceeding, or any proceeding relating to recovery of a demand, prepared for the purposes of this Act shall be treated as confidential, and notwithstanding anything contained in the [ACT], no court shall, save as provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record, or to give evidence before it in respect thereof.
(2) No public servant shall disclose any particulars contained in any such statement, return, documents, evidence, affidavit, deposition or record.
(3) Nothing in this section shall apply to the disclosure -
(i) of any such particulars for the purposes of a prosecution for any offence under the [ACT] in respect of any such statement, return, accounts, documents, evidence, affidavit or deposition, or for the purpose of a prosecution for any offence under this Act ; or"
A bare reading of clause (i) of sub-section (3) of this section, on which the learned Magistrate has relied is enough to show that her finding that no priviledge attaches to the various documents produced before the income-tax authorities if the documents are required in connection with prosecution for any offence under the [ACT] is untenable. The exception contained in that sub-section does not apply to prosecution for all offences under the [ACT] but only to such offences under that Code which are "in respect of any such statement, return, acounts, documents, evidence, affidavit or deposition", and any offence under the [ACT]. This fact is not disputed before me, but on behalf of the respondent, [ENTITY], it is contendd that the protection claimed under [SECTION] of the [ACT], is no longer available to the petitioner and at present no priviledge attaches to the documents for the production of which the impugned order was made by the learned Magistrate. Reference in this connection is made to [SECTION] and [SECTION] of the [ACT], whereby [SECTION] of the [ACT], has been ommitted and [SECTION] existing therein has been replaced by the following provision :
"[SECTION]. Disclosure of information respecting assessees. (1) Where a person makes an application to the Commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made either under this Act or the [ACT], on or after the 1st day of April, 1960, the Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any court of law.
(2) Notwithstanding anything contained in sub-section (1) or any other law for the time being in force, the Central Governmentmay, having regard to the practices and usages contomary or any other relevant factors, by order notified in the official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order."
When the impugned order for the production of documents was made by the learned Magistrate, the [ACT] was not in existence. Accordingly, the validity of the order of the Magistrate has to be considered in the light of the provisions contained in the [ACT], prior to the amendments effected by the [ACT]. That, however, would not solve the problem because even if that order is found to be bad or in excess of the powers of the Magistrate, there would be nothing to prevent her from making a fresh order at this stage requiring production of the income-tax records in quesiton if it is not hit by the provisions of [SECTION] of the [ACT], as it now exists after the amendment effected by the [ACT]. Thus, it is with reference to this new provision introduced by the [ACT] that the question of priviledge has to be considered.
The position at present is that the only provision with regard to the disclosure of information by the income-tax authorities regarding assessees is that contained in [SECTION] of the [ACT], as amended in 1964. Though in the [ACT], as well as in the [ACT], as it stood before its amendment by the [ACT], penalty was provided for unauthorised disclosure of information regarding assessees, at present the [ACT] does not contain any such provision. [SECTION], as it exists after the amendment of the year 1964, seems to make the Commissioner of Income-tax the sole authority for determining whether any information relating to any assessee in resoect of any assessment should or should not be supplied and if it is to be supplied, to what extent. Of course, under sub-section (2) of the newly introduced [SECTION], the Central Government is empowered to issue notification prohibiting the supply of certain information contained in assessment record, yet it is common case of the parties that no such notification has yet been issued. In this state of affairs, the petitioners learned counsel has contended that the proper procedure for the respondent would be to make the necessary application for information to the Income-tax Commissioner concerned and even if the court desires to have the assessment records ot a part thereof before it for purposes of evidence, a communication has to be addressed to the Income-tax Commissioner and unless he grants permission for the production of certain records or furnishing of information at the hearing of the case no evidence in respect of the records can be taken.
The respondents learned counsel, on the other hand, has pointed out that the authority of the Commissioner to supply or withhold information under [SECTION], as it stands amended by the [ACT], is confined only to assessments made on or after the 1st day of April, 1960, and this provision cannot apply to the records of the assessments completed before the 1st day of April, 1960. The literal construction of the relevant provision does seem to bear out this argument but, as urged by the learned counsel for the petitioner, there does not appear to be any cogent reason for thinking that the modified priviledge, which the legislature has introduced by [SECTION] of the [ACT], ammending [SECTION], should have been intended to apply only to the assessments made on or after the 1st day of April, 1960, and leave the income-tax records and assessment proceedings relevant to the earlier period unprotected and open to public sscrutiny except for the limited priviledge which can be claimed under the general provisions contained in [SECTION] and [SECTION] of the [ACT].
The question raised is one of considerable difficulty and importance not only to the general public but due to the income-tax authorities as well. As a decision on this question is likely to have wide reperscussions and any order passed on the revisional side will not be open to appeal, I consider it desirable that the matter be placed before a larger Bench for an authoritative decision. I, accordingly, direct that this case be laid before my Lord the Chief Justice for necessary orders.
The quewstion D D D documents, evidence, affidavit of any such statement, return [ENTITY] J. - This is a reported criminal revision and has been referred to a Division Bench by [ENTITY] J. because he considered that the legal points raised involved the construction to be placed on the various provisions of the [ACT], the [ACT] and the [ACT]. The reporting officer is the Additional Sessions Judge, Jullundur, and the petitioner before him was Shri. [ENTITY], Income-tax Officer, C-Ward, Jullundur. The petition arose out of a criminal case [ENTITY] v. [ENTITY], under [SECTION] of the [ACT] pending in the court of the Additional District Magistrate, Jullundur. [ENTITY] is respondent No. 2 and [ENTITY] is respondent No. 3 to the present petition, while the State is respondent No. 1.
In the criminal case at the instance of [ENTITY], complainant, the Additional District Magistrate summoned the income-tax file of Hindu undivided family firm, Messrs. [ENTITY], cloth merchants of Jullundur City, for the income-tax year 1947-48, decided on the 14th February, 1957, and the summons had issued to the income-tax Officer, C-Ward, Jullundur. The purpose of obtaining the file, as would appear from the Additional District Magistrates order, dated the 19th November, 1963, was that the complainant wanted to prove the affidavits made by Smt. [ENTITY], mother of the complainant, and by [ENTITY] accused and the final order passed by the income-tax authorities in that file. At the hearing of the case an inspector of the income-tax department produced a letter from the petitioner claiming protection under [SECTION] of the [ACT]. On this application the final order passed by the Additional District Magistrate is dated the 28th of November, 1963, in which the objection to the production of the documents in the summoned file was repelled by her. It was observed that clause (i) of [SECTION] of the [ACT] (this section correspond to [SECTION] of the [ACT] does not provide for the protection of any particulars contained in any statement made, return furnished by the assessee or in any evidence given, or affidavit or deposition made by him, if these particulars were required for the purpose of a prosecution for any offence under the [ACT] in respect of any such statement, return, accounts, documents, evidence, affidavit, etc., or for the purpose of a prosecution for any offence under the [ACT].
Now, as observed by the learned single judge and as conceded as the bar by Shri [ENTITY], the learned counsel for [ENTITY], complainant (who alone appeared to contest the revision petition), clause (i) of [SECTION] of the [ACT] (and ipso facto clause (a) of sub-section (3) of [SECTION] of the [ACT], is not attracted to this case, because the documents which are sought to be proved from the summoned file are not for the purpose of a prosecution for any offence under the [ACT] referred to in [SECTION] or for any offence under [ACT]. The other ground upon which the Additional District Magistrate proceeded, viz., that the income-tax authorities had already issued copies of these documents, would not be relevant if, as contended by Shri [ENTITY], the learned counsel for the petitioner, the protection from and prohibition of disclosure, as conferred by [SECTION] of the [ACT], still subsist, so far as the document in the summoned file are concerned. The objection made by Mr. [ENTITY], viz., that in his objections to the production of the documents the Income-tax Officer had referred to [SECTION] of the [ACT], and not [SECTION] of the [ACT], would also be immaterial if the legal position is found to be that it is the latter provision which still continues to govern the documents, statements, etc., in the summoned file.
For the consideration of the legal questions involved, it is desirable to refer briefly to the various changes made in the relevant provisions of the [ACT] from time to time. [SECTION] of the [ACT], so far as relevant, was as follows :
"54. (1) All particulars contained in any statement made, return furnished or accounts or documents produced under the provision 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 ([SECTION]), or in any record of any assessment 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 [ACT], no court shall, save as provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of such record, or to give evidence before it in respect thereof.
(2) If a public servant discloses any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine."
Sub-section (3) specifies certain exceptions to the law as laid down in sub-sections (1) and (2) and need not be reproduced, because admittedly none of the exceptions is material in this case. The assessment in question, which related to the year 1947-48, was completed in the year 1957, and there is no dispute that till the date of completion the veil of secrecy attached to all the particulars contained in the assessment file as mentioned in [SECTION]. The object of the protection as stated in various authorities referred to at page 609 of volume 1 of the Law and Practice of Income-tax by [ENTITY] and [ENTITY] (fifth edition), was to enable people to feel that they could freely state the facts relating to their income, facts which may often involve confidential matters relating to their business, without fear of the matters being disclosed to others. By [SECTION] of the [ACT], a new [SECTION] was introduced in the principal Act, which was to the following effect :
"59B. Where a person makes an application to the Commissioner in the prescribed form and after payment of the prescribed fee for information as to the amount of tax determined as payable by any assessee in respect of any assessment made on or after the 1st day of April, 1960, the Commissioner may, notwithstanding anything contained in [SECTION], if he is satisfied that there are no circumstances justifying its refusal, furnish or cause to be furnished the information asked for."
The next amendment of law which has to be considered is that effected by [SECTION] of the [ACT], and in some respects the protection given by [SECTION] of the [ACT], was enlarged, because in [SECTION] what was implicit in the 1922 Act was expressly stated, that no public servant shall disclose even voluntarily any particulars contained in documents declared by the section to be confidential.
[SECTION] is the same terms as is [SECTION] of the [ACT], and repeats that it is only to assessments made either under that Act or under the [ACT], on or after the 1st day of April, 1960, that this section could be resorted to. By [SECTION] of the [ACT], the [ACT], was repealed but there were various saving clauses of which (a) and (c) may be reproduced :
"(a) Where a return of income has been filed before the commencement of this Act by any person for any assessment year, proceedings for the assessment of that person for that year may be taken and continued as if this Act had not been passed;"
Lastly, there is the [ACT], by [SECTION] of which [SECTION] of the [ACT], has been omitted. By [SECTION], [SECTION] of that Act has been substituted. [SECTION] is the same as [SECTION] of the [ACT], and sub-section (2) has been added which is not material to our purpose and need not be re-produced.
Mr. [ENTITY] arguments are as follows :
It is a cardinal principle of the [ACT] that each assessment year is a separate self-contained period. Each "previous year" is a distinct unit of time for the purposes of assessment (see [PRECEDENT]). The law which will govern assessments in a particular year is that which was prevalent at the time and it is only when there is a specific statutory provision having retrospective effect that a different law or procedure can be applied. This is clearly borne out by the various amendments made from time to time as mentioned above. Thus, the [ACT], was by [SECTION], deemed to have come into force on the 1st day of April, 1960, and was not applicable to any earlier period. The exception to [SECTION] of the Act of 1922 as made in [SECTION] which was inserted by the [ACT], also could be resorted to only in respect of assessments made on or after the 1st day of April, 1960, and this very date was, as mentioned above, repeated in [SECTION] of the [ACT], as also in [SECTION] as inserted by the [ACT]. The [ACT] came into force on the 1st day of April, 1964, and it is conceded by Mr. [ENTITY] that on account of the deletion of [SECTION] by this Act the privilege of secrecy to the records of any assessment made after the 1st day of April, 1964, would not be applicable, but his position is that so far as records of assessment made prior to the 1st of April, 1962, are concerned, [SECTION] of the [ACT], would apply, and between that date and the 1st day of April, 1964, [SECTION] and [SECTION] of the [ACT], would apply. This contention appears to be borne out by the scheme of the statute as given above.
On the other hand on behalf of the contesting respondent it is maintained that inasmuch as [SECTION] of the [ACT], repealed the [ACT], the protection as conferred by [SECTION] of the former Act was no longer available. To meet this argument Mr. [ENTITY] has relied on [SECTION] of the [ACT] and has in particular referred to clause (c) thereof, according to which the repeal of any Central Act of Regulation shall not - unless a different intention appears - affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It was contended by him that keeping in view the object for which the statute imposed the veil of secrecy on assessment records, the protection from disclosure must be regarded as the right or privilege of the assessee in terms of [SECTION] of the [ACT], and Mr. [ENTITY], on behalf of the contesting respondents, conceded that if [SECTION] applies to the case, the protection of assessment record from disclosure would be a right or privilege of the assessee under clause (c) thereof.
The question that remains is whether the consequences as laid down in [SECTION] of the [ACT]. The general principles as to the applicability of [SECTION] have been settled by the Supreme Court in [PRECEDENT]. It has been laid down that when ever there is a repeal of an enactment the consequences laid down in [SECTION] of the [ACT] will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. The court cannot, thereof, subscribe to the broad proposition that [SECTION] of the [ACT] is ruled out when there is repeal of an enactment followed by a fresh legislation. [SECTION] would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all relevant provision of the new law and the mere absence of a saving clause is by itself not material. The provisions of [SECTION] of the [ACT] will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment.
Keeping in view the above test, if must be held there is nothing in the [ACT], which manifests an intention that the protection from and prohibition of disclosure of assessment records as afforded by [SECTION] would not be applicable to assessments which had been completed before the 1st day of April, 1962, which was the date on which the [ACT], came into force. On the other hand the indications are that the legislature has been careful to keep that protection alive and subsisting with regard to assessments completed before that date such as the present one which was, as mentioned above, completed one the 14th February, 1957.
Mr. [ENTITY] argued that contrary indications were furnished by clause (e) of sub-section (2) of section 297 which is as follows :
"(e) Subject to the provisions of clause (g) and clause (j) of this sub-section, [SECTION] of the repealed Act shall continue to have effect in relation to the assessment of any company or its shareholders for the assessment year ending on the 31st day of March, 1962, or any earlier year, and the provisions of the repealed Act shall apply to all matters arising out of such assessment as fully and effectually as if this Act had not been passed."
His contention was that if [SECTION] of the repealed Act was to be kept alive, then there should also have been a specific provision for that purpose. Clause (e), however, was put in on account of the special provision of [SECTION], which gave the authorities power to assess companies to super-tax on undistributed income in certain cases and as provided in clause (e) this power also could be exercised only for assessment year ending on the 31st day of March, 1962 (that is, a day earlier to the coming into force of the [ACT]), or any earlier year. [SECTION] cannot, therefore, be invoked to counter Mr. [ENTITY] argument.
I am, therefore, of the view that the protection conferred by [SECTION] of the Act of 1922 was available to the petitioner Income-tax Officer so far as summoned file was concerned and the trial court in error in holding to the contrary. I would, therefore, accept the recommendations made by the learned Additional Sessions Judge, Jullundur, and set aside the orders of the trial court dated the 19th November, 1963, and the 28th November, 1963. The records are to be returned.
[ENTITY] J. - I agree.