IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1220 of 2008 Date of decision:03.03.2009 Santokh Singh Ghai ...Petitioner versus M/s S.S.Products of India and others ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Piyush Kant Jain, Advocate for the petitioner. Mr.Sanjeev Manrai, Advocate for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. K.Kannan, J.(Oral) 1. The application filed by plaintiff during the course of trial for summoning certain records for the purpose of cross-examination of a witness DW-2 was rejected by the trial Court and the plaintiff is revision petitioner before this Court. 2. The suit had been filed for seeking for a decree for Rendition of Accounts and for recovery of amount due and recoverable from the defendants as commission for the sales effected from the period 1992-93 till date of suit. The plaintiff himself did not ascertain the sum and therefore had valued at Rs.10 lakhs with the undertaking to pay additional Court fee when the Court ascertained the exact amount recoverable from the defendants. Civil Revision No.1220 of 2008 - 2 - 3. The documents which were sought to be summoned were with reference to the three offices namely from the Sales Tax Department, Central Excise and the Income Tax Department from the years 1992-93. The exact details of the documents which had been summoned were also referred to in petition. The Court below while rejecting the petition had referred to Section 26 of the Punjab General Sales Tax Act which treated as confidential, “the returns or account of documents produced in accordance with the Act and notwithstanding anything contained in the Evidence Act, no Court shall be entitled to require any officer of the State Government to produce before it any such statement return, statement .....” 4. The contention of the learned counsel for the petitioner is (1) the basis for his plea regarding relevance of documents (2) and the nature and privilege claimed by the defendants. As regards the first contention, the learned counsel points out to the evidence of the witness DW-2 where, during the course of cross-examination, the witness had admitted that the original accounts alone had been destroyed and the copies alone had been subsequently produced. The counsel therefore contended that the suit being one for accounts and for commission charges for sales routed directly or indirectly through the defendant, the relevance of the details that could be contained in the documents with the Taxation Authorities could not be underestimated. The second contention was that the documents sought for production related to documents with sales tax, excise and income tax authorities. The trial Court had rejected the petition by reference to a provision of the Civil Revision No.1220 of 2008 - 3 - Sales Tax Act referred to above and assumed that as they had analogous immunity against all other Acts as regards income tax records and excise documents. According to him, even otherwise the plaintiff further suggests that as an agent, referring to a decision of the High Court in 'Sohan Lal v. Nasib Chand and others, reported in 1978 STC 381', contended that privilege applies only to documents produced in the course of proceedings under the Act and not to seized documents. In the above decision, a plea by a partner for production of seized documents from other partners was not prohibited. This decision is cited to draw a parallel to a situation, where the plaintiff who has the status as an agent is entitled to some production. In my view, the said decision will have no application where a partner ei al once a principal as well as an agent vis a vis the other partner. 5. Learned counsel appearing for the respondent points out to the averments made in the plaint and contends that there are no specific details of how the claims are tenable and how the attempt of the plaintiff was merely to harass and delay the proceedings. He refers to the decision of the Hon'ble Supreme Court in 'Tulsiram Sanganaria and another v. Shrimati Annibai (dead) by her legal representatives and others'- reported in AIR 1971 Supreme Court 671, that had been rendered with reference to Section 54 of the Income Tax Act. The decision spells out that an assessment order which is a confidential document could be admissible in evidence if produced by the assessee or the representative in interest could not be relevant or directed to be produced at the instance of any other person. Civil Revision No.1220 of 2008 - 4 - 6. I have considered the relevant contention of both the parties and I am of the view that even without joining issues on the merits of the claim made by the plaintiff, the summoning of the documents themselves could not have been summarily rejected the plea except in relation to documents for which under the relevant provisions of the Act, there had been privilege against the production of returns. The petition for summoning for some documents details three categories of documents. As regards the first category namely the records of Sales Tax Returns from the year 1992-93, the returns are squarely covered by the confidentiality preserved through Section 26 of the Punjab Sales Tax Act. The first category also spells out copies of bills of the Firm which have been submitted to the Sales Tax Department along with ICC data of the said Firm. No such immunity is available for such nature of documents and therefore the summing of the other type of documents could not be objected. As regards the second category namely the Central Excise along with Sales Tax Returns from the year 1992-93, I have gone through the relevant provisions of the Central Excise Act, 1944 and there are no similar provisions like the one that obtains under Sales Tax Act or the Income Tax Act. Such of those details of sales which have been made by the Firm and the copies of the Bills that have been submitted by the Firm to the Central Excise which are available and for which there are no specific immunity provided under an Act, shall be directed to be summoned. As regards the third category, all records from Income Tax Department, the returns are privileged under Section 54 of the Income Tax Act and hence cannot be summoned. The balance- Civil Revision No.1220 of 2008 - 5 - sheet returns of profit and loss account and trading account which are sought for, though not specifically spelt out under Section 54 have also to be taken as bar by reference to the fact that the section that also bars the particulars contained in any statement made. A statement made to the Income Tax Department along with the returns cannot be any statement other than a statement of balance-sheet or Profit and Loss Account and therefore, the document sought under the category 3 in the petition are also covered by the statutory immunity provided under Section 54 of the Act. 7. Under the circumstances, the order of the Court below dated 10.05.2007 is modified and the plaintiff shall be entitled to summon the documents referred to in the petition in para 3(1), viz the ICC data of the Firm available for the concerned Excise and Taxation Department, Ludhiana-II and the details of sales made by the Firm from the year 1992-93 upto the date of suit and copies of bills submitted to the Central Excise, Range-I, Division No.5, Ludhiana, specified in paragraph 3(ii) of the petition. The Court below shall issue the necessary subpoena for production of the documents in accordance with law. 8. The Civil Revision is disposed of in the above terms. (K.KANNAN) JUDGE 03.03.2009 sanjeev