Judgment Lalit Mohan Sharma, J. 1. The plaintiff-opposite party filed a suit in the court below praying for a money decree against the petitioner on the basis of a promissory note evidencing a loan of Rs. 4,000. The defendant has, inter alia, stated in his written statement that he had borrowed a sum of Rs. 2,000 only. With a view to support his plea, the defendant prayed before the court for calling for the profit and loss account attached to the plaintiffs income-tax return. The prayer was allowed by the learned Subordinate Judge and the Income-tax Department, Monghyr, sent the document to the court without any objection. The defendant then wanted to tender the paper in evidence and to get it marked as an exhibit. The plaintiff objected. The prayer of the defendant has been rejected by the learned Subordinate Judge by the order impugned in this revision application. 2. Mr. D, N, Sinha, learned counsel appearing in support of this application, has contended that the learned subordinate judge erred in relying upon the decisions including the case in Banarsi Devi V/s. Janki Devi [1959] 37 ITR 510 (Pat), which were decided when the earlier Act being the Indian I.T. Act, 1922, was in force. The position under the Act of 1961, after the repeal of Section 137 in 1964, is entirely different and the petitioner is entitled to get the document in question admitted in evidence. Mr. Jugal Kishore Prasad, learned counsel for the plaintiff, has urged that in view of Sec.138 of the 1961 Act, any information relating to any assessee cannot be divulged to or at the instance of any person other than the assessee himself, as the same cannot be held to be in public interest. No disclosure is permissible in private interest. 3. It will be useful to briefly review the relevant sections in the two I.T. Acts before proceeding further. In the 1922 Act, the following provisions were included in Sec. 54(1) with a view to ensure the confidential nature of the information relating to an assessee in the following terms : "54. No disclosure is permissible in private interest. 3. It will be useful to briefly review the relevant sections in the two I.T. Acts before proceeding further. In the 1922 Act, the following provisions were included in Sec. 54(1) with a view to ensure the confidential nature of the information relating to an assessee in the following terms : "54. Disclosure of information by a public servant.--(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 this Chapter, 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 Indian Evidence Act, 1872 (1 of 1872), 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 hereof." 4. Relying on this provision, a Division Bench of this court in Banarsi Devi v Janki Dem [1959] 37 ITR 310 (Pat), held that in appeal the income-tax documents could not be produced in evidence by any other person unless they come within the exception mentioned in Sub-section (3). The position of the assessee was considered to be different on the principle that a person entitled to an advantage can waive the same. In 1960 a new provision was introduced by amendment under Sec. 59B, which reads as follows : " 59B, Disclosure of information respecting tax payable,--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 first day of April, 1960, the Commissioner may, notwithstanding anything contained in Sec. 54, if he is satisfied that there are no circumstances justifying its refusal, furnish or cause to be furnished the information asked for." 5. When the old Act was substituted by the 1961 Act, the provisions of Section 54 were retained in Sec.137 and those of Sec. 59B under Sec.138. In 1964, Sec.137 was repealed altogether and Sec.138 was substituted by a new section as mentioned below: " 138. 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 Indian Income-tax Act, 1922(11 of 1922), on or after the 1st day of April, I960, 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 Government may, having regard to the practices and usages customary 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 of such class of assessees or except to such authorities as may be specified in the order." 6. It is plain from these provisions that earlier the records of assessment proceedings prepared for the purpose of I.T. Act were made confidential and a prohibition was imposed on courts from requiring any public servant to produce any part thereof and to give evidence in respect thereof by way of curtailment of the scope of the Indian Evidence Act in this field. In 1964, the embargo against the courts power was totally omitted and Sec.138 was retained in a modified form. In the original Sec.138 a person could seek information from the Commissioner as to the amount of tax payable by an assessee, while after the amendment in 1964 a person can make an application to the Commissioner for any information relating to any assessee. The scope has been widened with respect to the discretion of the Commissioner. In the original Sec.138 a person could seek information from the Commissioner as to the amount of tax payable by an assessee, while after the amendment in 1964 a person can make an application to the Commissioner for any information relating to any assessee. The scope has been widened with respect to the discretion of the Commissioner. Earlier, if the Commissioner was satisfied that there were no circumstances justifying his refusal he had to furnish information sought for but since April I, 1964, he had to be satisfied that furnishing the information asked for was in the public interest. His decision in this behalf was final. The Central Govt. can, under Sub-section (2), direct that no information or copy of document shall be made available in respect of a particular class of assessee. In 1967 a further change was introduced in the section as Clause (b) of Sub-section (1), and Clause (a), as quoted below, was added : " 1. (a) The Board or any other income-tax authority specified by it by a general or special order in this behalf may furnish or cause to be furnished to: (i) any officer, authority or body performing any functions Under any law relating to the imposition of any tax, duty or cess, or to dealings in foreign exchange as defined in Sec.2(d) of the Foreign Exchange Regulation Act, 1947 (7 of 1947); or (ii) such officer, authority or body performing functions under any other law as the Central Government may, if in its opinion it is necessary so to do in the public interest, specify by notification in the Official Gazette in this behalf, any such information relating to any assessee in respect of any assessment made under this Act or the Indian Income-tax Act, 1922 (11 of 1922), as may, in the opinion of the Board or other income-tax authority, be necessary for the purpose of enabling the officer, authority or body to perform his or its functions under that law." 7. The defendant contends that as a result of this amendment, the right of the plaintiff, of claiming confidential nature of his income-tax documents, has disappeared and the earlier decisions have no relevance now since the matter concerns the I.T. Dept of the Union of India also, and Sec.138 refers to the discretion of the Commissioner of Income-tax, in regard to certain matters, in the stated circumstances, I considered it expedient to hear the standing counsel of the I.T. Dept. and a notice was accordingly issued. In response, Mr. B.P. Rajgarhia assisted by Mr. S.K. Saran appeared and supported the petitioner. 8. Developing his argument, Mr. Jugal Kishore Prasad contended that to hold that any individual can, as a matter of right, ask a court to call for the tax papers of another person will be tantamount to defeating the provisions of Sec.138 for the said section can be then defeated with impunity by adopting an indirect method. The course open to a person relying on such documents is to move the Commissioner of Income-tax for a copy and in such a situation it will be entirely within the jurisdiction of the Commissioner to decide as to whether the copy can be granted in public interest. Unless a copy is so obtained, nobody should be permitted to circumvent the section by employing the instrumentality of a court. 9. I do not find myself in a position to accept the argument of Mr, Prasad which, in substance, ignores the repeal of Sec.137. Sections 54 and 59B of the 1922 Act and the corresponding Sections 137 and 138 of the next Act were not overlapping and dealing with the same matter. One laid down the principle relating to the courts power to call for evidence for the purpose of a particular litigation and the other in regard to the right of a person not necessarily a party to a case seeking certain information. Although the matters dealt with are allied, the sections cover separate fields. In neither case, the right of a person in regard to calling for the tax documents of another or seeking information was or is, at any point of time, uncontrolled. In one case, the discretion of the Commissioner has been expressly mentioned in the section and in the other the discretion of the courts is implied. In neither case, the right of a person in regard to calling for the tax documents of another or seeking information was or is, at any point of time, uncontrolled. In one case, the discretion of the Commissioner has been expressly mentioned in the section and in the other the discretion of the courts is implied. It must be presumed that a court shall not grant a prayer where it amounts to an abuse of the process of the court. Of course the discretion of the two authorities has to be exercised differently in accordance with the scope and purpose. It is, therefore, futile to suggest that in substance although the embargo on the courts power has been lifted by repeal of Sec.137, the repeal should be ignored and not given effect to on the strength of the provisions of Section 138. I, accordingly, hold that the court could pass appropriate orders in accordance with the provisions of the Code of Civil Procedure and the Evidence Act without taking into account the limitation which Sec.137 of the I.T. Act, 1961, had placed earlier. 10. I have examined several cases on this point, some of them have been cited at the Bar, and it appears that conflicting opinions have been expressed by different High Courts. It does not appear useful to refer to all of them except the decision in Trilok Chand Jain V/s. D. R. P. Lall [1974] 95 ITR 34 (Delhi) [FB] and Pentakota Surya Appa Rao V/s. Pentakota Seethayamma [1976] 103 ITR 222 (AP), cited by Mr. Rajgharhia. Mr. Prasad relied on the decision in para 66 of the judgment in Trilok Chand Jains case and, with respect, I express my inability to agree with the observation implying a restraint on the courts power in this regard even after the repeal of Sec.137 on the strength of the provisions of Sec.138. The views expressed by the Andhra Pradesh High Court in Pentakota Surya Appa Rao V/s. Pentakota Seethayamma are consistent with mine and with great respect I adopt all the reasons mentioned therein. 11. In the result, I set aside the impugned order and allow the petitioners prayer made in the court below. The revision application is accordingly allowed, but without costs.