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2005 DIGILAW 1239 (MAD)

Kiran P. Shah v. Urmila C. Shah

2005-08-01

R.BANUMATHI

body2005
Judgment :- Common Order: These Revisions are preferred against the Orders of the VII Assistant Judge, City Civil Court, Madras, made in I.A.Nos. 17138 and 17139 of 2003 dated 29-12-2003, declining to reopen the case and declining to issue summons to the Income Tax Department, summoning the Documents. The Defendant is the Revision Petitioner. 2. The relevant facts for disposal of these Revision Petitions could briefly be stated thus:- a) O.S.No. 6828 of 1997:- The case of the Plaintiff is that in respect of a transaction of the loan of Rs.2,50,000/-, the Plaintiff had executed a Memorandum of Agreement in favour of the Defendant, relating to Deposit of Title Deeds in respect of Flat No.5, Arihant Darsan, Bhuj Kutch. The Memorandum of Agreement relating to Deposit of Title Deeds was registered as Document No. A 1692 on 14-06-1993 before the Sub-Registrar, Bhuj Kutch, Gujarat State. The Plaintiff settled the matter by necessary payment in the sum of Rs.2,50,000/- in the First Week of January 1997. At that time, the Defendant also returned to the Plaintiff the Original Title Deeds that were deposited with the Defendant along with the Original Memorandum of Agreement, confirming the Deposit of Title Deeds. But, the Defendant had not completed the formality of Cancellation of the (Deposit of Title Deeds registered) Mortgage. Normally, the Cancellation of Mortgage in cases of equitable mortgage is done as a matter of convenience, so that the owner of the property may not face any practical difficulty in respect of future investigation of Title. On the above pleadings, the Plaintiff has filed the Suit for Declaration that the equitable mortgage by Deposit of Title Deeds dated 9-6-1993 is no longer subsisting after January 1997 and for other reliefs. b) Denying the allegations in the Plaint, the Defendant has filed the Written Statement contending that the Plaintiff's husband is the nephew of the Defendant and they are closely related. According to the Defendant, in January 1997, the Plaintiff's husband approached the Defendant and offered to sell the property to the Defendant. The Plaintiff's husband has further represented that he would go over to Bhuj Kutch and get all the necessary documents to effect the necessary conveyance, since, all the parties were expected to be in Bhuj Kutch to attend a family wedding. Believing his words, the Defendant had handed over the original Documents of Title to the Plaintiff's husband. The Plaintiff's husband has further represented that he would go over to Bhuj Kutch and get all the necessary documents to effect the necessary conveyance, since, all the parties were expected to be in Bhuj Kutch to attend a family wedding. Believing his words, the Defendant had handed over the original Documents of Title to the Plaintiff's husband. But, the Defendant was shocked and surprised to receive the Notice dated 7-3-1997 issued on behalf of the Plaintiff pleading discharge. The Defendant has sent a suitable reply dated 4-4-1997. The Plaintiff had not repaid the money nor settled the matter by necessary payment as alleged in the Plaint. The Plaintiff has neither repaid the loan amount nor the interest. Hence, the question of Registration of the Cancellation of Mortgage does not arise. c) The trial commenced and adducing of evidence was completed. When the case was posted for arguments, the Defendant had filed I.A.No. 17138 of 2003 to reopen the case; I.A.No. 17139 of 2003 was filed to issue summons to the Income Tax Department, summoning the Income Tax Returns of the Plaintiff and the Defendant from 1993-1994 till the date of filing the Application. According to the Defendant, the Trial Balance found in Exs.A.12 and 13 filed by the Plaintiff, do not reflect the correct Account and are alleged to be fabricated for the purpose of the Suit. Alleging that the burden is upon the Defendant to prove that the sum of Rs.2,50,000/- has not been repaid by the Plaintiff, the Defendant has filed this Application for issuance of summon to the Income Tax Officer at Anna Salai, Chennai, to produce the Income Tax Returns and Statement of Account, covering the Trial Balance and Balance Sheet of the Plaintiff and the Defendant. d) Resisting the Application, the Plaintiff has filed the counter statement contending that the statement of the Defendant that the Documents are fabricated is not justified. It is further alleged that in a case, where the amount is to be returned, normally no debtor would believe the creditor and return the Documents. In such circumstances, the payment of the loan amount and the return of the Documents must have taken place simultaneously. It is further alleged that when the Income Tax Rules permit furnishing of Certified Copy, there is no justification to summon the records from the Income Tax Department for such a long period. In such circumstances, the payment of the loan amount and the return of the Documents must have taken place simultaneously. It is further alleged that when the Income Tax Rules permit furnishing of Certified Copy, there is no justification to summon the records from the Income Tax Department for such a long period. If the Defendant wants to rely upon those Returns, he could very well apply for the Certified Copy, but, that is not permissible in this case, as a reason seeking to reopen the case, which is not a bonafide one. e) Upon consideration of the averments in the affidavit and in the counter statement, the learned VII Assistant Judge found that the Income Tax Returns cannot be taken as proof of payment of any debt. The trial Court dismissed the Application interalia finding:- "Section 138(1)(b) of the Income Tax Act enables a person to make the Application to the Commissioner of Income Tax to obtain any information. "It is for the Plaintiff to prove that she had discharged the loan and the burden lies upon the Plaintiff. 3. Aggrieved over the dismissal of the Applications for reopening the case and summoning the Documents from the Income Tax Department, the Revision Petitioner/Defendant has preferred these Revisions. The learned counsel for the Revision Petitioner has contended that when the Plaintiff has not produced any Document showing the repayment, summoning the Documents from the Income Tax Department is very much essential. Submitting that Income Tax Returns filed before the Court (Exs. A.12 and 13) are not the same, that were submitted before the Income Tax Department, the learned counsel for the Revision Petitioner/Defendant has submitted that the trial Court has not properly appreciated that the burden is upon the Defendant to prove that the amount had not been paid. It is contended that, under such circumstances, it is essential to call for the Income Tax Returns of the Plaintiff and the Defendant, and the impugned order has caused serious prejudice to the Defendant in putting forth his case and is to be set aside. 4. Assailing the maintainability of the Revision Petitions, the learned counsel for the Respondent/Plaintiff has submitted that the Revision Petitions are not maintainable. 4. Assailing the maintainability of the Revision Petitions, the learned counsel for the Respondent/Plaintiff has submitted that the Revision Petitions are not maintainable. Submitting that under the facts and circumstances of the case, even if the Income Tax Returns are going to be summoned, it would not advance the case of the Defendant, the learned Counsel has further submitted that when the case was posted for arguments, the Applications had been belatedly filed only to drag on the proceedings. Drawing the attention of the Court to Section 138 (1)(b) of the Income Tax Department, the learned counsel for the Respondent/Plaintiff has submitted that under the said provision a person could very well obtain the Certified Copy from the Income Tax Department and when that being so, the Revision Petitioner/Defendant is not justified in calling for the Documents/Income Tax Returns of the Plaintiff and the Defendant for the years 1993-1994 till the time of filing the Application in 2003. In support of his contention that Income Tax Returns cannot be summoned to the Court, the learned counsel for the Respondent/Plaintiff has relied upon the decision reported in 2002 (3) A.L.T. 518 (M/s.New Deccan Hall Vs. M/s. Delight Electrical Works). 5. Upon consideration of the contention of both the parties, the impugned orders and other materials on record, the following points arise for consideration in these Revision Petitions:- i. Whether the Defendant is right in calling for the Income Tax Assessment/Income Tax Return of the Plaintiff, viz., Exs. A.12 and 13 are relevant? and ii.Whether the order declining to call for the records, warrants interference exercising the supervisory power under Article 227 of the Constitution of India? 6. The Suit was filed in the year 1997 for declaration – declaring that the equitable mortgage by Deposit of Title Deeds dated 9-6-1993 is no longer subsisting after January 1997. The evidence was completed. When the case was posted for arguments, I.A.Nos. 17138 and 17139 of 2003 were filed to reopen the case and for issuing subpoena to the Income Tax Department, to summon the Income Tax Returns of the Plaintiff and the Defendant from 1993-94. The evidence was completed. When the case was posted for arguments, I.A.Nos. 17138 and 17139 of 2003 were filed to reopen the case and for issuing subpoena to the Income Tax Department, to summon the Income Tax Returns of the Plaintiff and the Defendant from 1993-94. Before filing the Applications, while the Plaintiff's witnesses were in the box, on behalf of the Defendant, Notice to produce Documents was sent to the Plaintiff's Counsel on 15-07-2003 calling upon the Plaintiff to produce her "Tax payer's copy of the Income Tax Returns of the Plaintiff Urmila C.Shah for the years 1996-1997 and 1997-1998." The same was produced by the Counsel for the Plaintiff. At the same time, on 23-07-2003, the Plaintiff's Counsel has called upon the Defendant to produce his Income Tax Returns from the Assessment year 1997-1998 till the date of issuance of the Notice. Despite calling for production of the Income Tax Assessment, the Defendant has not produced his Income Tax Returns for the years 1996-1997 and 1997-1998. 7. Be that as it may. As called for by the Defendant, the Plaintiff has produced her Income Tax Returns for 1996-1997 and 1997-1998 (Exs. A.12 and 13). The Statement of Income Tax Returns had been produced before the concerned Income Tax Circle. From the acknowledgement sheet filling in the Return and the Statement of Return, it is seen that the taxable income of the Plaintiff has been:- Assessment Year Taxable Income 1996-1997 ... Rs. 40,723/- rounded off to Rs.40,720/- 1997-1998 ... Rs.39,310/- 8. In Ex.A.12 Income Tax Return, credit is shown towards the amount of Kiran P.Shah/Defendant to an amount of Rs.2,50,000/-, which is said to have been paid during January 1996. As per the Statement of Income for the Assessment Year 1996-97, the taxable income of the Plaintiff was Rs.40,723/- rounded off to Rs.40,720/-. The acknowledgement – Return Form No.2 contains the total income rounded off to Rs.40,720/-. Absolutely, there is no variance or discrepancy between Return Form No.2 and the Statement of Income thereon. Return Form No.2, which contains the Seal of the respective Office of the Income Tax Department, cannot be doubted. 9. Only the Defendant had called upon the Plaintiff to produce the Income Tax Returns for the Assessment Years 1996-1997 and 1997-1998. Absolutely, there is no variance or discrepancy between Return Form No.2 and the Statement of Income thereon. Return Form No.2, which contains the Seal of the respective Office of the Income Tax Department, cannot be doubted. 9. Only the Defendant had called upon the Plaintiff to produce the Income Tax Returns for the Assessment Years 1996-1997 and 1997-1998. Having called for the Documents, finding that payment of amount of Rs.2,50,000/- had been shown in the Income Tax Return, the Defendant disputes the correctness and genuineness of Ex.A.12 and Return Form No.2 thereon. In the affidavit, it is averred that the Plaintiff relies and understands that Exs. A.12 and 13 produced on behalf of the Plaintiff are fabricated Documents and they do not reflect the real Statement of Account. As noted earlier, Return Form No.2 contains the Seal of respective Office of the Income Tax Department. When that being so, the Court cannot doubt the correctness of Ex.A.12. The suspicion/doubts raised regarding the genuineness of Ex.A.12 is not well founded. 10. Expressing doubts on the correctness of the entries and the Statement of Account made in Ex.A.12 and the corresponding Form No.2, on behalf of the Defendant the Applications have been filed to call for the records from the Income Tax Department. The learned counsel for the Revision Petitioner has submitted that in the interest of justice, the Documents stated in the petition ought to have been summoned. Section 138(1)(b) of the Income Tax Act stipulates that the Chief Commissioner or Commissioner may furnish or cause to furnish any information asked for, if he is satisfied that it is in the public interest and his decision in that behalf shall be final and shall not be called for in any court of law. 11. The learned counsel for the Respondent/Plaintiff has drawn the attention of the Court to the decision reported in 2002 (3) A.L.T. 518 (M/s. New Deccan Hall Vs. M/s. Delight Electrical Works), wherein, the learned Judge has confirmed the order of the lower Court in refusing to summon the documents of another assessee. Pointing out that both sides adduced sufficient evidence to conclude the issue involved, the learned Judge declined to interfere with the impugned order, refusing to summon the documents of another assessee from the Income Tax Department. The case in hand also stands on the similar footing. 12. Pointing out that both sides adduced sufficient evidence to conclude the issue involved, the learned Judge declined to interfere with the impugned order, refusing to summon the documents of another assessee from the Income Tax Department. The case in hand also stands on the similar footing. 12. No where in the affidavit, it has been indicated that the Defendant has approached the Income Tax Department and despite his request Certified Copy of the Income Tax Returns (or) other information were not furnished to him. Though, that alone is not the ground for not interfering with the impugned order, it is to be stated that the parties have already adduced evidence and the case is at the fag end of the trial. When the parties have already adduced sufficient evidence, the Income Tax Returns of the Plaintiff (or) the Defendant cannot be called for. This is all the more so, when the Income Tax Returns (Exs.A.12 and 13) of the Plaintiff for 1996-97 and 1997-98 have been produced. 13. When the trial had already been completed and the Suit is at the fag end of the trial, the Application for issuance of subpoena to the Income Tax Department had been filed, the trial Court had exercised its discretion in refusing to summon the documents. This Court does not find any error on the face of the record to interfere with the impugned orders in exercise of the supervised Jurisdiction of this Court under Article 227 of the Constitution of India. These Revisions have no merit and the same are bound to fail. 14. For the foregoing reasons, the Orders of the VII Assistant Judge, City Civil Court, Madras, made in I.A.Nos. 17138 and 17139 of 2003, are confirmed and these Revision Petitions are dismissed. Consequently, the connected C.M.P.No. 6545 of 2004 in C.R.P.No. 678 of 2004, is also dismissed. In the circumstances of the case, there is no order as to costs. The VII Assistant Judge, is directed to expeditiously dispose of the Suit in O.S.No. 6628 of 1997 in accordance with law.