The ITO has the power under s. 131(1) of the IT Act, 1961, r/w O. XIII, r. 10, of the CPC, to call for documents from a magistrate.

R.N. DUTT, J.

1. THIS rule is directed against an order made by the Addl. Chief Presidency Magistrate, Calcutta, making over certain documents seized by the police, to the ITO, Companies Dist. III, 'E' Ward, Calcutta.

2. ON 3rd Aug., 1964, at about 3 p.m. when opposite party No. 1, Kashiram Agarwalla, was removing 9 trunk loads of documents, the police seized them. The same day the petitioner filed a petition of complaint against opposite party No. 1 and his wife, opposite party No. 2, before the Addl. Chief Presidency Magistrate. He directed the petition of complaint to be put up on the next day and on 4th Aug., 1964, he examined the petitioner and then sent it to the police for enquiry and report. The police made an enquiry and submitted a report and thereafter the Addl. Chief Presidency Magistrate summoned opposite parties Nos. 1 and 2 under s. 424 of the IPC. The ITO, Companies District III, 'E' Ward, Calcutta, who has been made opposite party No. 3 in this rule, in the meantime filed an application before the Addl. Chief Presidency Magistrate on 21st Sept., 1964, under s. 131(1) of the IT Act, 1961, r/w O. XIII, r. 10, of the CPC, praying that the seized documents be made over to him for a period of two months for his examination in connection with the assessment proceedings against opposite party No. 1. The Addl. Chief Presidency Magistrate at first permitted him to inspect the documents, and, subsequently, on a further petition from the ITO, he made an order on 9th Oct., 1964, making over the seized documents to the ITO for one month. When opposite parties Nos. 1 and 2 appeared before the Addl. Chief Presidency Magistrate, he transferred the case on 2nd Nov., 1964, to Shri R. Mahapatra, Presidency Magistrate, for disposal. Opposite party No. 1 in the meantime filed an application for reconsideration of the order making over the seized books to the ITO. When the case was transferee, the Addl. Chief Presidency Magistrate recorded that the transferred Court would consider this application. Subsequently, Shri R. Mahapatra rejected this application for the reconsideration on 14th Nov., 1964. The petitioner thereafter obtained this rule on 14th Dec., 1964, and further proceedings were stayed. We are informed that the documents had not as yet been made over to the ITO in compliance with the order of the Addl. Chief Presidency Magistrate dt. 9th Oct., 1964.

Mr. Dutta appearing before us for the petitioner has contended that the ITO made the prayer before the Addl. Chief Presidency Magistrate under s. 131(1) of the IT Act r/w O. XIII, r. 10, of the CPC, but the powers given to the ITO under s. 131(1) of the Act do not include the power conferred on the civil court under O. XIII, r. 10 of the CPC. Sec. 131(1) of the IT Act reads as follows :

"131. (1) The ITO, AAC and CIT shall, for the purposes of this Act, have the same powers as are vested in a Court under the CPC, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely : (a) Discovery and inspection; (b) enforcing the attendance of any person, including any officer of a banking company and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions."

Mr. Dutt submits that under cls. (a) and (c) read together, the ITO has the powers of a civil court under O. XI, r. 14, of the Code, but he has no powers under O. XIII, r. 10, of the Code. This argument cannot be accepted. O. XI, r. 14, confers powers on a civil court to call for documents from a party to the suit. But the civil court has also the power to call for documents from a third person. Under O. XVI, r. 1, the civil court has the power to summon a witness to produce a document. Similarly, under O. XIII, r. 10, the civil courts has the power to call for a document from some other Court. The powers conferred on the ITO under s. 131(1) of the Act have not been specified with reference to particular provisions of the CPC but all the