Repeal and re-enacted of law.

The question involved is the admissibility of the evidence of one Sri Marar relating to the initials, which he is alleged to have affixed on 17th August, 1957 in some account books (Exhibits D-24 and D-25), which he perused in his capacity as Income-tax Officer, Second Circle, Madras. The question arises because of the provisions of section 54 of the Income-tax Act of 1922 and section 137 of the Income-tax Act of 1961. Section 137 of the Income-tax Act (XLIII of 1961) was omitted from the statute by section 32 of the Finance Act of 1964. Another question which is involved is whether the prohibition, which existed against the Income-tax Officer giving evidence under the provisions of section 54 of the Income-tax Act of 1922 and section 137 of the Income-tax Act of 1961, still continues, having regard to the provisions of section 6 of the General Clauses Act, 1897.

The facts necessary for the disposal of the questions are these. Mrs. Buhari, the first defendant in the suit, C.S. No. 43 of 196?, produced her account books, Exhibits D-24 and D-25, at a late stage, and applied for permission to condone the delay One of the questions for the Court was whether any of the account books could be considered to be genuine. In that connection I happened to come across some initials in the said account books, which purported to be those of an Income-tax Officer, on 17th August, 1957. The initials are at page 43 of the day book (Exhibit D-24) and also find place at page 1 of the corresponding ledger (Exhibit D-25). There are seals of the Income-tax Officer on 17th August, 1957 on the said pages. Though some attack was made by the plaintiffs with respect to the seals, I felt that so far as the initials of the Officer were concerned, their evidentiary value would stand on a higher footing, and, if the accounts were seen by the Officer on 17th August 1957 that would go a long way to establish their genuineness. Accordingly, I permitted the first defendant to examine the Income-tax Officer for the above purpose.

The first defendant summoned the concerned Income-tax Officer, Sri Marar, who is now the Assistant Commissioner of Income-tax. In examination-in-chief he spoke to the fact of his having affixed his initials on 17th August, 1957, and added that he believed that he did so in verifying the assessment of another assessee, Buhari Hotel, as a cross-verification. He was also cross-examined in part. This took, place on 29th April, 1965. In the course of the fross-examination it was felt that, in order to enable the plaintiffs to test the veracity of his evidence, it was necessary to summon the connected assessment records, where he stated he would have noted the fact of summoning and examining the account books of Mrs. Buhari (Exhibits D-24 and D-25). For this purpose a requisition was sent to the Commissioner of Income-tax to give those assessment files to Sri Marar, and the case was adjourned to 30th April, 1965, the last working day before the vacation. On that day, somehow, Sri Marar could not come, and the case came up after the reopening of the Court after vacation. But even on 30th April, 1965, Sri M.P. Subramaniam, learned Counsel for the plaintiffs, brought to my notice the decision of the Supreme Court in Charu Chandra Kundu v. Gurupada Ghosh1, and urged that, having regard to the provisions of the Income-tax Act of 1922 and the Income-tax Act of 1961 the evidence of Sri Marar would be totally inadmissible. I felt that, having regard to the importance of the question, and the fact that the Commissioner of Income-tax also was concerned, it was desirable to hear the arguments of Sri V. Balasubramaniam, Standing Counsel for the Commissioner. I had the benefit of his able arguments, supplemented by the arguments of Sri M.P. Subramaniam, and also the counter arguments of Sri T. Ramaprasada Rao for the first defendant.

The stand of Sri Balasubramaniam, appearing for the Commissioner, is that in view of the provisions of section 54 o