BACHAWAT, J. - (1.) THIS is a petition by Pragdas Mathuradas for the issue of a writ of mandamus against the ITO, Central Circle I, Calcutta, for return of certain books to the petitioner. In connection with the assessment for the Sambat year 2000-2001, notice under s. 22, sub-s. (2), of the Indian IT Act was served upon the petitioner. The return was filed and thereafter notice was issued under s. 23, sub-s. (2), of the Indian IT Act to produce the evidence upon which the petitioner intended to rely on.
(2.) ON the 13th Dec., 1949, two sets of books were produced before the ITO. The first set was for the period Kartic Sambat 2000 up to the Chait Sambat 2001, corresponding with 29th Oct., 1943, up to the 1st April, 1944, and the second set of books was for the period Chait 2001 up to Kartic 2001, corresponding with 2nd April, 1944, up to 17th Oct., 1944. The books were examined. The matter was subsequently adjourned. The matter came up before the ITO again on the 15th Dec., 1949, and was again adjourned until the 16th Dec., 1949. On the later day, the books were again produced and examined and the matter was again adjourned. On the 20th Dec., 1949, the accountant of the petitioner, one Mr. Daga, as also their Adviser, Mr. Banerjee of. S. K. Sawday & Co., came before the ITO and the books of account were again produced. The books were examined and the ITO was of the opinion that there had been concealment of income and the books ought to be retained. There is some dispute as to what really happened on that day, but it seems to be fairly clear that the ITO gave a direction that the books ought to be kept with him and after discussion with Mr. Banerjee on the telephone Mr. Daga left the books with the ITO and a receipt was granted to him. It is said by the ITO that the books were voluntarily left with him, but it is quite clear that there was no question of the petitioner voluntarily leaving the books with the ITO. The ITO purported to give a direction and a person in the position of the assessee must have thought that there was no other option but to leave the books with the ITO. There is also some dispute as to whether on that day an undertaking was given by the petitioner to the effect that he will produce the books whenever called for by the ITO. It seems fairly clear from the correspondence that such an undertaking was offered at least at some stage later on. But I cannot hold on the materials before me that such undertaking was in fact given on the 20th Dec., 1949. On the 20th Feb., 1950, the petitioner wrote to the ITO asking for return of the books and stating that he had no jurisdiction in the matter. Reply was given by the ITO on the 23rd Feb., 1950, stating that the books were part of the records and they must be retained until assessment is completed and also until the appeal, if any, is disposed of, and if no appeal is filed, until the expiry of the period of appeal, and he also offered that the books could be inspected at the office of the ITO if the petitioner wanted to do so. On the 24th Feb., 1950, S. K. Sawday & Co. wrote to the ITO stating that the ITO had no power to retain the books. Reply was given on the 8th March, 1950, by the ITO when he reiterated his stand. On the 13th March, 1950, another letter was written by S. K. Sawday & Co. to the ITO. That letter refers to offer of undertakings made by the petitioner. The letter does say that such offers were made previously but it is to be noticed that in the previous correspondence no such offers are mentioned. On the 18th March, 1950, the order of assessment was made. That order has been filed. The ITO proceeds there upon the basis that there has been an improper concealment of income and he has come to the conclusion that the income of the petitioner upon which he ought to be assessed is over eight lakhs of rupees. On the 23rd March, 1950, the ITO sent a reply to S. K. Sawday and he again stated that the books are open to inspection. On the 3rd April, 1950, appeal against the income-tax assessment order was filed. On the 4th April, 1950, the present petition was moved and a rule nisi was obtained.
(3.) THE basis upon which this petition has been moved is that the ITO has no power in law to retain the books which are produced before him. He has stated that the petitioner has been ordered by the Income-tax Investigation Commission to file a statement of total wealth with list of books. He also states that certain claims would be barred by limitation and he wants the books in connection with such claim. In the affidavit in opposition filed by the ITO, the ITO has stated that the books had been voluntarily left with him, that he had power to retain the books and, therefore, he retained them and gave directions accordingly. He denies that any undertaking was given. He also states that the books may be required for future prosecution. THE books were produced before the ITO because a notice under s. 23, sub-s. (2), was issued upon the petitioner. Such notice calls upon the petitioner to produce or to cause to be produced any evidence upon which he relies in support of the return. Mr. Sen also relies upon s. 37 of the IT Act under which the ITO has for the purposes of Chapter IV the same powers as are vested in a Court under the CPC, 1908, when trying a suit in respect of certain specified matters. One of such specified matters is compelling the production of documents. No other section or rule of the IT Act has been shown to me by Mr. Sen appearing on behalf of the ITO. Mr. Sen has argued that the power to call for production implies power to retain it and he has referred me to certain rules and orders in the CPC which expressly authorises the Court to detain the books after the books are produced in Court. It seems to me that the matter before me must be decided on a proper construction of s. 23 and s. 37 of the IT Act.;