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 powers which the civil court has under the Code have been conferred on the ITO on some specified matters. One such matter is "compelling the production of books of accounts and other documents". Sec. 131(1) must, therefore, be construed to confer on the ITO all the relevant powers which the civil courts have under the CPC regarding the production of books of account and other documents. Since O. XIII, r. 10, confers such power on the civil court to call for documents from other Courts, the ITO too has such powers under s. 131(1) of the Act. We should in this connection refer to the decision of S.K. Sen and K.C. Sen, JJ. in Union of India vs. State (1961) 42 ITR 753 (Cal) : TC60R.122. There in that case the ITO called for certain documents from the Chief Presidency Magistrate under s. 37(1) of the then IT Act r/w O. XIII, r. 10, of the CPC. Sec. 131(1) of the present Act is in the same terms as s. 37(1) of the old Act. Mr. Dutt has, however, submitted that all concerned proceeded in that case on the assumption that the ITO can call for documents from a magistrate under O. XIII, r. 10 of the Code and this point was not specifically raised and considered. It is true that this point was not specifically considered but the decision no doubt indicates the mind of the judges and no objection was raised in this respect on behalf of the assessee that the ITO has not the power under O. XIII, r. 10, of the Code to call for documents from a magistrate. Similar view was also taken by D.N. Sinha, J., as his Lordship then was, in Ganpatrai Rawatmull vs. Collector, Land Customs (1961) 42 ITR 107 (Cal) : TC60R.119. For the reasons we have discussed, we respectfully agree with the views expressed in these cases and we hold that the ITO has the power under O. XIII, r. 10 of the Code. Mr. Dutt has then argues that the documents in question were not part of the record of the case arising out of the complaint of the petitioner and as such the Addl. Chief Presidency Magistrate had no jurisdiction to make over the same to the ITO. We have said that the documents were seized by the police before the complaint was filed and the Addl. Chief Presidency Magistrate took cognizance of the case but we find that the petitioner in his petition of complaint referred to the seizure of these documents from opposite party No. 1 alleging that Opposite party No. 1, being a director of certain companies of which the petitioner was also a director, were secreting the documents and made prayer that the seized books of accounts may be kept in the custody of the Court. It is true that the Addl. Chief Presidency Magistrate made no formal order for treating the seized documents as seized in this case. But when the Addl. Chief Presidency Magistrate took cognizance of the case on the basis of this complaint of the petitioner and Opposite parties Nos. 1 and 2 were summoned in consequence, there is no doubt that the Addl. Chief Presidency Magistrate treated the seized documents as documents seized in this case as prayed for by the petitioner. Moreover, from the subsequent orders made by the Addl. Chief Presidency Magistrate in respect of these documents, it is clear that he was treating these documents as documents seized in this case and subject to his orders. When he directed the documents to be made over to the ITO, the petitioner made an application that, in order to avoid delay in the trial of the case, the ITO might be directed to take possession of the documents after the disposal of the case. That shows that even the petitioner treated the documents as seized in this case and subject to the orders of the Addl. Chief Presidency Magistrate. Then again, we find that after the police seized these documents on 3rd Aug., 1964, the police made a report of this seizure to the Addl. Chief Presidency Magistrate and the Addl. Chief Presidency Magistrate directed the police to keep the documents in its custody. I have been able to trace a copy of this report in the lower Courts records but I have not been able to trace the relevant order made by the Addl. Chief Presidency Magistrate. The learned advocates on either side also tried their best but could not trace that order but I find that the police in a further report submitted to the Addl. Chief Presidency Magistrate on 12th Sept., 1964, specifically said that the seized documents were kept in the police malkhana as per the learned Court's order dt. 3rd Aug., 1964. Presumably, therefore, there is no doubt that the learned magistrate made an order on 3rd Aug., 1964, directing the police to keep the documents in its custody. Thus, in either view of the matter, there is no doubt that the Addl. Chief Presidency Magistrate was in seisin of the seized documents as part of his records and as such he had jurisdiction to make over the documents to the ITO in compliance with his requisition under s. 131(1) of the IT Act r/w O. XIII, r. 10, of the CPC. We do not, therefore, see any ground to interfere with the order made by the Addl. Chief Presidency Magistrate on 9th Dec., 1964, directing the police to make over the seized documents to the ITO. In the result, the rule is discharged. Let the records be sent down at once and the seized documents be made over to the ITO, opposite party No. 3-by breaking open the seal and locks, if necessary. The ITO will return the documents after one month of the receipt thereof and thereafter the case should be heard as expeditiously as possible. Mr. Roy's prayer for stay of operation of this order to enable the petitioner to bring a stay order from the Supreme Court is rejected.;