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IN RE LETTERS OF ROGATORY ISSUED BY DIR. OF INSPEC

July 17, 1967

In the Matter of LETTERS of ROGATORY ISSUED BY the DIRECTOR OF INSPECTION OF the GOVERNMENT OF INDIA to take the Testimony of the President or Other Designated Representative of Messrs. Brown Brothers, Harriman & Company, and the President or Other Designated Representative of Chase Manhattan Bank

Sugarman, Chief Judge.


The opinion of the court was delivered by: SUGARMAN

SUGARMAN, Chief Judge.

This action involves the income tax assessments to be made by the Government of India against A. K. Jain for the assessment years 1957-58 through 1960-61. Mr. Jain was Managing Director of a Liechtenstein corporation during those years that was very active in international finance.

 Two of the institutions he and the corporation did business with are Brown Brothers, Harriman & Co. and The Chase Manhattan Bank. The Government of India seeks to examine appropriate representatives of those institutions. It issued letters rogatory to this court directed to those institutions, and on December 14, 1966 David I. Shivitz was appointed a Commissioner to execute the letters rogatory.

 A subpoena duces tecum was issued in the name of the Commissioner and directed to the President or other designated representative of Brown Brothers, Harriman & Co. It moved on February 14, 1967 to quash the subpoena on the grounds that Jain and his corporation did not have notice of the proposed deposition. When it subsequently developed that notice had been delivered to Jain and, through him, to the corporation, Brown Brothers, Harriman & Co. sought leave to withdraw its motion. Said leave was granted by Judge McLean on March 13th.

 Then on March 15th Jain obtained an order to show cause seeking an order to quash the subpoena duces tecum, to stay and enjoin the taking of the deposition, and to vacate the order appointing the Commissioner. That is the pending application.

 The sole question appears to be whether an inquiry to fix tax assessments conducted under the supervision of the Director of Inspection of the Income Tax Department of the Ministry of Finance of the Government of India is "a proceeding in a foreign or international tribunal" required by 28 U.S.C. ยง 1782(a) before the District Court will lend the assistance of its discovery powers.

 The Director of Inspection claims that he is a tribunal under the 1961 Income Tax Act of India because Section 131 vests him with the powers of a court.

 Jain contends that the Director of Inspection and the Calcutta Income-tax Officer are merely investigative officials whose function is to determine if any additional tax is owed by a taxpayer. He claims that that is not a judicial function, nor does any adversary nature attach to it as in the usual court proceeding.

 Section 131 of the Income Tax Act of 1961 reads as follows:

 
"(1) The Income-tax Officer, Appellate Assistant Commissioner, Inspecting Assistant Commissioner and Commissioner shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 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 ...

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