Central Information Commission
Smt. Mily Ghosh Alias Bijoy Laxmi Ghosh vs Income Tax Department, Jalpaiguri on 21 December, 2009
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No. CIC/LS/A/2009/000626
File No. CIC/LS/A/2009/000659
Dated : 21.12.2009
Appellant : Smt. Mily Ghosh alias Bijoy Laxmi Ghosh
Public Authority : Income Tax Department, Jalpaiguri
Date of Hearing : 10th Sept, 5th Nov, 23rd Nov and 21st Dec, 2009
Date of Decision : 21st, December, 2009
FACTS
It may be recalled that the present appeal was heard by this Commission on 10.9.2009. The proceedings of the day are reproduced below :-
"The matter, in short, is that the Appellant is the daughter of Shri Ranendra Mohan Guha. Her mother's name is Smt. Manashi Guha. Her brother's name is Shri Kumar Guha. A partnership deed was got registered amongst Ranendra Mohan Guha, Kumar Guha(son) and Manashi Guha(wife) in respect of a firm called M/s. R.M. Guha. Shri Mohan Guha Guha and his wife Smt. Manashi Guha have since expired. The only surviving partner now is Shri Kumar Guha. By her letter of 14/02/2007, the Appellant have sought following information from CPIO, viz.,:-
(i) copies of Partnership Deeds in respect of M/s. R.M. Guha, from 1994 onwards;
(ii) copy of Profit and Loss Account and Balance Sheet/Audit Reports from A/Y 1994-95 to A/y 2006-07;
(iii) copy of Profit and Loss Account, Balance Sheet and Capital Account of Shri Kumar Guha from A/Y 2002-03 to A/Y 2006-07;
(iv) copy of Profit and Loss Account, Balance Sheet and Capital Account of Smt. Kaveri Guha, w/o Kumar Guha from A/Y 2002- 03 to A/Y 2006-07;
(v) similar information about Smt. Manashi Guha for the same period;
(vi) copy of Probate/Succession Certificate filed in the aforesaid cases in respect of succession of assets of late Shri Ranendra Mohan Guha and late Smt. Manashi Guha etc.
2. The matter was decided by CIT, Jalpaiguri, vide his order dated 15/03/2007 wherein he refused to disclose information u/s 8(1)(e) of the RTI Act.
3. The first Appeal was decided by CCIT, Jalpaiguri, vide his order dated 30/11/2008 wherein he set aside the order of CPIO declining information u/s 8(1)(e) of the RTI Act but, instead, refused to disclose information u/w 8(1)(j) of the RTI Act.
4. The present Appeal is directed against the orders of the CPIO and the AA.
5. Heard on 10/09/2009. Appellant present along with Advocate Shri Siddhartho Mukhopadhyay. His principal submission is that after the death of Shri Ranendra Mohan Guha and late Smt. Manashi Guha, the appellant and her brother Kumar Guha are the only surviving legal heirs. He has drawn Commission's attention to para 13 of the Partnership Deed registered on 01/04/1994 which reads as follows:-
"That death or retirement shall not dissolve the Partnership, but it may be continued on the legal heir/her(s) of the deceased or successors of the deceased or in the case of retirement, a new partner/partners may be taken on agreed terms and in that event a new Deed shall be drawn up."
It is his submission that the appellant being one of the two surviving legal heirs in M/s R.N. Guha, denial of information either under clause (e) or clause(j) of section 8(1) is not justified. Besides, he has also produced before the Commission a copy of the Will made by late Shri Ranendra Mohan Guha in Bengali language on 10/09/1996 wherein, as per his interpretation, it is stated that after the death of Ranendra Mohan Guha and Manashi Guha, the movable and immovable properties, including business, will be equally divided between the appellant and her brother Shri Kumar Guha. It is, thus, his submission that the appellant has stakes in M/s. R.M. Guha and, therefore, she is entitled for the copies of the requested documents. Advocate Mukhopadhyay has also produced a copy of the dissolution of partnership deed dated 02/04/1998 between Smt. Manshi Guha and Shri Kumar Guha and appellant Smt. Bijoy Laxmi Ghosh alias Mily Ghosh which provides that after the dissolution of the firm called Deshbandhu Brick Works, it will be converted into a proprietorship firm run by her mother Smt. Manashi Guha. The purport of Advocate Mukhopadhyay's submission is to establish that in this business also, the appellant has a stake and she is not a stranger to the matter.
6. The Commission has received a fax message dated 03/09/2009 from Shri M.L. Roy Burman, DCIT(HQ), Jalpaiguri, stating that he has not received a copy of the appeal filed by Smt. Mily Ghosh and has requested for adjournment of the matter.
7. As mentioned hereinabove, there appears to be a family dispute between Shri Kumar Guha and the appellant and the matter is pending in the civil court. The limited issue for consideration before this Commission is whether the requisite information can be provided to the appellant in terms of the provisions of RTI Act. We are of the opinion that it will be expedient to hear not only the Income Tax authorities concerned but also the appellant's brother Shri Kumar Guha before deciding the matter. Hence, the matter is adjourned to 05/11/2009 at 14.30 hrs . Notice be issued to Shri Kumar Guha, resident of Khadimpur Bottola, Balurghat, South Dinajpur (West Bengal-733101).
8. The Registry will ensure that the following documents are also sent to the parties, viz.:-
(i) A copy of the Will dated 10/09/1996;
(ii) Partnership Deed dated 01/04/1994; &
(iii) Deed of Dissolution of Partnership dated 02/04/1998."
2. The matter was subsequently heard on 5.11.2009. The proceedings of the day are reproduced below :-
"This is in continuation of this Commission's Interim Decision dated 10.9.2009. As scheduled, the matter was called for hearing today dated 7.11.2009. Appellant present along with Advocate Siddhartho Mukhopadhyay. It is note worthy that a notice was ordered to be issued to Shri Kumar Guha R/o Khadimpur Bottola, Balurghat, South Dinajpur, along with certain documents and a copy of the order was sent to Shri Kumar Guha on 17.9.2009. A receipt thereof is available in the Commission's records. However, said Shri Kumar Guha has not appeared before the Commission to have his say in the matter. Hence, it is ordered that a fresh notice u/s 11 (1) of the RTI Act may be issued to said Shri Kumar Guha for personal appearance before this Commission on 23.11.2009 at 1230 hrs.
2. It is made clear that if said Shri Kumar Guha does not appear before the Commission personally or through his representative, it will be presumed that he has nothing to say in the matter and the matter will be decided ex-parte.
3. It is also to be noted that Smt Ghosh & Advocate Siddhartho Mukhopadhayay have appeared before the Commission twice at considerableinconvenience and cost to them. Hence, they need not appear before the Commission on the above mentioned date of hearing."
3. The matter was further heard on 23.11.2009. The proceedings of the day are reproduced below :-
"This is in continuation of this Commission's Interim Decisions dated 10.9.2009 & 5.11.2009. As Shri Kumar Guha did not appear before the Commission on 5.11.2009, it was decided to afford him another opportunity of hearing and notice dated 9.11.2009 was issued for his appearance on 23.11.2009.
2. The matter is called for hearing today dated 23.11.2009. Shri. Kumar Guha is not present but has sent a fax message to say that he is bedridden and seeks adjournment for 02 months. It is to be noted that if he could not appear personally, he could have deputed his Counsel to appear before the Commission but he has not done so.
3. Be that as it may, the matter is adjourned for 03 weeks. It will come up for hearing on 21st Dec., 2009 at 1030 hrs. Fresh notices may be issued to Shri Kumar Guha and Commissioner of Income Tax, Jalpaiguri for (CPIO) appearance before the Commission. It is cautioned that if the parties do not appear, the matter will be decided ex-party.
4. The matter is called for hearing today dated 21.12.2009. Appellant present along with her Counsel Shri Siddhartha Mukhopadhyay. It may be recalled that fresh notice was issued to Shri Kumar Guha u/s 11 (1) of the RTI Act for personal appearance before the Commission on 23.11.2009. He, however, did not appear before the Commission on the appointed date and, instead, sent a fax message to say that he was bed-ridden and had sought adjournment for two months. In the proceedings of the day, it was recorded by the Commission that he could have deputed his Counsel to appear before the Commission to facilitate the proceedings but he chose not do so.
5. Notwithstanding the above, another opportunity of hearing was accorded to Shri Kumar Guha for appearing before the Commission on 21st December, 2009, to have his say in the matter. Notice was also issued to Commissioner of Income Tax, Jalpaiguri, in this regard.
6. The Commission notes with regret that despite 03 notices having been issued Shri Kumar Guha has not appeared before the Commission. Nor has he sent any representation regarding today's hearing. It is to be noted that the appellant has appeared before the Commission thrice along with her Counsel to plead her case at a considerable cost and inconvenience to her. It is also to be noted that more than reasonable opportunity has been provided to Shri Kumar Guha to have his say in the matter which, regrettably, he has not availed. Hence, it has been decided to finally dispose of this matter.
7. The appellant Smt Mily Ghosh reiterates her submissions which were noted in para 05 of this Commission's Interim Decision dated 10.9.2009. She would submit that she is one of the two surviving legal heirs in M/s R.M. Guha and M/s Deshbandhu Brick Works and, therefore, denial of information under clauses (e) & (j) of section 8 (1) is not sustainable in law. She has also relied on the Will dated 10.9.1996 of her father, late Ranendra Mohan Guha, as per which movable and immovable assests, including businesses of her father were be equally divided between her and her brother Shri Kumar Guha. It is her plea that being one of the two legal heirs, she is not a third party but a stake holder and is fully entitled for the information requested for in her RTI application dated 14.2.2007.
DECISION
8. We are broadly satisfied that in the facts and circumstances of the case, the appellant Smt Mily Ghosh can not be treated as a third party but a stake holder. We hold that she is legally entitled to obtain copies of the documents requested for by her in RTI application dated 14.2.2007, moreso, when her brother Shri Kumar Guha has not appeared before the Commission to have his say in the matter, despite ample opportunity having been provided to him. In view of the above, the orders of the CPIO and Appellate Authority are set aside. CIT, Jalpaiguri, (CPIO), is hereby directed to provide copies of the documents requested for by the appellant in her RTI application in 04 weeks time.
Sd/-
(M.L. Sharma) Central Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(K.L. Das) Assistant Registrar Address of parties :-
1. The Commissioner of Income Tax O/o Chief Commissioner of Income Tax, CR Building, Naya Basti, Jalpaiguri, West Bengal
2. Shri Kumar Guha R/o Khadimpur Bottola, Balurghat, South Dinajpur, West Bengal-733101
3. Smt Mily Ghosh EE-33/5, Sec-II, Salt Lake City, Kolkata-700091