044-SLLR-SLLR-2002-V-2-GULAMHUSSEIN-AND-ANOTHER-v.-COHEN-AND-ANOTHER.pdf
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Sri Lanka Law Reports
{2002] 2 Sri L.R.
GULAMHUSSEIN AND ANOTHERv.
COHEN AND ANOTHER
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA NO. 180/2001DC COLOMBO NO. 3800/SplSEPTEMBER 27, 2001
Civil Procedure Code – Section 104 – Order on party to declare by affidavitthe documents filed with the United States Inland Revenue Services – Are taxreturns privileged documents?
Held:
The tax returns filed with the United States Inland Revenue Services,and the audited accounts without doubt the property of the Governmentof the United States of America – Is beyond the reach of the petitioner-respondents.
It is apparent that these documents are in fact not in the prossessionof the respondents, in which event respondents cannot be required toproduce the documents not in their possession.
Per Udalagama, J.
“I am of the view that tax returns by the very nature are priviledgedocuments and such returns are normally submitted in confidence, in suchinstances the parties are not entitled to as of right to require the opposingparty to tender such documents/copies thereof."
APPLICATION in Revision from the order of the learned District Judge of Colombo.Romesh de Silva, PC with Harsha Amerasekera for the petitioner.
K. Kanag Isvaran, PC with Anil Tittawella for the respondents.
Cur. adv. vult.
CA
Gulamhussein and Another v. Cohen and Another(Udalagama, J.)
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November 15,2001UDALAGAMA, J.
The 1st to 2nd respondents-petitioners by their petition dated 118. 07. 2000 to this court filed this application for revision praying,inter alia, to set aside the order of the learned District Judge dated04. 07. 2000 and to direct the petitioners-respondents to declare byaffidavit the documents called for in the relevant' notice in particularall the tax returns filed with the United States Inland Revenue Servicesand/or copies thereof in the possession of the said petitioners-respondents.
This application made to the court below was rejected by thelearned District Judge by the impugned order journalized on 1004. 07. 2000 (J.E. 55).
When this application was taken up for inquiry by this court todecide the matter of leave, the learned President's Counsel appearingfor both parties moved to tender written submissions.
Considering the written submissions filed thereafter, I am inclinedto the view that the application of the petitioner to the District Courtunder the provisions of section 104 of the Civil Procedure Code todeclare by way of affidavit all tax returns filed with the aforesaid UnitedStates Inland Revenue Services and audited accounts obviouslypertaining to the documents in the custody of the United States Inland 20Revenue Services and without doubt the property of the Governmentof the United States of America, is beyond the reach of the petitioners-respondents.
Besides, it is seen from the affidavit filed by the respondents-petitioners that these documents so required by the petitioners arein fact not in the posession of the respondents, in which event therespondents cannot be required to produce the documents not in their
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possession. This factual position appears to have been accepted bythe learned District Judge and as such this court would be slow tointerfere with such finding of fact.30
I am also of the view that tax returns by their very nature arepriviledged documents and such returns are normally submitted inconfidence. In such instance I would hold that the parties are notentitled to as of right to require the opposing party to tender suchdocuments or copies thereof.
More importantly, these documents are not referred to in therespondents-petitioners pleadings and as such the respondents arenot entitled to an order as prayed for by them.
In the above circumstances I would not interfere with the impugnedorder of the learned District Judge dated 04. 07. 2000 as the said 40order appears to have been based on established principles of law,and subsequent to the proper use of discretion.
Leave to appeal is refused with costs fixed at Rs. 5,250.
NANAYAKKARA, J. – I agree.
Application refused.