Central Information Commission
G. Gopi Krishna Chaitanya vs Chief Commissioner Of Income Tax (Cca) , ... on 15 May, 2020
Author: Neeraj Kumar Gupta
Bench: Neeraj Kumar Gupta
केन्द्रीय सच
ू ना आयोग
Central Information Commission
बाबा गंगनाथ मागग,मनु नरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
द्वितीय अपील संख्या/Second Appeal No. CIC/CCITH/A/2018/159229
G. Gopi Krishna Chaitanya ... अपीलकताग/Appellant
VERSUS
बनाम
CPIO, O/o. The Dy. Commissioner ...प्रनतिािी/Respondent
Of Income Tax, Hyderabad.
Relevant dates emerging from the appeal:
RTI : 20-03-2018 FA : 08-05-2018 SA : 27-09-2018
CPIO : 17-04-2018 FAO : 28-05-2018 Hearing: 11-05-2020
ORDER
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), O/o. The Dy. Commissioner Of Income Tax, Hyderabad seeking following information:-
"Copies of the Income Tax Returns along with all enclosures, viz., Profit and Loss Account and its Schedules etc. filed by 'Jal Vayu Vihar House Owners Welfare Association' (formerly known as 'Jal Vayu Apartment Owners Association'), Kukatpally, Hyderabad for the Assessment years 2006-07 to 2017-18 (Financial Years 2005-06 to 2016-17)."
2. The CPIO responded on 17-04-2018. The appellant filed the first appeal dated 08-05-2018 which was disposed of by the first appellate authority on 28-05- 2018. Thereafter, he filed a second appeal u/Section 19(3) of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO u/Section 20 of the RTI Act, 2005 and also to direct him to provide the sought for information.
Page 1 of 7Hearing:
3. The appellant, Mr. G. Gopi Krishna Chaitanya did not attend the hearing and was also not reachable on phone. The respondent could not attend the hearing and was also not reachable on phone. However, the CPIO is exempted on account of the CIC's circular no. CIC/Legal/Corona/2020/32 dated 16-03-2020. Decision:
4. This Commission observes that the matter involves determination of certain legal issues with regard to applicability of the exemption u/Section 8(1)(j) of the RTI Act, 2005 r/w section 2(n) and Section 11 of the RTI Act, 2005. Therefore, this Commission deems it fit to dispose of the 2 nd appeal based on the written submissions/uploaded documents which are taken on record.
5. Leading to the factual matrix of the case, this Commission observes that M/s Jal Vayu Vihar House Owners Welfare Association did not give their consent for disclosing the information to the appellant vide their objection letter dated 12-04- 2018 in response to the notice u/Section 11(1) of the RTI Act, 2005. On this point, the appellant has contended that M/s Jal Vayu Vihar House Owners Welfare Association which is not a 'natural person' cannot be treated as 'third party' u/Section 2(n) of the RTI Act, 2005 and therefore, the information should be disclosed to him since it is a society. In this regard, it is apt to quote 'Section 2(n)' of the RTI Act, 2005 which reads as under:-
"2(n):- "third party" means a person other than the citizen making a request for information and includes a public authority."
6. Section 11 of the RTI Act, 2005 which deals with the 'third party information' reads as under:-
"11. (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:Page 2 of 7
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.
(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision."
7. With regards to Section 2(n) r/w Section 11 of the RTI Act, 2005, this Commission refers to the judgment dated 13-11-2019 of the Hon'ble Supreme Court of India in Civil Appeal No. 10044 of 2010 & Ors. titled as CPIO, Supreme Court of India v. Subhash Chandra Agarwal, wherein, it has been observed as follows:-
"77...The definition of a "third party" includes a public authority. 'Third party information' is information which relates to or has been supplied by any other person (including a public authority) other than the information applicant and has been treated as confidential by such third party."
8. According to section 2(n) of the RTI Act, 2005, 'third party' means a person other than the citizen making a request for information and includes a 'public authority'. Since section 2(n) also includes 'other public authorities', the appellant's contention of 'third party' being only a 'natural person' is devoid of any merit. In view of this, M/s Jal Vayu Vihar House Owners Welfare Association being a 'separate legal entity' other than the appellant and the respondent herein is treated as 'third party' u/Section 2(n) of the RTI Act, 2005.
9. As per Section 11 of the RTI Act, 2005, the moment CPIO puts in motion the third party notice intending to disclose the confidential information relating to or supplied by the third party, he gives a chance to the third party to voice any Page 3 of 7 objections which could be based on the exemptions under the RTI Act, 2005. In this case, the CPIO has accepted the objections raised by the third party and has further formed an opinion not to disclose this information. Henceforth, this Commission proceeds to decide the matter on two counts:- (i) whether the information is exempted and, (ii) whether the appellant has shown any larger public interest in disclosure which outweighs in importance any possible harm or injury to the interests of the third party.
10. With regards to the applicability of Section 8(1)(j) of the RTI Act, 2005 regarding non-disclosure of the Income Tax Returns and the enclosures (such as profit and loss account, its schedules etc.) filed by M/s Jal Vayu Vihar House Owners Welfare Association for the Assessment Years 2006-07 to 2017-18, this Commission refers to the judgment dated 03-10-2012 of the Hon'ble Supreme Court of India in SLP(C) No. 27734 of 2012 titled as Girish Ramchandra Deshpande v. Central Information Commission & ors., wherein, it has been held as under:-
"12. The petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the abovementioned information sought for qualifies to be "personal information" as defined in clause (j) of Section 8(1) of the RTI Act.
13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if Page 4 of 7 the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
14. The details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.
11. With regards to the enclosures filed by M/s Jal Vayu Vihar House Owners Welfare Association in a fiduciary capacity and non-disclosure of information under Section 8(1)(e) of the RTI Act, 2005, this Commission refers to decision dated 02-09-2011 of the Hon'ble Supreme Court of India in Institute of Chartered Accountants of India v. Shaunak H. Satya and Ors. in Civil Appeal NO. 7571 of 2011, wherein, it has been held as under:-
"The use of the words "person" shows that the holder of the information in a fiduciary relationship need not only be a 'public authority' as the word 'person' is of much wider import than the word 'public authority'. Therefore the exemption under Section 8(1)(e) is available not only in regard to information that is held by a public authority (in this case the examining body) in a fiduciary capacity, but also to any information that is given or made available by a public authority to anyone else for being held in a fiduciary relationship. In other words, anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary relationship".
12. The appellant has contended that M/s Jal Vayu Vihar House Owners Welfare Association is a 'society' which performs 'public activity' and therefore, the income tax returns and the enclosures thereof should be disclosed to him. In this context, this Commission refers to the judgment dated 11-06-2015 rendered by the Hon'ble Bombay High Court in Writ Petition No. 8753 of 2013 titled as Shailesh Gandhi v. The Central Information Commission, wherein, it has been observed as follows:-
"16...The Petitioner possibly being aware of the said position has therefore sought to contend that filing of the Income Tax Returns is a public activity. I am afraid the said contention is thoroughly Page 5 of 7 misconceived as filing of Income Tax Returns can be no stretch of imagination be said to be a public activity, but is an obligation which a citizen owes to the State viz. to pay his taxes and since the said information is held by the Income Tax Department in a fiduciary capacity, the same cannot be directed to be revealed unless the pre-requisites for the same are satisfied."
13. The appellant has not established any larger public interest in the matter and hence, in light of the legal principles enunciated in the aforesaid cases, this Commission is of the opinion that the appellant is seeking exempted information which need not be disclosed.
14. With the above observations, the appeal is disposed of.
15. Copy of the decision be provided free of cost to the parties.
Neeraj Kumar Gupta (नीरज कुमार गप्ु ता) Information Commissioner (सच ू ना आयक् ु त) दिनांक / Date: 11-05-2020 Authenticated true copy (अभिप्रमाणित सत्यावपत प्रनत) S. C. Sharma (एस. सी. शमाग), Dy. Registrar (उप-पंजीयक), (011-26105682) Page 6 of 7 Addresses of the parties:
1. The CPIO, O/o. The Dy. Commissioner Of Income Tax, Circle-11 (1) Hyd., Dy. Commissioner I. T. & Nodal CPIO, RTI Cell, Room No-
1012, 10th Floor, Signature Tower, Opp.
Botanical Gardens, Kondapur, Hyderabad.
2. Mr. G. Gopi Krishna Chaitanya Page 7 of 7