Central Information Commission
Susmita Deb vs Chief Commissioner Of Customs, Kolkata ... on 26 July, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File No: CIC/CCITK/A/2023/623674, CIC/CCUKL/C/2023/624540,
CIC/CCITK/A/2023/123338.
Susmita Deb .....अपीलकर्ाग /Appellant
....निकायर्कर्ाग /Complainant
VERSUS
बनाम
CPIO,
Income Tax Officer, Ward 54,
Bamboo Villa, 169, AJC Bose Road,
Kolkata-700014.
CPIO,
Income Tax Officer, Range 25,
Aaykar Bhawan Dakshin,
2 No. Gariahat Road, Kolkata -700031. ....प्रनर्वािीगण /Respondent
Date of Hearing : 23.07.2024
Date of Decision : 25.07.2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
The above-mentioned Appeals and Complaint are being clubbed together for
disposal through common order as these are based on similar RTI
applications.
Relevant facts emerging from appeal:
RTI application filed on : 20.01.2023, 24.01.2023
CPIO replied on : Not on record
Page 1 of 9
First appeal filed on : 23.02.2023
First Appellate Authority's order : Not on record
2nd Appeal/Complaint dated : 16.05.2023, 06.05.2023, 25.05.2023
CIC/CCITK/A/2023/623674
CIC/CCUKL/C/2023/624540
Information sought:
The Appellant/complainant filed RTI application(s) dated 20.01.2023 and 24.01.2023 seeking the following information:
The application is submitted as per RTI Act 2005 to provide basic taxable income and property information for below members as the family matter is pending before Honorable Court Raipur case no MJC27 2020 and maintenance Criminal case No 229 2020 Mother in law Mrs. Sandhya Deb PAN xxxxxxxxx In case you don't find Income tax report, please share 26 AS statement for last 5 years. Let me know if you need any additional information.
Having not received any response form the CPIO, the appellant/complainant filed a First Appeal dated 23.02.2023. The FAA order is not on record.
Feeling aggrieved and dissatisfied, appellant/complainant approached the Commission with the instant Second Appeal and complaint.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant/Complainant: Present through video-conference.
Respondent: Shri Sankar Biswas, ITO Ward 54(1)/ CPIO accompanied by Shri Siddarth Das, ITO Ward 25 (1)/ CPIO, Kolkata and Shri A. M. Hasan, Ward 62(1)/ CPIO present through video-conference.
Written submission filed by the Appellant/Complainant is taken on record. She invited attention of the Commission towards the contents of her written submission wherein she inter alia pleaded as follows:Page 2 of 9
"...I have raised the appeals to get the income related document of my husband Mr. Phalguni Deb and mother-in-law Sandhya Deb and father-in- law Dipak Deb.
The family matter is pending for Maintenance and Alimony Infront of Honorable Court Raipur. My husband is residing in USA for last 18 years and hiding his income related information to the honorable Court. He had also transferred huge amount of money with foreign exchange to his parents. However, I don't have any evidences to submit in Court. So, I requested Income Tax department to provide me form 26AS for last 5 years.
I have received Form 26 AS of Dipak Deb from Income Tax department but still I have not received Form 26 AS of my mother-in-law and my husband.
As per RTI rule there is no public interest for getting that information. I am seeking for appropriate justice. However, Income tax officers has not yet provided form 26AS.
I would also like to highlight that Previous appeal 123337 has been raised to get Form 26 AS of Phalguni Deb. However, during the hearing CIC officers had also denied providing Form 26AS of my husband stating that this is private information. Attached the CIC decision. And CIC had instructed to Income tax officers to provide me gross income of husband during the decision. But Income tax officer has not yet provided me any reply after instructed by CIC during decision. I have then raised the appeal to PMO to get the response from CIC.
Also, I would like to highlight that my husband Phalguni Deb has also raised same request (one of the request numbers CCITP/R/E/23/0012) to Pune Income tax department to get form 26AS of mine. And Pune Income Tax office Manjay Kumar Sir has provided him last 5 years of Form 26AS of mine to Phalguni Deb.
So, now there is a big discrepancy that how two CIC officers gave different judgment for the same request? The honorable Court has raised this concern and asked few queries to RTI CIC's. why one officers is providing Page 3 of 9 Form 26As and other CIC officers not? Also after the CIC decision made, why Income tax officers didn't provide the documents even it is blank? Why the CIC decision has not been followed by Income tax officers? There is a delay in Court proceedings for last 5 years now.
Another Point my husband who is working in USA, had worked 7 months in the year 2023 from India and as per my knowledge his income for this year should be taxable and should reflect in Form 26AS.If Income tax officer still says that there is no income information available for Phalguni Deb and there is no Form 26As for Phalguni Deb then they are still lying.
I would request CIC sir, to provide Form 26AS of Phalguni Deb and Sandhaya Deb for last 5 years. Even if there is nothing then also provide us the blank copy of Form 26 AS so that I can submit the same to the Honourable Court."
Appellant/Complainant urged the Commission to direct the CPIO to provide Gross Income and Net Taxable income of her mother-in-law to corroborate evidence in support of her maintenance case.
Respondent reiterated the contents of their reply. However, they agreed to abide by the directions of the Commission.
Decision:
The Commission, after adverting to the facts and circumstances of the case and perusal of the records, notes that the main premise of the instant Appeal/Complaint was denial of information by the Respondent. In response to which, the Respondent replied that since the information sought by the Appellant pertains to personal information of third party, therefore, information being exempted from disclosure has been denied to the Appellant/Complainant under Section 8(1)(j) of the RTI Act.
Here it is noteworthy that although the Commission has been ordering relief in cases where the applicant's spouse alleges marital discord and seeks information i.e. gross and net taxable income of their spouse in pursuance of a Page 4 of 9 case pending for maintenance, in the instant case, this plea cannot be established. The Commission finds no scope to apply the same yardstick as in other matrimonial dispute cases to the instant case for ordering any relief.
In this regard, attention of the Appellant is drawn towards a judgment of the Hon'ble Supreme Court in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794. The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
Emphasis Supplied.
Hence, no cause of action subsists in these cases under the RTI Act for further adjudication.
Notwithstanding the above, the Commission would also like to draw attention of the parties towards a judgement of the Hon'ble Delhi High Court in a case titled Central Public Information Officer vs. Kailash Chandra Moondra, W.P.(C) 340/2023 & CM APPL. 1348/2023, wherein it was categorically held that the Page 5 of 9 Right to Information Act, 2005 and Section 138 of the Income Tax Act, 1961 deal with disclosure of information. While the Right to Information Act is a general law concerning the disclosure of information by the public authorities, Section 138 of the Income Tax Act is a special legislation dealing with disclosure of information concerning the assesses. The relevant extract of the aforesaid order is reproduced hereinbelow:
"...15. Applying the said ratio to the facts of the present case, Section 138 (1)(b) and Section 138 (2) of the IT Act which lays down a specific procedure relating to disclosure of information relating to a third party under the IT Act would override Section 22 of the RTI Act. The information sought for by the Respondent herein is clearly covered by Section 138(1)(b) of the IT Act. The satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is, therefore, necessary before such information can be divulged. That satisfaction cannot be abrogated to any other authority under a general Act for divulging the information sought for.
16. The said judgment has been followed by the Apex Court in Rakesh Kumar Gupta v. Income Tax Appellate Tribunal (ITAT), 2007 SCC OnLine CIC 315.
17. In Chief Information Commr. v. High Court of Gujarat, (2020) 4 SCC 702, when an issue was raised over furnishing of information of certified copies obtained from the High Court of Gujarat by invoking the provisions of the RTI Act, the Apex Court, while resorting to the Gujarat High Court Rules, has observed as under:
"35. The non obstante clause of the RTI Act does not mean an implied repeal of the High Court Rules and orders framed under Article 225 of the Constitution of India; but only has an overriding effect in case of inconsistency. A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non obstante clause, unless there is clear inconsistency between the two legislations. In this regard, we may usefully refer to the judgment of the Supreme Court in R.S. Raghunath v. State of Karnataka [R.S. Raghunath v. State of Karnataka, (1992) 1 SCC 335: 1992 SCC (L&S) 286] wherein, the Supreme Court held as under: (SCC pp. 356-57, para
38).Page 6 of 9
"38. In Ajoy Kumar Banerjee v. Union of India [Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127: 1984 SCC (L&S) 355], Sabyasachi Mukharji, J. (as his Lordship then was) observed thus: (SCC p. 153, para
38).
"38. ... As mentioned hereinbefore if the Scheme was held to be valid, then the question what the general law is and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle "generalia specialibus non derogant". The general rule to be followed in case of conflict between the two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied:
"(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment."
If either of these two conditions is fulfilled, the later law, even though general, would prevail.'"
(emphasis supplied)
18. Applying the said analogy to the facts of the present case, Section 138(1)(b) of the IT Act which specifically states that information relating to an assessee can only be supplied subject to the satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be, would prevail over Section 22 of the RTI Act.
19. The issue raised herein has been settled by a Bench of three Member Bench of the CIC which, in the opinion of this Court, is binding on the Bench which has passed the impugned order. A Bench of three Commissioners of the CIC in G.R. Rawal v. Director General of Income Tax (Investigation), 2008 SCC OnLine CIC 1008, while considering the very same issue has observed as under:
"15. Thus, both the Right to Information Act, 2005 and Section 138 of the Income Tax Act, 1961 deal with disclosure of information. While Right to Information Act is a general law concerning the disclosure of Page 7 of 9 information by the public authorities, Section 138 of the Income Tax Act is a special legislation dealing with disclosure of information concerning the assesses. This Commission in "Rakesh Kumar Gupta v. ITAT, decided on 18th September 2007 decided by a Full Bench, has dealt with the issue of applicability of special law to the exclusion of the general law. The Commission has relied upon the Hon'ble Apex Court's decision in "Chandra Prakash Tiwari v. Shakuntala Shukla -- AIR 2002 SC 2322". The following two paragraphs from the said decision of the Commission are pertinent and quoted below:
37. A special enactment or Rule, therefore, cannot be held to be overridden by a later general enactment or simply because the latter opens up with a nonobstante clause unless there is clear inconsistency between the two legislations -- one which is later in order of time and the other which is a special enactment. This issue came again for consideration before the Hon'ble Apex Court in Chandra Prakash Tiwari v. Shakuntala Shukla -- AIR 2002 SC 2322 and the Hon'ble Supreme Court quoted with approval the Broom's Legal Maxim in reference to two Latin Maxims in the following words:
"It is then, an elementary Rule that an earlier Act must give place to a later, if the two cannot be reconciled - lex posterior derogate priori - non est novum ut priores leges ad posteriors trahantur (Emphasis supplied) - and one Act may repeal another by express words or by implication; for it is enough if there be words which by necessary implication repeal it. But repeal by implication is never to be favoured, and must not be imputed to the legislature without necessity, or strong reason, to be shown by the party imputing it. It is only effected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together2; unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal cannot be implied; and special Acts are not repealed by general Acts unless there be some express reference to the previous legislation, or a necessary inconsistency in the two Acts standing together, which prevents the maxim generalia specialibus non derogant (Emphasis supplied) from being applied. For where there are general words in a Page 8 of 9 later Act capable of reasonable application without being extended to subjects specially dealt with by earlier legislation, then, in the absence of an indication of a particular intention to that effect, the presumption is that the general words were not intended to repeal the earlier and special legislation, or to take away a particular privilege of a particular class of persons."
38. In the aforesaid case, the Hon'ble Apex Court also cited with approval an earlier decision in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey-MANU/SC/0202/1966, in which it was indicated that an earlier special law cannot be held to have been abrogated by mere implication. That being so, the argument regarding implied repeal has to be rejected for both the reasons set out above."
Propriety demanded that the CIC ought to have followed the opinion of the larger Bench, which is binding on it."
With these observations, the instant appeals and complaint are disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Copy To:
The FAA Income Tax Officer, Ward 25, Aaykar Bhawan Dakshin, 2No. Gariahat Road, Kolkata-700031.Page 9 of 9
Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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