Central Information Commission
Rahul Sharma vs Department Of Trade And Taxes on 28 October, 2020
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग,मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/DPTAT/A/2018/154778
Shri Rahul Sharma ... अपीलकता/Appellant
VERSUS/बनाम
PIO/Asst. Commissioner (Ward 63),
D/o Trade Taxes, I.P. Estate,New Delhi - 110002
Through: Sh. A K Yadav
PIO/Asst. Commissioner (Ward 71),
D/o Trade Taxes, I.P. Estate, New Delhi - 110002 ... ितवादीगण /Respondent
Date of Hearing : 18.02.2020
Date of Decision- Interim : 19.02.2020
Date of Final Decision : 14.10.2020
Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 04.05.2018
PIO replied on : 01.06.2018 (two replies)
First Appeal filed on : 25.06.2018
First Appellate Order on : 26.07.2018
2ndAppeal/complaint received on : 06.09.2018
Information soughtand background of the case:
The Appellant filed his RTI application dated 04.05.2018 and sought information on two points;
1. Provide the certified copy of sale & Purchase of 2A & 2B form with return original &/or revised (If Any).
2. Provide details of first quarter financial year 2014-15, 2015-16 & 2016- 17 verify that the retailer/whole seller has been paid all the taxes, send with receipt of paid tax details.
(Queries are Verbatim) The PIO (Ward. 63), D/o Trade & Taxes, denied the information citing Section 98 of the DVAT Act, 2004. Further, the PIO (Ward. 71), D/o Trade & Taxes, also denied the information invoking the same provision of DVAT Act, 2004.
Dissatisfied with the reply received from the PIO, the Appellant filed a First Appeal dated 25.06.2018 before the FAA, D/o Trade & Taxes, whereupon the FAA vide order dated 26.07.2018 upheld the reply of PIO and disposed of the First Appeal.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
Both parties are present for hearing.
The parties present for hearing have reiterated their respective contentions and Respondent has simply denied information citing Section 98 of the DVAT Act, 2004. Appellant on the other hand pleads that they have on numerous earlier occasions obtained such information from the Respondent and has produced proof thereof before the Commission while contending that when similar information could be divulged earlier, the denial thereof now is arguable and cannot be accepted as such. The Appellant further averred that the information is sought since irregularities have been observed in the civil works executed and in order to unearth corrupt practices affecting public interest at large.
Interim Decision: 18.02.2020 Upon hearing the parties present for hearing, the Commission notes that the prime issue to be addressed in this case is:
Whether Section 98 of the DVAT Act 2004 prohibits disclosure of any information, contrary to provisions of the RTI Act Before deciding the above issue at hand, the Commission finds it pertinent to discuss the scope and exact provisions of the Section 98 of the DVAT Act, 2004. The provision of the aforementioned section reads as under:
"Section 98: Returns, etc. to be confidential - Delhi Value Added Tax Act 2004 (1) All particulars contained in any statement made, return furnished or accounts or documents produced in accordance with this Act, or in any record of evidence given in the course of any proceedings under this Act, other than proceedings before a criminal court, shall, save as provided in sub-section (3) of this section, be treated as confidential, and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall, save as aforesaid, be entitled to require any servant of the Government to produce before it any such statement, return, account, document or record or any part thereof, or to give evidence before it in respect thereof.
(2) If, save as provided in sub-section (3) of this section, any servant of the Government discloses any of the particulars referred to in sub-section (1) of this section, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to a fine.
(3) Nothing in this section shall apply to the disclosure
(a) of any of the particulars referred to in sub-section (1) of this section for the purposes of investigation or prosecution under this Act or the Indian Penal Code 1860 (45 of 1860) or any other enactment for the time being in force;
(b) of such facts to an officer of the Central Government or any State Government as may be necessary for verification of such facts or for the purposes of enabling that Government to levy or realise any tax imposed by it;
(c) of any such particulars where such disclosure is occasioned by the lawful employment under this Act of any process for the service of any notice or the recovery of any demand;
(d) of any such particulars to a civil court in any suit or proceeding to which the Government or any Value Added Tax authority is a party and which relates to any matter arising out of any proceeding under this Act or under any other law for the time being in force authorising any Value Added Tax authority to exercise any powers thereunder;
(e) of any such particulars by any public servant where the disclosure is occasioned by the lawful exercise by him of his powers under the Indian Stamp Act, 1899 (2 of 1899) to impound an insufficiently stamped document;
(f) of any such particulars to the Reserve Bank of India as are required by that Bank to enable it to compile financial statistics of international investment and balance of payment;
(g) of any such particulars to any officer appointed by the Comptroller and Auditor-General of India for purpose of audit of tax receipts or refunds;
(h) of any such particulars relevant to any inquiry into a charge of misconduct in connection with income-tax proceedings against a legal practitioner or chartered accountant, to the authority empowered to take disciplinary action against members of the profession to which he belongs;
(i) of such particulars to the officers of the Central Government or any State Government for such other purposes, as the Government may, by general or special order, direct; or
(j) of any information relating to a class of dealers or class of transactions, if, in the opinion of the Commissioner it is desirable in the public interest to publish such information.
A comprehensive reading of the provisions of the above section thus reveals that while the Sub Section (1) of Section 98 of the Act classifies information about statement made, return furnished or accounts or documents produced in accordance with this Act as confidential, the Sub Section (3) of the same section provides the scope of disclosure of information in specific cases, including the sub clause j), indicating that in a case where disclosure of information serves public interest, the restriction as laid down in Sub Section (1) shall not apply. Public interest shall thus outweigh the confidentiality clause.
On further reading of the DVAT Act, it is noted that the Section 99 of the Act lays down:
"Section 99: Publication and disclosure of information in respect of dealers and other persons in public interest - Delhi Value Added Tax Act 2004 (1) Notwithstanding anything contained in this Act, if the Government is of the opinion that it is necessary or expedient in the public interest to publish or disclose the names of any dealers or other persons and any other particulars relating to any proceedings under this Act in respect of such dealers and persons, it may publish or disclose or cause to be published or disclosed such names and particulars in such manner as it thinks fit.
(2) ................................................."
Thus the importance of disclosure of information to serve public interest has once again been reinforced by the above Section.
In view of the above position, the Commission notes that the PIO for Ward 71 is absent despite service of hearing notice and has neither deputed any representative nor filed any submissions in this case. Considering, the peculiar position which has been discussed above, it is found imperative that the Respondents are given a chance to substantiate their case. The Commission thus directs the Respondent to submit a more detailed explanation justifying denial of information rather than merely quoting a portion of the DVAT Act. The PIOs viz. Ward -64; Sh. Piyush Joshi; Sh. R K Meena - Ward-71; and Sh. A K Yadav - Ward-63 are granted time of three weeks from the date of issue of this order, to submit their respective explanations for restricting the flow of information, which had been provided to the Appellant on earlier occasion by Sh. Pravesh Ranjan Jha in 2016. The Respondent must submit their explanation before05.03.2020, failing which the Commission shall proceed with the decision on the basis of material available on record and also penal action shall be initiated for non- adherence of the above directions.
Final Decision: 14.10.2020 Pursuant to the above directions, submissions have been received from the PIO/Assistant Commissioner of (Ward - 71)- Sh. R K Meena and PIO/Assistant Commissioner of (Ward - 64)-Sh. Piyush Kumar Dosi. Both the respondents have sent almost identical submissions and cited Section 98(1) of the Delhi Value Added Tax Act, 2004 claiming that all the particulars furnished by the dealers in the returns, statement, accounts or documents in accordance with the DVAT Act are confidential and that while sub-section (3) provides exceptions to the sub- section (1), the case of the Appellant does not fall under any of the exceptions provided under sub-section (3) of section of the DVAT Act and therefore, the information/documents as sought by the appellant cannot be provided.
This reply is a reiteration of the earlier response of the PIO, and is not the detailed explanation justifying denial of information, as sought by the Commission. In spite of a specific direction of the Commission, the respondent has not been able to substantiate why the information cannot be disclosed, in larger public interest, particularly, when similar information had been disclosed on earlier occasions and proof thereof has been produce before the Commission. It is a well established position that merely citing any law does not justify denial of information under the RTI Act, 2005. The RTI Act, 2005 has a clear mandate as specified under Section 8 and 9 for claiming exemption from disclosure of information and respondents have not taken recourse to any of the provisions of this Act. Thus, in the absence of any reasonable cause furnished by the respondent, the Commission is unable to accept the Respondents' stand. It is accordingly held that information as has been sought by the appellant is clearly disclosable, particularly in terms of Section 22 of the RTI Act, 2005, which states that the RTI Act is designed to have an overriding effect on any other law, notwithstanding any inconsistency contained therein.
In the light of the above position, it is hereby directed that the Respondents shall disclose all the information as sought by the Appellant, in terms of the RTI Act, 2005, within four weeks of receipt of this order. Compliance report in this regard must be submitted by the PIO/ACs of all three wards, before the Commission by 20.11.2020, failing which appropriate proceedings shall be initiated as per law, for non-compliance of specific directions of this Commission and violation of the RTI Act, 2005.
The appeal is thus disposed off with these directions.
Y. K. Sinha(वाई. के . िस हा) Information Commissioner(सूचना आयु ) Authenticated true copy (अिभ मािणतस ािपत ित) Ram Parkash Grover (राम काश ोवर) Dy. Registrar (उप-पंजीयक)/ 011-26180514