Central Information Commission
K. S. Ravikumar vs Director General Of Income Tax ... on 17 October, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DGITS/A/2021/604597
K S Ravikumar ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
DDIT (Systems)-1(2),
Directorate General of Income
Tax (Systems), RTI Cell, ARA Centre,
Ground Floor, E-2, Jhandewalan
Extension, New Delhi - 110055. .... ितवादीगण /Respondent
Date of Hearing : 21/06/2022
Date of Decision : 07/10/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 22/10/2020
CPIO replied on : 15/12/2020
First appeal filed on : 01/01/2021
First Appellate Authority's order : 05/02/2021
2nd Appeal/Complaint dated : 11/02/2021
Information sought:
The Appellant filed an RTI application dated 22.10.2020 seeking the following information in regards of the complaint dated 18.09.2020 against PAN AADAK1695H holder KAILASH-BDA APARTMENT OWNERS WELFARE ASSOCIATION:-
1. "Certified copy of all the documents submitted along with PAN application for the allotment of the PAN AADAK1695H.1
2. Certified copy of statements given by the representatives of PAN holder in regards of the enquiry with respect to the complaint dated 18.09.2020.
3. Certified copy of other evidence/documents collected in regards of the enquiry with respect to the complaint dated 18.09.2020.
4. Certified copy of Complete Investigation/Enquiry Report in regards of the enquiry with respect to the complaint dated 18.09.2020.
5. Certified copy of Action Taken Report.
6. Any other documents or information examined/referred to arrive at the conclusion specified in the letter F.No.01/AD(Sys)/PAN related/2020-21 dated 14.10.2020."
The CPIO denied information to the appellant on 15.12.2020 under section 8(1)(j) & 8(1)(e) of the RTI Act, 2005 relying on several decisions of the CIC.
Being dissatisfied, the appellant filed a First Appeal dated 26.12.2020. FAA's order dated 05.02.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video conference.
Respondent: Ramesh Jha, DDIT (Systems)-1(2) & CPIO present through video conference.
The Appellant narrated the factual background of the case as stated in the grounds of the Second Appeal as under:
"The Appellant and his family is residing at the aforementioned flat along with other 307 flats of KAILASH Apartment Complexes sharing common boundary, since March 2015. Ganapati Hegde, M.P.Nagaraj, Prabhakara.T, Sham Bhat and few other residents formed a GROUP based on caste, misled the residents of Kailash Apartments by fraudulently obtaining their signatures that they have registered Kailash-BDA Apartment Owners Welfare Association under the provisions of The Karnataka Apartment Ownership Act 1972 (KAOA for short).2
But, the said Association is UN-REGISTERED and ILLEGAL, not only for violating various provisions of the KAOA and Rules, but also for the reasons that the legal title of the land, building, equipment, structures and the other common areas and facilities within the Kailash Apartment Complex have not been transferred or conveyed to the said Association, it vests with the Bangalore Development Authority. The office bearers of the Association extract extra money from the residents by intimidating, dominating and discriminating between the Kailash Apartments residents and are siphoning off huge amounts of money collected from the residents. There is absolutely no transparency and accountability in the financial transactions and is mired in several IRREGULARITIES. Also, the Association does not hold any REGISTRATION CERTIFICATE to show that it is a legally registered association as per law. Therefore, the Appellant filed a complaint against the President/Secretary of the said Association before the Registrar of the Co-Operative Societies, Ali Asgar Road, Bangalore.
2. The Appellant also filed an complaint with the Income Tax Department at Bangalore on 18.09.2020 that the officer bearers have submitted False documents at the time of making an Application for PAN. The Appellant did not receive a proper enquiry report. Hence, he filed an RTI Application seeking "Certified copy of all the documents submitted along with PAN application for the allotment of the PAN AADAK1695H" among other documents. The said RTI Application was transferred to the present CPIO."
The CPIO reiterated the denial of the information under Section 8(1)(j) & (e) of the RTI Act while emphasised on the objection of the averred association in parting with the information as enunciated in his written submissions as under:
"It is submitted before the Hon'ble Commissioner that applicant desires third party information related to M/s KAILASH-BDA APARTMENT OWNERS WELFARE ASSOCIATION which has expressly objected to provide any information to the applicant vide its letter dated 11.12.2020 (Annexure D), in reply to a letter U/s 11 of the RT1 Act issued on 01.12.2020 (Annexure C).
PAN Data and details related thereto is held by the Income Tax Department in a fiduciary capacity and therefore it cannot be provided to any other person except the PAN holder. In the instant case PAN holder M/s KAILASH-BDA APARTMENT OWNERS WELFARE ASSOCIATION has objected to sharing any details 3 with the applicant. Section 2(n) of the RTI Act defines " Third Party" and reads as under:-
"Section 2(n):- " Third Party" means a person other than the citizen making a request for information and includes a public authority.
From the aforesaid definition it is crystal clear that any person other than the citizen making a request for information can be termed as "third party".
Therefore M/s KAILASH-BDA APARTMENT OWNERS WELFARE ASSOCIATION being a entity other than RTI applicant definitely comes within the definition of "third party". Moreover M/s KAILASH-BDA APARTMENT OWNERS WELFARE ASSOCIATION has denied its consent also by expressly objecting to share any information..."
A long discussion ensued following the submissions of the parties challenging the Appellant's locus standi in the matter, the sum and substance of which was that since the Appellant is not himself the owner of the said society flat in which he is residing, he is not entitled to the rights of the members with respect to the affairs of the association.
The matter was reserved.
Decision:
The Commission based on a perusal of the facts on record as well as from the submissions of the parties during the hearing finds few points for consideration as under:
• The information was originally denied under Section 8(1)(j) & 8(1)(e) of the RTI Act suggesting information being personal in nature and a fiduciary relationship between the Respondent and the assessee being at stake. • At the stage of hearing, the CPIO emphasised on the absence of locus standi of the Appellant deeming the information to be relating a "third- party" without any reference to the "personal" aspect of the information sought for in the RTI Application.
• The reliance of the CPIO on the objection of the Association to the disclosure of the information.
• The right of the Appellant vis-à-vis the membership status of his wife being the owner of the flat in the affairs of the association.4
• At the behest of the Commission, the proposition of the right of the wife being the owner of the flat and thus entitled to the information was not contested by the CPIO during the hearing in a tenable manner except repeatedly questioning the intent and locus standi of the Appellant.
Now, at the outset to address the applicability of Section 8(1)(j) and 8(1)(e) of the RTI Act, this bench relies on certain observations of a Division Bench of the Commission in Appeal No. CIC/BS/A/2016/001091-BJ-Final dated 05.01.2018 as under:
"The Commission took note of the issue regarding the "personal information" held by an individual in its personal capacity and the personal information held by the entities/corporations/trusts in their private capacity. In this context, a reference was drawn on the Hon'ble Delhi High Court decision in Naresh Trehan vs. Rakesh Kumar Gupta and Ors.( 2015) 216 DLT 156 wherein it was held:
'20. It has been contended by the petitioners that the expression "personal information" must also extend to information relating to corporate entities. Inasmuch as they may also fall within the definition of expression "person" under the General Clauses Act, 1897 as well as under the Income Tax Act, 1961. However, I am unable to accept this contention for the reason that the expression "personal information" as used in clause (j) of Section 8(1) of the Act has to be read in the context of information relating to an individual. A plain reading of the aforesaid clause would indicate that the expression "personal information" is linked with "invasion of privacy of the individual". The use of the word "the" before the word "individual" immediately links the same with the expression "personal information".
21. Black's law dictionary, sixth edition, inter alia, defines the word "personal" as under:- "The word "personal" means appertaining to the person; belonging to an individual; limited to the person; having the nature or partaking of the qualities of human beings, or of movable property."
22. A perusal of the above definition also indicates that the ordinary usage of the word "personal" is in the context of an individual human being and not a corporate entity. The U.S. Supreme Court has also interpreted the 5 expression "personal" to be used in the context of an individual human being and not a corporate entity. In the case of Federal Communications Commission v. AT&T Inc: 2011 US LEXIS 1899 the US Supreme Court considered the meaning of the expression "personal privacy" in the context of the Freedom of Information Act, which required Federal Agencies to make certain records and documents publically available on request. Such disclosure was exempt if the records "could reasonably be expected to constitute an unwarranted invasion of personal privacy". The U.S. Supreme Court held that the expression "Personal" used in the aforesaid context could not be extended to corporations because the word "personal"
ordinarily refers to individuals. The Court held that the expression "personal" must be given its ordinary meaning. The relevant extract of the said judgment is as under: "Person" is a defined term in the statute;
"personal" is not. When a statute does not define a term, we typically "give the phrase its ordinary meaning," [Johnson v. United States, 559 U.S., 559 U.S. 133, 130 S. Ct. 1265, 176 L. Ed. 2d 1, 8 (2010)]. "Personal" ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word "personal" to describe them. Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, "I have something personal to tell you," we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, "that's personal." A company spokesman, when asked for information about the company, would not. In fact, we often use the word "personal" to mean precisely the opposite of business related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company's view."
23. In my view, the aforesaid red reasoning would also be applicable to the expression "personal" used in Section 8(1)(j) of the Act. The expression 'individual' must be construed in an expansive sense and would include a body of individuals. The said exemption would be available even to 6 unincorporated entities as also private, closely held undertaking which are in substance alter egos of their shareholders. However, the expression individual cannot be used as a synonym for the expression 'person'. Under the General Clauses Act, 1897 a person is defined to "include any company or association or body of individuals, whether incorporated or not". Thus, whereas a person would include an individual as well as incorporated entities and artificial persons, the expression 'individual' cannot be interpreted to include such entities. The context in which, the expression "personal information" is used would also exclude it application to large widely held corporations. While, confidential information of a corporation is exempt from disclosure under Section 8(1) (d) of the Act, there is no scope to exclude other information relating to such corporations under Section 8(1)(j) of the Act as the concept of a personal information cannot in ordinary language be understood to mean information pertaining to a public corporation."
Moreover, the Commission also examined the nature of fiduciary relationship involved in the instant matter whereby the Respondent denied the information of ITRs under Section 8(1)(e) of the RTI act,2005. The Commission referred to the Hon'ble Supreme Court decision in CBSE v. Aditya Bandhopadhyay (2011) 8 SCC 497 wherein it was held as under:
22. '.... But the words 'information available to a person in his fiduciary relationship' are used in section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with 7 reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer.' Furthermore, the Hon'ble High Court of Gujarat in Rajendra Vasantlal Shah vs. Central Information Commissioner and Ors. AIR 2011 Guj 70 had observed that any statutory body/Institution/association meant to serve public good cannot claim to be working in a fiduciary capacity, and held as under:
'8.4. Respondent No. 4 is a religious charitable Trust, functioning under the Scheme formulated by the District Court, having considerable public importance and registered under the Bombay Public Trust Act, as a religious charitable Trust. Considering its nature and activities, emerging from the objects of the Trust, it can be stated that disclosure of such information is in relation to any public interest of activity. The Trust is engaged, in public activities, disclosure of its statements and accounts of income-tax returns and assessments orders cannot be withheld under Section 8(1)(e) or (j)of the R.T.I. Act.' Further, it will be noteworthy to quote the verbatim objection of the averred Association to the disclosure of the information as submitted to the Commission on 17.06.2022 stating as under:
"This Kailash BDA Apartment Owners welfare Association (KBDAAOWA) is registered under Karnataka Apartments ACT 1972 vide 6933/2015-16 @ sub- Registrar (GOK) on dtd:16.10.2015.
The Registration document along with Bye-laws itself is a 'Certificate' for Registration.
Bangalore Development Authority (BDA), a Govt organization under Govt of Karnataka, a urban Development agency entrusted with formation of housing layouts and construction of multi-storeyed Apartments, and inturn selling to citizens. Kailash 3 BHK Apartments is one such pioneer project by BDA, which contains 308 apartments. BDA after selling the apartments, advised all allottees to form a "Owners Welfare Association" and manage day to day activities of the Kailas Campus. The 308 apartment Owners by virtue of 'Sale deed' becomes the members of the Association. The kith and kin of the members or tenants and all 8 other residents of this campus are not the members and hence have no role in the Association.
1. This Association is registered with Govt of Karnataka.
2. The Association has a democratically elected management committee comprising 31 from within its members which consists EC and GC.
3. Periodical monthly meetings, Annual General Body meetings (AGM) are conducted open and transparently and all majority decisions implemented for the welfare of members and residents.
4. All mandatory and statutory regulations like. IT, GST etc are strictly followed by this Association.
5. To deal with IT subjects this Association had obtained PAN Card from IT Dept by following all basic procedures.
6. Since seven years (2015 to 2022) all procedures are being followed and accepted by all members.
7. Each year Association accounts are audited by a qualified Chartered Accountant. Audit Report along with Accounts statements are circulated to every member of this Association before AGM and gets approvals Hence all details required by IT Dept were submitted and in turn the authorities of IT Dept after thorough scrutiny up held the point of view by this Association by rejecting the demand by Sri. K.S. Ravikumar.
• Next, coming to the Sri. K.S Ravikumar, he has no role in this Association, but continuously 'Poking his nose' in to the activities of this Association. • He claims that he was a Engineer, but seems failed, hence ventured in to Law Profession. This amounts to riding two horses and facing repercussions. • He is unemployed and hence perfect example of 'Idle man's brain devils workshop' • To avoid payment of monthly maintenance charges by Smt. Dr. Netravathi W/o of K S Ravikumar, a member of this Association has provoked Sri. K.S Ravikumar to raise so many false issues, complaints on members of the Association & co-residents etc. Emphasis Supplied • Sri. K.S.Ravikumar has claimed he is a 'Public spirited person', but raising false and concocted complaints, exploiting the SC&ST Atrocities Act', also drawing huge money from the Social Welfare Dept, which provision was made for good purposes. He is declaring or not in his is book of accounts subject to verification from your end.
9• Sri. K.S Ravikumar had complained on many rank and file of police Dept, Electricity Dept, Water supply Dept, Social Welfare dept officials, Association successive committee members, co-residents. Human rights commission members and even to the extent of on judicial officers like Judges too.
• Any information/documents given to him is proned for misutilization. • Smt. Dr. Netravathi a well-educated member of this Association has no capacity to control Sri.K.S.Ravikumar, moreover she herself is found provoking him to do all wrong activities.
8. This Association requests here by to the Hon'ble information commissioner to reject the demand by Sri.K.S. Ravikumar but also invoke all provisions in rules book to tame and control also if possible impose some sort of punishment. So that in future Sri.K.S Ravikumar and/or such natured persons who ever indulge in such activities. Your kind orders should be a sensational and discourage such activities by any unscrupulous persons. Sri. K.S.Ravikumar in his complaint dtd:11.02.2021 to your office and to many other Depts states that "Formed a group based on caste" and he names few and states other residents, the names he mentioned itself belong to different communities. This point alone itself is sufficient to reject out rightly his application. Till today he has not proved this caste group, a 'wild' allegation.
All members of this Association are very well educated, hence the signatures from them cannot be 'Fraudulently' obtained. A registered document of this Association could not be understood by Sri. K.S.Ravikumar, which shows he is 'Half-Baked' and low literate Person. All the legal court cases, Sri.K.S.Ravikumar quoted in his applications are irrelevant and just mooted to mislead the 'commission'. Conclusion:- The learned information commissioner may please pass stringent strictures on Sri.K.S.Ravikumar and save many law abiding institutions, Depts, Agencies, Individuals etc."
A bare perusal of the above contents suggests that there is no argument that is tenable under the RTI Act as the Association appears to have engrossed itself extensively in vile personal attack against the Appellant and the Commission is baffled at the severity of the distasteful remarks made against the Appellant and his wife by the Association, despite the fact that none of these has a bearing to the proceedings under the RTI Act. The Secretary/President Kailash BDA Apartment Owners welfare Association is warned against placing such 10 intemperate arguments before the Commission in the future and to restrict themselves to arguments that are specific to the applicability of the provisions of the RTI Act, in case they wish to defend any of their cases in future.
The RTI Act does not require the RTI applicants to state their purpose for seeking information and therefore the arguments against intent or alleged ill-will of the Appellant has no bearing to the disclosure of information. In this regard, Section 6(2) of the RTI Act provides as under:
"An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him."
Similarly, it is also clarified that the Commission is not going into the merits of any argument of larger public interest touted by the Appellant in the records and the arguments of the Appellant or rebuttal of the Association about the functioning of the association, veracity of its day-to-day activities; finances, audit status whatsoever are extraneous considerations in the facts of the instant case. For further clarity, reference of 'public good' mentioned in one of the dicta (Rajendra Vasantlal Shah vs. Central Information Commissioner and Ors. AIR 2011 Guj 70) relied upon in the division bench decision (supra) of the Commission is only for the purpose of adding perspective in the instant matter as it relates to a resident seeking the income tax records of the 'association' of his own residential society. In other words, the only take away from the aspect of 'public good' in the instant case is that the members of the averred association should least of all have access to the information of the association.
Adverting to the foregoing discussion, it is clear beyond reasonable doubt that there is no invasion of privacy of any individual in the disclosure of the information sought for in the instant RTI Application, similarly, there is no fiduciary relationship between the association and the Respondent office, therefore the invocation of Section 8(1)(j) and 8(1)(e) of the RTI Act by the CPIO is rejected in the matter.
Now, the remaining argument is that the information is treated as "third party"
information albeit without a corresponding exemption of Section 8 of the RTI Act, in which context, if the submissions of the Association is read, it is amusing to note that the Association has itself admitted to the wife of the Appellant being a member of the Association, by virtue of which, she cannot be treated as a third-11
party. Yet, by way of far stretching the interpretation of Section 8(1)(j), if the CPIO meant invasion of privacy of the wife of the Appellant being the owner of the residential flat, then he has adequate recourse to Section 11 of the RTI Act which provides as under:
"11. Third party information.--
(1) Where a Central Public Information Officer or the 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: 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."
Succinctly put, the Association's primary objection to the disclosure of the information to one of their own residents is the conduct and demeanour of the said resident, which in this case is the Appellant. There is no iota of a doubt that there is anything confidential; personal about the information sought for by the Appellant as there is no denying the fact that the Appellant is a resident of the Association by virtue of the relevant society flat ownership of his wife and there is nothing on record to suggest that the husband and wife are in any kind of marital discord to doubt the Appellant's intent from the standpoint of a 'third party' per se.
Therefore, the CPIO is directed to revisit the RTI Application and provide the available and relevant information as sought for therein to the Appellant. In doing so, to allay the apprehensions of the CPIO in the context of the entire "third party" argument, he is at liberty to seek for the consent of the wife of the Appellant i.e (by virtue of being the member of the association as admitted by the Association) as per the procedure laid down under Section 11 of the RTI Act.
12The above directions shall be complied with by the CPIO within 15 days from the date of receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 13