Central Information Commission
Prakash Eswanth vs Central Board Of Direct Taxes on 11 November, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.(s) :- CIC/CBODT/A/2018/116015-BJ+
CIC/CBODT/A/2018/124687-BJ+
CIC/CBODT/A/2018/159757-BJ
Mr. Prakash Eswanth
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Under Secretary, (FT&TR - IV (1)
Ministry of Finance, Dept. of Revenue
CBDT (Foreign Tax & Tax Research - I Division)
7th Floor, C - Wing, Hudco Vishala Building
14, Bhikaji Cama Place, New Delhi - 110066
... ितवादीगण /Respondent
Date of Hearing : 06.11.2019
Date of Decision : 11.11.2019
ORDER
RTI - 1 File No. CIC/CBODT/A/2018/116015-BJ Date of RTI application 09.11.2017 CPIO's response 23.11.2017 Date of the First Appeal 15.12.2017 First Appellate Authority's response 18.01.2018 Date of diarised receipt of Appeal by the Commission 14.03.2018 FACTS:
The Appellant vide his RTI application sought information on 04 points regarding the copy of the letter of the ITO, Ward 2 (1) (3), Ahmedabad dated 10.02.2016 referring the Company's case to the Foreign Tax and Tax Research Division, Exchange of Information Cell, M/o Finance, New Delhi for exchange of information under the provision of the India- UAE DTAA; date on which the reference was made by the FT&TR Division New Delhi to Dr. Hamid Nasser Mohamed, Expert Expert, M/o Finance, UAE; copy of the reference made and reply received from the M/o Finance, Dubai (UAE) in response to the reference made, etc. Page 1 of 8 The CPIO, vide its letter dated 23.11.2017 while relying upon the decision of the Commission in File No. CIC/AT/A/2007/00007 dated 10.07.2007, denied disclosure of information under Section 8(1) (j) / 8 (1) (a) & (f) / 8 (1) (h) of the RTI Act, 2005. Dissatisfied by the response of CPIO, the Appellant approached the FAA. The FAA, vide its order dated 18.01.2018 while providing additional clarifications, upheld the CPIO's response.
RTI - 2 File No. CIC/CBODT/A/2018/124687-BJ Date of RTI application 16.09.2017 CPIO's response 13.10.2017 Date of the First Appeal 09.11.2017 First Appellate Authority's response 13.12.2017 Date of diarised receipt of Appeal by the Commission 18.04.2018 FACTS:
The Appellant vide his RTI application sought on 04 points regarding the copy of the letter of the ITO, Ward 2 (1) (3), Ahmedabad dated 10.02.2016 referring the Company's case to the Foreign Tax and Tax Research Division, Exchange of Information Cell, M/o Finance, New Delhi for exchange of information under the provision of the India- UAE DTAA; date on which the reference was made by the FT&TR Division New Delhi to Dr. Hamid Nasser Mohamed, Expert, M/o Finance, UAE; copy of the reference made and reply received from the M/o Finance, Dubai (UAE) in response to the reference made, etc. The CPIO, vide its letter dated 13.10.2017 while relying upon the decision of the Commission in File No. CIC/AT/A/2007/00007 dated 10.07.2007, denied disclosure of information under Section 8 (1) (a) & (f) / 8 (1) (h) of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 13.12.2017 concurred with the response of the CPIO.
RTI - 3 File No. CIC/CBODT/A/2018/159757-BJ Date of RTI application 12.04.2018 CPIO's response 27.04.2018 Date of the First Appeal 29.05.2018 First Appellate Authority's response 28.06.2018 Date of diarised receipt of Appeal by the Commission 28.09.2018 FACTS:
The Appellant vide his RTI application sought on 04 points regarding the copy of the letter of the ITO, Ward 2 (1) (3), Ahmedabad dated 10.02.2016 referring the Company's case to the Foreign Tax and Tax Research Division, Exchange of Information Cell, M/o Finance, New Delhi for exchange of information under the provision of the India- UAE DTAA; date on which the reference was made by the FT&TR Division New Delhi to Dr. Hamid Nasser Mohamed, Expert Expert, M/o Finance, UAE; copy of the reference made and reply received from the M/o Finance, Dubai (UAE) in response to the reference made, etc. Page 2 of 8 The CPIO, vide its letter dated 27.04.2018 while relying upon the decision of the Commission in File No. CIC/AT/A/2007/00007 dated 10.07.2007, denied disclosure of information under Section 8 (1) (a) & (f) / 8 (1) (h) of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 28.06.2018 concurred with the response of the CPIO.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Vishva Padmanabhan Appellant's representative, through VC; Respondent: Mr. Amrit Agrahari, US & CPIO, CBDT, New Delhi in person; and Mr. Prashant Mehulkar, AO, DDO, Ahmedabad through VC;
The Appellant's representative reiterated the contents of the RTI application and stated at the outset that the application was incorrectly rejected on technical ground that it was filed by a Company and not an individual as per Section 3 of the RTI Act, 2005. He referred to the RTI application and stated that the same was filed by the Director of the Company wherein he had also specified his name and that the Board of Directors had also authorized him to seek the information. In support of his contention, the Appellant's representative also relied on the decision of the Commission in J.C. Talukdar v. C.E. (E) CPWD Kolkata (CIC/WB/C/2007/00104 and 105) dated 17.05.2007 and Namita Pattanaik vs PIO, EPFO, Rourkela. While explaining the factual background, the Appellant's representative submitted that the Assessment for the AY 2013-14 in the case of Ikshu Infrastructure Pvt. Ltd. had been completed vide order u/s 143 (3) r.w.s 153 (4) dated 26.12.2016. The time period as per Section 153 (1) of the IT Act for completing the assessment u/s 143 (3) for the AY 2013-14 ended on 31.03.2016. However, the Assessment Officer took the benefit of extended time limit as per Explanation 1 to Section 153 of the IT Act for seeking information on M/s Acara Enterprises FZE, UAE from the concerned foreign tax authority. Subsequently, the Assessment Officer completed the assessment vide order dated 26.12.2016.The Assessment Officer had taken the benefit of extended time limit based on the premise that reference would have been made by the JS, FT&TR Division who is the competent authority under law to make such reference to the foreign counterpart. However, the Assessing Officer is not in possession of any documentation evidencing any such reference made by the competent authority. Thus the validity of the Assessment Proceedings being conducted subsequent to completion of the limitation period hinged on the reference, if any, made by the competent authority and the date of such reference which was also not exempted from disclosure as per Section 8 (1) (a), (f), (j) and (h) of the RTI Act, 2005. Thus, the Appellant's representative stated that they desired the copy of the letter of the ITO, Ward 2 (1) (3), Ahmedabad dated 10.02.2016 referring the Company's case to the Foreign Tax and Tax Research Division, Exchange of Information Cell, M/o Finance, New Delhi for exchange of information under the provision of the India- UAE DTAA; date on which the reference was made by the FT&TR Division New Delhi to Dr. Hamid Nasser Mohamed, Expert, M/o Finance, UAE; copy of the reference made and reply received from the M/o Finance, Dubai (UAE) in response to the reference made, etc. In its reply, the Respondent re-iterated the response of the CPIO/ FAA and stated that the information sought was exempted from disclosure as per Section 8 (1) (a), (f) and (h) of the RTI Act, 2005. Explaining the role of FT&TR Wing of the D/o Revenue, the Respondent stated that their duty and responsibility primarily revolved around receiving requests from Domestic Field Formations for exchange of information from the Revenue Authorities of Foreign Jurisdictions and forwarding the response received from the Foreign Revenue Authorities back to the field formations in order to facilitate efficacious Page 3 of 8 investigations and assessment of tax liability of the concerned Assessee. Thus, the Respondent stated that information sought was sensitive and confidential in nature and that communications between Assessing Officer and the Competent Authority was part of the exchange of information request and thereby also secret/ confidential. With respect to exemption u/s 8 (1) (a) and (f) of the RTI Act, 2005, it was stated that parting of the information would be non-adherence to the provisions of the India UAE Treaty since information was secret/ confidential and that disclosure of information would not only impact this case but would adversely affect other cases as well where information was sought from UAE. This would affect the relationship with UAE and also affect the relationship with other countries wherein similar confidentiality clauses exist in the exchange of information agreements. Hence, denial of information was justified on this ground alone. With respect to exemption claimed u/s 8 (1) (h) of the RTI Act, 2005, a reference was made to the decision of the Commission in Shri Shanker Sharma and M/s First Global Stock Broking vs. DIT (Inv.) II and CPIO, D/o Income Tax, Mumbai to submit that investigation into tax evasion can be said to be over or complete only after the final adjudication about the tax liability had been made after the matter had gone through all the stages of appeals and revisions as well as final decision about prosecuting or not prosecuting that person has been taken by an appropriate authority. During the hearing, the Respondent also stated that in case the Appellant had any apprehension about the procedure adopted in his Assessment, the correct forum to redress the same was the Income Tax Appellate Authority and not the RTI mechanism. In support of their contention, a reference was also made by the Respondent to the decision of the Commission in Mr. Satish Manocha vs. CPIO and US (FT&TR-III(2), CBDT and CPIO and DCIT (OSD) (FT & TR-IV(1), CBDT, New Delhi in CIC/DOREV/A/2017/123446-BJ+ CIC/CBODT/A/2017/123447-BJ + CIC/CBODT/A/2017/123448-BJ+ CIC/CBODT/A/2017/123449-BJ + CIC/CBODT/A/2017/123450-BJ+ CIC/CBODT/A/2017/123453-BJ + CIC/CBODT/A/2017/123464-BJ+ CIC/CBODT/A/2017/123465-BJ + CIC/CBODT/A/2017/123466-BJ+ CIC/CBODT/A/2017/123468-BJ + CIC/CBODT/A/2017/123470-BJ+ CIC/CBODT/A/2017/123471-BJ + CIC/CBODT/A/2017/123472-BJ+ CIC/CBODT/A/2017/123473-BJ + CIC/CBODT/A/2017/123474-BJ+ CIC/CBODT/A/2017/123475-BJ dated 04.05.2018. On being queried by the Commission regarding the argument of the Appellant's representative in CIC/CCITD/A/2018/124409-
BJ+CIC/CCITD/A/2018/124410-BJ+CIC/CCITD/A/2018/124411-BJ+ CIC/CCITD/A/2018/124412-BJ+ CIC/CCITD/A/2018/124413-BJ dated 29.10.2019 regarding the provision existing in the confidentiality clause mentioned in Article 28 of the India-UK DTAA which allows disclosure of information to the persons concerned with Assessment and similar provision included in the Mauritius and Netherlands DTAA, the Respondent submitted that the same cannot be claimed as a matter of right. On being queried by the Commission regarding existence of any provision in the confidentiality clause of the India UAE DTAA which allows disclosure of information to the persons concerned with Assessment, the Appellant's representative feigned ignorance and submitted that at this stage he was only seeking information regarding the date on which representation was made to the Foreign Tax Authority and the copy of the same and not the details of the response received from the Foreign Tax Authority. On being further questioned if any dispute regarding the assessment was pending before a Court/ Tribunal and if yes, whether the information was obtained by the Assessee through the intervention of such Court/ Tribunal, the Appellant's representative submitted that the matter was contested before the Income Tax Appellate Tribunal (ITAT). However, no satisfactory response was offered by him regarding seeking the information through the ITAT.
Page 4 of 8The Commission was in receipt of a written submission from the Appellant's representative (In Appeal No. CIC/CBODT/A/2018/116015-BJ and CIC/CBODT/A/2018/124687-BJ) dated 05.11.2019 wherein it was inter alia stated that the Appellant was denied the information that he was entitled to be informed in the course of assessment proceedings by the Assessing Officer in the ordinary course of justice. The information sought for was in the connection with Appellant's own income tax assessment and by no stretch of imagination the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State relation with foreign State or lead to incitement of an offence. Hence, the information was not exempted u/s 8 (1) (a). Similarly, the information was not something that was received under confidence from a foreign government and hence was not exempted u/s 8 (1) (f). Similarly the information if disclosed would not hamper investigation as envisaged u/s 8 (1) (h) since there was no investigation pending and secondly even if income tax appellate proceeding were considered to be investigation, it was not something that would hamper any investigation. Furthermore, the CPIO has not provided satisfactory reasons to demonstrate that the information was in the nature that it could not be disclosed u/s 8 (1) (h). The Appellant was not asking for source of information but merely information used against him to defend him properly and effectively and not to hamper the investigation.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:Page 5 of 8
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
As regards the information sought in the present matter the Commission referred to its decision in Appeal no. CIC/AT/A/2007/00007 dated 10.07.2007 (Shri Shanker Sharma and M/s First Global Stock Broking Vs DIT (Inv.)-II and CPIO, Department of Income Tax, Mumbai "17. Thus, the term 'investigation' used in Section 8(1)(h), in the context of this Act should be interpreted broadly and liberally. We cannot import into RTI Act the technical definition of 'investigation' one finds in Criminal Law. Here, investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In that sense, an investigation can be an extended investigation. In the case of the Income Tax Department investigation into tax evasion can be said to be over or complete, only after the final adjudication about the tax liability had been made after the matter has gone through all the stages of appeals and revisions as well as a final decision about prosecuting or not prosecuting that person has been taken by an appropriate competent authority. The respondents are, therefore, right in holding that it would be a misnomer to hold that investigation in matters such as this, the moment the Investigating Officer submits his report to the competent authority spells the end of investigation." Furthermore, the Commission in the decision of K.S. Prasad vs SEBI CIC/AT/A/2007/007/00234 had held as under:
"...as soon as an investigation or an enquiry by a subordinate Enquiry Officer in Civil and Administrative matters comes to an end and, the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation. ... which can be truly said to be concluded only with the decision by the competent authority."Page 6 of 8
A reference can also be made to the decision of the bench of the Commission in Shri Arun Kumar Agrawal v. SEBI CIC/SM/A/2012/000196 dated 28.11.2014 wherein it was held as under:
"15. In the present case, final orders are yet to be passed by the competent authority under the SEBI Act. Therefore, the process of investigation against the RIL is still pending before SEBI and it cannot be said the same has reached its conclusion. Hence, the requested information falls under exemption under section 8(1) (h) of the Act.
16. The Commission recognizes the perspective brought out on public interest in the course of the hearing. The appellant had underlined emphatically the dimensions of public interest overriding the protected interest, i.e. the protection given to the 'fiduciary' elements. However, the other side argued that the appellant is overstating the public interest without taking into account that the investigation is still going on. We have, therefore, to await the completion of this investigation. It will not be wise for the Commission to speculate as to what conclusions the SEBI will draw."
A reference was also made to a recent decision of the Commission in a similar matter in File No. CIC/DOREV/A/2017/130648-BJ-Final (dated 24.01.2018). On being queried from the officials appearing on behalf of the FT-TR department, whether the said decision had been challenged before the appropriate forum, it was submitted that they possessed no further intimation in this regard.
Furthermore, the information sought essentially revolved around the various double taxation avoidance agreements ratified by India which was governed by the relevant tax treaty provisions entered between two nations and may prejudicially affect the relations with the Foreign Governments. The Commission referred to the decision of the Hon'ble High Court of Delhi in Ajay Madhusudan Marathe Vs. Respondent: Sanjukta Ray and Ors, W.P. (C) 1464/2013 Decided On: 05.03.2013 wherein in the context of an RTI application seeking Certified Copy of the letter written by the Chief Minister of J & K, Sh. Omar Abdullah to the Prime Minister of India and records pertaining to any action taken it had been held as under:
"7. I have heard the learned counsel for the petitioner. The information sought pertains to a correspondence which emanated apparently from the Chief Minister of JandK, Sh. Omar Abdullah to the Prime Minister of India. Even according to the petitioner, the said letter pertains to the issue of deployment of defence forces in the State of JandK. There is no gain saying that JandK is a sugeneris State within the Union of India in respect of which the respondents would exchange information with State authorities from time having security implications. The background circumstances do point to the fact that the area in respect of which information is sought, could have security implications. The judgment in this regard is best left to the wisdom of the agencies concerned, who are tasked with the responsibility of sifting such information and thereafter arriving at a conclusion one way or the other. In this particular case, the respondents have come to a conclusion that the information sought has security implications. In the absence of any material to the contrary, this court would be slow to interfere with the decision arrived at in that behalf."
The Appellant's representative was not able to contest the submissions of the Respondent or to establish the larger public interest in disclosure which outweighs the harm to the protected interests.
Page 7 of 8DECISION Thus, keeping in view the submissions made by both the parties and in the light of the aforesaid judgments, no further intervention of the Commission is required in the matter.
The Appeals stand disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 11.11.2019
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