Central Information Commission
Devesh Singh vs Chief Commissioner Of Income Tax (Cca) , ... on 8 June, 2023
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/CCITC/A/2022/144781
Devesh Singh ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Dy. Director of Income Tax (Investigation)-3,
Gurugram, RTI Cell, 3rd Floor, HSIIDC
Building, Vanijya Nikunj, Phase-V, Udyog
Vihar, Sector-19, Gurugram, Haryana-122016. .... ितवादीगण /Respondent
Date of Hearing : 06/06/2023
Date of Decision : 06/06/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 10/05/2022
CPIO replied on : 13/06/2022
First appeal filed on : 13/06/2022
First Appellate Authority order : 27/06/2022
Second Appeal dated : 20/09/2022
Information sought:
The Appellant filed an RTI application dated 10.05.2022 seeking the following information:1
"Subject Matter:
Requisition proceedings under Section 132A of the Income Tax Act, 1961 of the Applicant pursuant to seizure of cash during Haryana Assembly Election on 17.10.2019 by Police Station, DLF Phase-I, Gurugram and subsequent proceedings undertaken by Investigation Officer, Income Tax Department, Aayakar Bhawan, HSIIDC Building, Udyog Vihar Phase V, Gurugram, Haryana.
Details of Information requested/sought:
You are kindly requested to provide me the information on the following:
1. Request to provide the outcome, Order(s), direction(s) passed in Section 132A of the Income Tax Act, 1961 proceedings in the case of the Applicant (Devesh Singh) having PAN: BLOPS7633B convened in the month of October 2019 by Investigation Officer, Income Tax Department, Government of India, Aayakar Bhawan, HSIIDC Building, Udyog Vihar Phase V, Gurugram, Haryana.
2. Request to provide the statement(s) recorded, documents (including those recovered from the electronic devices, Forensic Image, Form 65B/Hash Value, COC form, etc) as considered/impounded during the said Section 132A proceedings of the Applicant."
The CPIO provided a reply to the appellant on 13.06.2022 stating as under:
"1. In exercise of the powers conferred by sub section (2) of section 24 of RTI Act, 2005(No. 22 of 2005) the Central Government vide its officials notification dated 27/03/2008 in GSA 235(E) issued by Ministry of Personnel, Public Grievance & Pension(Department of Personnel & Training)has placed the office of the Director General of Income Tax (Inv.) In second Schedule of the RTI Act, 2005. The office of the CPI0, i.e DDIT (Inv.)-3, Gurugram is under administrative control of the Director General of Income Tax (Inv.), NWR, Chandigarh, therefore, this office is also exempt from providing the information under the RTI Act, 2005.
2. All the records related to requisition made under section 132(1) of the I.T Act including seized material, statements recorded in case of Sh. Devesh Singh has been handed over to the 0/o Joint Director of Income Tax(Inv.), Aaykar Bhawan, Sector-2, Panchkula."2
Being dissatisfied, the appellant filed a First Appeal dated 13.06.2022. FAA's order dated 27.06.2022 furnished a revised pointwise reply to the Appellant stating as under:
"1. With regards to the information sought by the applicant, I concur with the order passed under RTI Act 2005 by DDIT Gurugram dated 13.06.2022. The O/o DDIT (Inv.), Gurugram is under the administrative control of DGIT (Inv.), Chandigarh which is exempt from furnishing information under RTI Act. Accordingly, the information sought by the applicant cannot be provided.
2.Reply in response to said information sought by the applicant has been provided by the DDIT(Inv.)-3, Gurugram cum CPIO vide letter no. 53 dated 13.06.2022."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Advocate Himanshu Dubey present through intra- video conference.
Respondent: Represented by Sandeep Giri, ITO (Inv.) (Hq.) present through intra- video conference.
The Advocate of the Appellant invited attention of the bench towards his written submission dated 05.06.2023 wherein he raised his arguments regarding the denial of information by the CPIO on the following lines -
"..... 5. It is important to highlight herein that the information sought was with regard to the requisition proceedings under conducted Section 132A of the Income Tax Act, 1961 wrt the Applicant pursuant to the seizure of cash during Haryana Assembly Election on 17.10.2019 by Police Station, DLF Phase-1, Gurugram and subsequent proceedings undertaken by Investigation Officer, Income Tax Department, Aayakar Bhawan, HDIIDC Building, Udyog Vihar Phase V, Gurugram, Haryana.
xxx 3 SUBMISSION :-
I. Right to information is a Constitutional right where providing information is the general rule whereas declining sharing of information is the exception, a In CBSE V Aditya Bandopadhyay, 2011 (8) SCC 497, the Hon'ble Supreme Court, while quoting the earlier decision reported in 2004 (2) SCC 476 (People's Union for Civil Liberties Vs Union of India), held that the "right to information" is a facet of the freedom of "speech and expression", as contained in Article 19(1)(a) of the Constitution of India and such a right is subject to any reasonable restriction in the interest of the security of the State and subject to exemptions and exceptions.
b. Right to Information Act, 2005 (herein after referred to as the Act) was passed by the Parliament as an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority as stated in its preamble.
c. The word 'information' has been defined under Section 2(f) of RTI Act, 2005 as any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports. 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.
d. In Section 2 (j) of RTI Act, 2005 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 the right to:
i. inspection of work, documents, records;
ii. taking notes, extracts, or certified copies of documents or records;
iii. taking certified samples of material:
iv. obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;4
e. The Right to Information is also a constitutional right as the right to free speech also guarantees right to receive and collect and information. Freedom of speech and expression guaranteed under Article 19(1) (a) impliedly includes freedom and right to information as held by Supreme Court in Bennett Coleman & Co. Ys Union of India.
f. Article 51 A of the Constitution imposes certain duties upon the citizens and a citizen with full information is better equipped for the performance of these duties. Thus, right to information is an inherent part of Right to Freedom of Speech and Expression under article 19(1)(a) and the Right to Life and Personal Liberty under Article 21 of the constitution.
g. In background of the above information, the information sought by the Applicant/ Appellant is an inherent part of Right to Freedom of Speech and Expression under article 19(1) (a) and the Right to Life and Personal Liberty under article 21 of the constitution.
II. NECESSITY RECOGNIZES NO LAW:
a. The Appellant/ Applicant herein is seeking information qua his matter. The information sought by the Applicant is pertaining to his requisition proceedings under Section 132A of the Income Tax Act, 1961.
b. The Information sought is crucial for the Appellant/ Applicant to defend himself before court of Law.
c. According to the Principal of adequate disclosure. It is the legal right of the Applicant/Appellant that material relied upon against the Applicant/Appellant must be disclosed to the person to whose prejudice such material may be used for taking adverse action.
d. Without having access to the information, the Appellant/ Applicant is incapable of effectively defend it's case. As held in catena of judgements "the right to fair hearing is a guaranteed right. Every person before an authority exercising the adjudicatory powers has a right to know the evidence to be uses against him." Every person has the right to protect himself.5
e. It is most humbly submitted that the appellant is entitled to the information sought. The expression "human rights" is defined in Section 2(d) of the Protection of Human Rights Act, 1993.
b. It is neither the case of the Respondent that any process of investigation is underway; nor there is any material to indicate that disclosure of the information as sought would impede any such investigation. However, not supplying of the information would definitely impact the Applicant/Appellant in the remedy available to him under the law to defend the xxx IV. WITHOUT PREJUDICE, NO INFORMATION HAS BEEN SOUGHT FROM THE OFFICE OF DGIT (INV) a In exercise of the powers conferred by sub section (2) of the Section 24 of the RTI Act, 2005 (No. 22 of 2005) the Central Government vide its official notification dated 27.03.2008 in GSR 235(E) issued by Ministry of Personnel Public Grievance & Pension (Department of Personnel & Training) has placed the office of the Director General of Income Tax (Inv.) in second Schedule of the RTI Act, 2005.
b. It is most humbly submitted no information has been sought from DGIT (Inv), Chandigarh. The literal rule means that one has to consider what the statute says "literally, i.e its simple plain meaning without any ambiguity. It is said that the words themselves best declare the intention of the law-givers. Nowhere has the statute exempted the O/O of JDIT from providing the information. Accordingly. the present case does not fall under the exemption of the Section 24 of the RTI Act, 2005.
The reply filed by the CPIO and reply of the first appellate authority are issued from the same office. Thus, there is no application of mind which passing of the order by the FAA.
V. NO INFORMATION IS SOUGHT ABOUT THE THIRD PARTY.
a. A man preparing for his self- defense is exercising his basic human right to lead a dignifies life with personal liberty. In catena of judicial pronouncements, the right to a have a fair trial is held to be an embodiment of the Article 14 read with Article 21.6
b. The information sought by the Applicant is crucial to the applicant. And the information sought by the Applicant does not relate to any third party but his own requisition proceedings.
VI. The response received from the Respondent that all the records related to requisition made under section 132(1) of the IT Act including seized material, statements recorded in case of Sh. Devesh Singh has been handed over to the O/O Joint Director of Income Tax (Inv.) Aaykar Bhawan, Sector-2, Panchkula is again not appreciated as Section 6(3) of the RTI Act, 2005 makes it mandatory that where an application is made to a public authority requesting for an information.-
(i) which is held by another public authority; or (ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer. However, in the present case no such attempt was made by the Respondent.
VII. PRINCIPLE OF NATURAL JUSTICE a. Apart from Preamble to the Constitution of India, Art 14 ensures equality before law and equal protection of law to the citizen of India. Art 14 strikes at the root of arbitrariness and Art 21 guarantees right to life and liberty which is the fundamental provision to protect liberty and ensure life with dignity. Art 22 guarantees natural justice and provision of fair hearing to the arrested person. The violation of principles of natural justice results in arbitrariness; therefore, violation of natural justice is a violation of Equality clause of Art. 14.
b. That the information sought by the Appellant is to enable him to successfully prepare his case and deal with the material relied upon by the Authorities while passing the assessment order.
c. That in Appeal No. 07/IC(A)/CIC/2006- Order dated 06-03-2006- In the case of Dinesh Berry Vs CPIO, Bharat Petroleum Corporation Ltd, following has been held:
4. The information sought is required by the appellant to defend his case properly. The information sought by the appellant relate to the tour 7 programme and travel expenses of a public servant, which cannot be treated as personal information.
5. The Commission therefore direct CPIO of BPCL, Mumbai to provide the information sought by the appellant within fifteen days of the issue of this decision.
d. Further, Right to fair hearing and right of granting a fair opportunity to the Appellant is inherent within the principals of natural justice and by avoiding the Appellant an opportunity to rebut the documents/ material relied upon by the authorities while passing the assessment orders is clear cut violation of the principles of natural justice.
e. In the judgment of Oryx Fisheries (P) Ltd. v. Union of India, (2010) 13 SCC, the Hon'ble Apex Court has held the following, the relevant part has been reproduced hereunder-
28. S.R. Das, C.J. speaking for the unanimous Constitution Bench in Khem Chand [AIR 1958 SC 300] held that the concept of "reasonable opportunity" includes various safeguards and one of them, in the words of the learned Chief Justice, is:
(AIR p. 307, para 19) "(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;"
29.Expressions like "a reasonable opportunity of making objection" or "a reasonable opportunity of defence" have come up for consideration before this Court in the context of several statutes. A Constitution Bench of this Court in Khem Chand v. Union of India [AIR 1958 SC 300], of course in the context of service jurisprudence, reiterated certain principles which are applicable in the present case also.
33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it.
f. Furthermore, the Central Information Commission, New Delhi in Appeal No. CIC/BS/A/2016/001441-BJ captioned as 'Ram Avtar Sharma Vs. CPIO & Asstt. Commissioner of Income Tax, Circle-62(1) has also held the following:
810. Keeping in view the facts of the case and submissions made by both the parties, the Commission directs the Respondent to provide the certified copies of the order sheet relating to the Assessment Order passed in the matter, as sought by the Appellant, within 15 days from the date of receipt of this order.
With regard to reasons/basis on which those orders were formulated, the Commission observed that this information sought by him could not be defined as 'information' under Section 2(f) of the RTI Act, 2005 and hence is beyond the purview of the aforesaid Act.
VIII. APPELLANT ALSO HAS THE RIGHT TO INSPECTION a. The Manual of Office Procedure, in three volumes, deals with the administrative aspects, composition and organization of the Income Tax Department. The work allocation and such personnel matters as departmental examinations, confidential reports, vigilance, training and the grievance redressal mechanism. Vol II deals with technical aspects, assessment procedures, widening of tax base, central information branches, refunds, recovery, write off, interest, penalties, prosecution, appeals and revisions. Vol III deals with miscellaneous subjects such as Authority for Advance Ruling. Settlement Commission, search and seizure, internal audit, revenue audit, inspection and important reports.
b. Section 2 (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 the right to inspection of work, documents, records. It also includes the right to obtain certified copies.
c. Even under the Rule 22 of Income Tax the applicant or the Commissioner or an authorised representative may be allowed to inspect the records of the case on making an application in writing to the Secretary provided that only those documents shall be allowed to be inspected which have been relied upon in the proceedings before the Authority. The inspection shall be allowed only in the presence of an officer of the Authority and the applicant may be permitted to make notes of inspection but not to take copies of any document.
9d. Thus, the Statute and Rules provide that the Appellant has the right to inspect the documents pertaining to the assessment proceedings. Thus, once statutorily Appellant is empowered to inspect the records of the case. Thus, in view of Section 2(f) the right to obtain copies of the same can also not be denied, as it is pertaining to his assessment proceedings only.
IX. Hence, CPIO and JDIT have failed to recognize the above principles. Thus, the same are liable to be set aside and the information sought under the RTI Application must be provided forthwith...."
The CPIO submitted that Respondent Public Authority being under the administrative control of DGIT (Investigation) is an exempt organisation as per Section 24 of RTI Act. Thus, the Appellant was informed accordingly.
Decision:
The Commission upon a perusal of records finds no scope of any relief and is in agreement with the reply of CPIO that Respondent Public Authority being under the administrative control of DGIT(Investigation) is an exempt organization as per Second Schedule of Section 24 of the RTI Act. Further, the material on record does not suggest any allegation of corruption or human rights violation in the matter, for which reason, the Commission finds no reason to invoke the proviso to Section 24(1) of the RTI Act to allow the disclosure of information, if any. For the sake of clarity, the relevant provision of Section 24(1) is reproduced as under:
"24. Act not to apply to certain organizations.--
(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:..."
In this context, the Commission is guided by a judgment of the Hon'ble Delhi High Court in the matter of Dr. Neelam Bhalla vs Union Of India & Ors [W.P.(C) 83/2014] dated 03.02.2014, which held as under:
"4. Having heard learned counsel for the petitioner, this Court is of the view that once the CIC has held that DRDO is an exempted organisation under Section 10 24 of RTI Act and the information sought does not pertain to corruption and/or human rights violation, it was not open to the CIC to carve out any further exemption...." [Emphasis Supplied] The said judgment was later upheld by a division bench of the Court in LPA 229/2014 on 11.03.2014.
In view of the above, the contentions raised by the Appellant are rendered inconsequential.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 11