Central Information Commission
Hassan vs Chief Commissioner Of Income Tax (Cca) , ... on 27 June, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
िशकायत सं या / Complaint No. / ि तीय अपील सं या / Second Appeal No.:-:-
CIC/CCIKO/C/2018/611640-BJ+
CIC/CCIKO/A/2018/623433-BJ
Mr. Hassan
.... िशकायतकता /Complainant
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Income Tax Officer (HQ & TPS) - 2
O/o Commissioner of Income Tax (Admn. & TPS)
CR Building, IS Press Road, P O Ernakulam North
Kochi - 682018
... ितवादीगण /Respondent
Date of Hearing : 26.06.2019
Date of Decision : 27.06.2019
ORDER
RTI - 1 File No. CIC/CCIKO/C/2018/611640-BJ Date of filing of RTI application 01.12.2017 CPIO's response 05.01.2018 Date of filing the First appeal 06.02.2018 First Appellate Authority's response Not on Record Date of diarised receipt of Complaint by the Commission Nil FACTS:
The Complainant being a Partner of M/s TKH Sons vide his RTI application sought a copy of the partnership deed submitted while applying for the PAN.
The CPIO, vide its reply dated 05.01.2018 while stating that the applicant and the firm were two different PAN bearing entities denied disclosure of information u/s 8 (1) (d) and (e) of the RTI Ac, 2005. Dissatisfied by the response, the Complainant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
Page 1 of 6
RTI - 2 File No. CIC/CCIKO/A/2018/623433-BJ
Date of RTI application 01.12.2017
(mentioned in 2nd
Appeal)
CPIO's response 05.01.2018
Date of the First Appeal 06.02.2018
First Appellate Authority's response 09.03.2018
Date of diarised receipt of Appeal by the Commission Nil
FACTS:
The Appellant being a Partner of M/s TKH Sons vide his RTI application sought a copy of the partnership deed submitted while applying for the PAN.
The CPIO, vide its reply dated 05.01.2018 while stating that the applicant and the firm were two different PAN bearing entities denied disclosure of information u/s 8 (1) (d) and (e) of the RTI Ac, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 09.03.2018 directed the CPIO to furnish a copy of the partnership deed, if the same was in his possession, subject to the production of evidence/ proof to the effect that the Appellant was still a partner in M/s TKH Sons to the satisfaction of the CPIO.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant / Appellant: Absent;
Respondent: Ms. C K. Sajini, ITO (HQ & TPS) - 2 through VC;
The Complainant / Appellant remained absent during the hearing. Mr. Pavanan, Network Engineer NIC studio at Malappuram confirmed the absence of the Complainant / Appellant. The Respondent reiterated the submissions of the CPIO / FAA. It was also stated that despite the instructions of the FAA on 09.03.2018 advising the CPIO to release the information sought by the Complainant / Appellant in the event of production of evidence / proof to the effect, that he was the partner in M/s TKH Sons, he failed to furnish any further proof to this effect. The Commission was in receipt of a written submission from the Complainant dated Nil, (Complaint No. CIC/CCIKO/C/2018/611640- BJ) wherein it was stated that in the Complaint No. CIC/CCIKO/C/2018/611640 dated 08.02.2018 he had submitted that an Appeal was simultaneously preferred to the Appellate authority u/s 19(1). It was subsequently rejected and a Second Appeal No. CIC/CCIKO/A/2018/623433 dated 14.06.2018 was preferred to the Commission u/s 19(3). He further sought exemption from personal appearance and the Complaint preferred against the misuse of power and the contempt of competent authority may be decided on the grounds presented in the Complaint. Since the "satisfaction of the competent authority" referred to in Section 8(1)(d) and Section 8(1)(e) r/w Section 2(e) and the "satisfaction of the Central Public Information Officer or the State Public Information Officer or the Appellate Authority" referred to in Section 8(1)(j) was entirely different, the Complainant further prayed to rule that the Central Public Information Officer or the Appellate Authority shall not surmise or assume that the competent authority was not satisfied, for the purpose of Section 8(1)(d) and Section 8(1)(e), unless a notification issued by the competent authority was in force.
The Commission was also in receipt of a written submission from the Respondent dated 25.06.2019, (Complaint No. CIC/CCIKO/C/2018/611640-BJ) wherein it was stated that the Applicant had not Page 2 of 6 successfully established his part ownership or other relationship to the firm M/s TKH Sons which was constituted 15 years back and that he was still a partner of the firm. It was further submitted that the continued absence of such proof of part - ownership of the firm would continue to render the applicant as third party vis-à-vis the firm (and vice versa), and that the provisions of the RTI Act relating to the concurrence/permission to disclose to be offered by the third party would apply. In the peculiar circumstances of this case, no such concurrence existed on record nor could it be assumed. It was also unclear as to why, assuming but not accepting that the Appellant was a partner in the said firm, the document sought pertaining to the firm in which the Appellant claims to be a partner was not readily available with the Appellant well within his knowledge and reach. Being partner of said firm, this information was supposed to be readily available with the Appellant. In these circumstances, it was requested that the facts may kindly be considered while disposing of the Appeal.
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:
"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.
Page 3 of 6Of 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."
The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the Page 4 of 6 confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
The Commission referred to the judgment of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
"14. The details disclosed by a person in his income tax returns are "personal information"
which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information."
The Hon'ble High Court of Delhi in the decision of Naresh Kumar Trehan v. Rakesh Kumar Gupta in W.P.(C) 85/2010 & CM Nos.156/2010 & 5560/2011 dated 24.11.2014 had observed as under:
"25. Indisputably, Section 8(1)(j) of the Act would be applicable to the information pertaining to Dr Naresh Trehan (petitioner in W.P.(C) 88/2010) and the information contained in the income tax returns would be personal information under Section 8(1)(j) of the Act. However, the CIC directed disclosure of information of Dr Trehan also by concluding that income tax returns and information provided for assessment was in relation to a "public activity." In my view, this is wholly erroneous and unmerited. The act of filing returns with the department cannot be construed as public activity. The expression "public activity" would mean activities of a public nature and not necessarily act done in compliance of a statute. The expression "public activity" would denote activity done for the public and/or in some manner available for participation by public or some section of public. There is no public activity involved in filing a return or an individual pursuing his assessment with the income tax authorities. In this view, the information relating to individual assessee could not be disclosed. Unless, the CIC held that the same was justified "in the larger public interest"
The Hon'ble High Court of Bombay in the decision of Shailesh Gandhi v. CIC and Ors WP 8753 of 2013 dated 06.05.2015 had held as under Page 5 of 6
"16......the said contention is thoroughly misconceived as filing of Income Tax Returns can by no stretch of imagination be said to be a public activity, but is an obligation which a citizen owes to the State viz. to pay his taxes and since the said information is held by the Income Tax Department in a fiduciary capacity, the same cannot be directed to be revealed unless the prerequisites for the same are satisfied.
23...........Since the right to privacy has been recognised as a fundamental right to which a citizen is entitled to, therefore unless the conditions mentioned in Section 8 (1) (j) is satisfied, the information cannot be provided."
The Complainant / Appellant was not present to contest the submissions of the Respondent or to establish the larger public interest in disclosure which outweighs the harm to the protected interests.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, no further intervention of the Commission is required in the matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
The Complaint / Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 27.06.2019 Page 6 of 6