Central Information Commission
Shri Milap Choraria vs Central Board Of Direct Taxes on 15 June, 2009
628MilapChoraria case for Joint Bench Hearing 13 05 1
5/15/2009 11:22:14 Deepak
CENTRAL INFORMATION COMMISSION
Room No.308, B wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
Appeal No. CIC/AT/A/2008/00628
Appellant: Shri Milap Choraria
Public Authority: Central Board of Direct Taxes
Date of Hearing: 13/05/2009
Date of Decision: 15/06/2009
FACTS:-
The background of the matter is that Shri Arvind Choraria son of Appellant Shri Milap Choraria got married with Ms. Sushmita Karnavat in 1996 and two children were born out of the wedlock. Differences arose between the husband and the wife and they started living separately in 2003. Smt. Sushmita Choraria lodged FIR No. 151/2007 at Police Station Shiv Pur, District Hawra (West Bengal), against Arvind Choraria (husband), Milap Choraria (father-in-law), Smt. Sajjan Devi (mother-in-law) and certain other members of the Choraria family. The case was registered under section 498A IPC read with section 3&4 of the Dowry Prohibition Act and Domestic Violence Act etc. on the allegations that FIR named accused forced Smt. Sushmita Karnavat's father Inder Chand Karnavat to give dowry valued at about rupees 50 lacs in the marriage.
2. It is in this context that the Appellant had requested for information relating to year-wise Income and Expenditure shown by his daughter-in-law Smt. Sushmita Karnavat in her Income Tax Returns from 1995 onwards.
3. CPIO vide his order dated 06/02/2008, had refused to disclose information in terms of section 8(1)(d)(e)(g)&(j) of RTI Act. It is noteworthy that the CPIO had heard the third party i.e. Ms. Smt. Sushmita Karnavat, before passing the above mentioned order.
4. Dissatisfied with the decision of the CPIO, the Appellant had filed first Appeal before the Appellate Authority. The Appellate Authority vide order dated 02/04/2008, had upheld the decision of CPIO. 628MilapChoraria case for Joint Bench Hearing 13 05 2 5/15/2009 11:22:14 Deepak
5. Shri Milap Choraria has filed the present Appeal before this Commission against the orders of CPIO and the Appellate Authority.
6. The matter was initially heard by the Bench of Shri M.L. Sharma on 13/01/2009. The Appellant had pleaded that section 8(1)(e) of the RTI Act was not attracted inasmuch as the ITRs are filed under the mandate of law and, therefore, the question of fiduciary relationship between the assessee and Income Tax Department does not arise. It was also his submission that section 8(1)(g) was not attracted as disclosure of information requested for by him was not likely to endanger the life of Smt. Sushmita Karnavat. More importantly, it was Shri Milap Chauraria's say, that he required this information in order to defend himself in the criminal case instituted against him and his entire family by Smt. Sushmita Karnavat.
7. In view of the complexity of the matter and an important point of law being involved, the Chief Information Commissioner was pleased to constitute a Full Bench of five Members, to hear the matter and pass a suitable order.
8. The matter was fixed up for hearing on 13/05/2009. Apart from the Appellant, notices were also issued to Chairman, CBDT; Secretary, Department of Revenue, and the Law Secretary to depute suitable officers to assist the Commission. In the hearing held on 13/05/2005, the following are present:-
Appellant: Shri Milap Choraria
CBDT: Shri A.K. Sinha, CIT, CBDT;
Shri Dinesh Verma, CIT, CBDT.
9. In the written submissions made before the Commission, the Appellant has pleaded that the following points of law should be decided by this Commission:-
"(1) Provision of Section 11 of the Right to Information cannot be applied in respect of any documents including Income Tax Returns and comments submitted therewith by a Tax Payer or any other person under the mandate of the provision of any law?
628MilapChoraria case for Joint Bench Hearing 13 05 3 5/15/2009 11:22:14 Deepak (2) Any Public Authority cannot deny any Information relating to any documents submitted by any Individual or otherwise, when prima-facie it is justifiable that said private party is acted against the Rule of law, or indulged in a criminal activity attracting the public interests on his such acts;
(3) The Information disclosure of which is mandatory under any judgment of Supreme Court, to disclose before a Court of law to justify his any of the claim, exemption from disclosure under Section 8(1), 9 and 11 of under Right to Information Act, 2005, is against the public interests.
(4) Any contrary provision provided by Indian Evidence Act, any Supreme Court Judgment pronounced prior to enactment of the Right to Information Act, 2005, which otherwise obstructing effects against the disclosure of the Information, are overriding effect under Section 22 of the Right to Information Act, 2005."
10. During the hearing, the appellant forcefully pleaded that the FIR got registered against him and the members of his family is a public document and, therefore, the documents requested for by him are in public domain. It is also his plea that information sought by him is disclosable as per his belief disclosure thereof would lead to his exoneration in the criminal case instituted against him and, thus, it would be in larger public interest. He also pleaded that disclosure would out-weigh in importance any possible harm or injury to the interest of the third party. It is also his submission that a public authority cannot deny any information relating to a third party when such third party is acting against the law or has indulged in a criminal activity. As his daughter-in-law has allegedly instituted a false case against him and his family, it would be in larger public interest to disclose the information to him. He has also pleaded that sections 8(1), 9 & 11 of the RTI Act are not applicable in the matter in hand.
11. On the other hand, it is the submission of Shri A.K. Sinha, CIT, CBDT, that disclosure of IT Returns would set a dangerous precedent and open up a pandora's box. Adverting to section 138 of the RTI Act, he submits that this section provides for disclosure of IT Returns by the Commissioner of Income Tax if it is in public interest so to do. The discretion of the CIT is absolute. It is also his submission that it is open to the Appellant to obtain an order from a Court whereupon the Income Tax 628MilapChoraria case for Joint Bench Hearing 13 05 4 5/15/2009 11:22:14 Deepak Authorities would produce copies of the IT Returns before the Court and the Court would then decide whether to disclose them or not. It is his further submission that disclosure of IT Returns is likely to be mis-used by the Appellant or his son to the detriment of Smt. Sushmita Karnawat. His overall submission is that the IT Returns should not be disclosed.
12. The issue of disclosure of Income Tax Returns and other financial assets of the third party has come up before this Commission in a series of cases. It would, therefore, be in order to refer to some of these cases before arriving at a decision in this matter:-
(i) In P.R. Gokul Vs. Commissioner of Income Tax, Kottayaam, (Decision No.110/IC(A)/2006-F.No.CIC/MA/A/2006/00274 th dated 13 July, 2006), the Appellant had sought information regarding the gross income of Shri K. Diwakar Panikar as disclosed in his Income Tax Returns for a certain number of years. The commission had held that disclosure of information sought was exempted u/s 8(1)(e)&(j) of the RTI Act.
(ii) In Smt. Shobha R. Arora Vs. Commissioner of Income Tax,
Mumbai (Decision No.119/IC(A)/2006 -
th
F.No.CIC/MA/A/2006/00220 dated 14 July, 2006), the Appellant had sought copies of the ITRs and balance sheet filed by M/s Eastern International Hotel Limited, Mumbai. In this case also the Commission had held that disclosure of this information was exempted u/s 8(1)(e)&(j) of the RTI Act.
(iii) In Prashant A. Shah Vs. Commissioner of Income Tax, Ahmedabad (F.No. CIC/AT/A/2007/01374 dated 3rd April, 2008), the Appellant had sought copies of IT Returns for certain number of years of certain persons on the ground that they were suspected to be evading income tax. The Commission had dismissed the appeal on the ground that uncorroborated allegation of concealment of income by third parties could not form the basis of 'public interest override' provision of section 8 (i) (j) or section 8 (2) of the RTI Act.
(iv) In Rasik Lal S. Wardia Vs. Department of Income Tax (F.No.CIC/AT/A/2007/01439 dated 9th May, 2008), the Appellant had requested for a copy of the Assessment Order of 628MilapChoraria case for Joint Bench Hearing 13 05 5 5/15/2009 11:22:14 Deepak a particular year of a leading business family. The Commission had dismissed the appeal on the ground that a generalized assertion of public interest without supporting evidence can not be allowed to be cited to revoke exemptions undoubtedly available to this category of information."
(v) In T. Seturaman Vs. commissioner of Income Tax, Tirucherapalli (F.No. CIC/AT/A/2007/00336 dated 15th June, 2007), the Appellant had sought the third party information with which he was having a civil dispute. The Commission had dismissed the appeal and held that the information sought attracted several exemption clauses, including clause (d) and (j) etc.
(vi) In Ms. Neeru Bajaj Vs. Commissioner of Income Tax, Lucknow (F.No.CIC/AT/A2006/00644 dated 21st February, 2007), the Appellant had sought access to the IT assessments of a third party, who was an income tax assessee, on the ground of unearthing suspected tax-evasion by such third party. While dismissing the appeal, the Commission had held that the information sought is 'personal' and belongs to a third party and disclosure thereof is prohibited under section 8 (i) (j) of the RTI Act, especially when it involves no public interest.
13. It is important to mention that, in the cases cited above, the Appellant had sought access to Income Tax Returns and Assessment Orders etc. of the third party on the plea of serving larger public interest by way of exposing alleged tax evasions etc. The present case is slightly different inasmuch as the appellant has taken the plea that he wants to have access to the ITRs of his daughter-in-law Smt. Sushmita Karnawat, with a view to proving his innocence in a criminal case instituted against him and his family. However, the question remains whether disclosure of this information is likely to be in larger public interest.
14. There is no doubt that the information sought by the appellant is third party information. Therefore, the procedure provided in section 11 of the RTI Act is required to be followed in such a matter. In fact, the CPIO had issued notice to Smt. Sushmita Karnawat and sought her objections in the matter. She had strongly opposed disclosure of information. In this view of the matter, the CPIO had refused to disclose information on the ground 628MilapChoraria case for Joint Bench Hearing 13 05 6 5/15/2009 11:22:14 Deepak that such disclosure would not be in larger public interest. The Appellant, however, has pleaded that Smt. Sushmita Karnawat has lodged a false FIR at the Police Station against him, and his entire family and as the FIR is a public document, therefore, the information sought by him falls in public domain. In this context, it would be pertinent to extract proviso appended to section 11 of the Act:-
"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."
The real test in this case is whether disclosure outweighs in importance any possible harm or injury to the interests of Smt. Sushmita Karnawat. In this context, the submission of Shri A.K. Sinha, CIT, CBDT, assumes significance. Shri Sinha has pleaded that disclosing this information would set a dangerous precedent and open up pandora's box. It is also his submission that it is open to the appellant to move the appropriate Court and obtain orders for the production of Smt. Karnawat's IT Returns before it, which the Income Tax Department is duty-bound to do, and then, to decide whether to disclose them or not. The appellant has not taken recourse to this direct course of action for reasons best known to him. Shri Sinha's further submission is that if this information is disclosed, the same may be used to the detriment of Smt. Karnawat by the Appellant or his son and this aspect cannot be totally overlooked in a matter of marital discord.
15. From the above discussion, it would appear that the Income Tax Returns have been rightly held to be 'personal information' exempted from disclosure under clause (j) of section 8(1) of RTI Act by the CPIO and the Appellate Authority; and the appellant herein has not been able to establish that a larger public interest would be served by disclosure of this information. The plea of the appellant that the FIR lodged against him and the members of his family is a public document and, therefore, the information sought by him to defend himself in a criminal case falls in public domain, is misconceived. As mentioned in the proceeding para, above the appellant is not without remedy to protect himself from any act of alleged malicious prosecution. Hence, the decision of Appellate Authority is upheld. Appeal fails.
Dismissed.
628MilapChoraria case for Joint Bench Hearing 13 05 7 5/15/2009 11:22:14 Deepak Heard on 13th May, 2009, and order pronounced on 5th June, 2009.
Sd/- Sd/-
(A.N. Tiwari) (M.A. Ansari)
(Information Commissioner) (Information Commissioner)
Sd/- Sd/-
(M.L. Sharma) (S.N. Mishra)
(Information Commissioner) (Information Commissioner)
Sd/-
(Wajahat Habibullah)
Chief Information Commissioner
Authenticated true copy, Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission (K.L. Das) Assistant Registrar