Central Information Commission
Mr.Rakesh Kumar Gupta vs Cbdt on 22 June, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/LS/A/2010/000377 dated 12.4.2010
Right to Information Act 2005 - Section 19
Appellant - Shri Rakesh Kumar Gupta
Respondent - Income Tax Department
Decision announced: 21.6.2010
Facts:
By an application of 26.11.08 Shri Rakesh Kumar Gupta of Shalimar Bagh, Ring Road, New Delhi applied to the PIO, Office of Chief Commissioner of Income Tax, Central Delhi seeking the following information:
"1-A. Kindly provide the copies of letter written by juniors officers to CCIT (concerned with above assessee) on the complaint of Applicant (Mr. Rakesh Kumar Gupta) about non payment of reward and helping the tax evaders by way of not taking timely action.
B. Kindly also provide the inspection of files / records dealing with correspondence with the junior authorities of CCIT officers as mentioned in point 1(A) and the complaint of applicant (Mr. Rakesh Kumar Gupta) about non payment of reward and helping the tax evaders by way of not taking timely action.
C. Kindly provide the file number for point 1(B) and whose possession / department, these files are kept. D. Kindly provide copy of file noting of the file referred in point number 1(b).
E. Kindly provide copies of documents requested at the time of inspection of the file referred in point number 1(b).
2-A Kindly provide the copies of letter written by CCIT's (concerned with above assessee - including other officers related to assessee listed above) to CBDT on the complaint of Applicant (Mr. Rakesh Kumar Gupta) about non-payment of reward and helping the tax evaders by way of not taking timely action.
B. Kindly also provide the inspection of files/records dealing with correspondence with the superior / CBDT / junior authorities (of CCIT officers as mentioned in Point 2(A) and the complaint of Applicant (Mr. Rakesh Kumar Gupta) about non payment of reward and helping the tax evaders by way of not taking timely actions.
C. Kindly provide the file number for point 2(B) and whose possession / department, these files are kept.
1D. Kindly provide copy of file noting of the file referred in point number 2(b).
E. Kindly provide copies of documents requested at the time of inspection of the file referred in point number 2(b)."
To this Shri Rakesh Kumar Gupta received a response dated 24.12.09 from CPIO, Shri V. K. Chopra, Asstt. Commissioner of Income Tax, HQ informing him, as follows:
a) "Para 3 is of general nature and is a matter of record.
b) As regards Para 1(A) & 1(C), seven folders are maintained in the office of CCIT (Central) New Delhi. These files are in the custody of ACIT / ITO (Hqrs.), O/o the CCIT (Central) New Delhi.
c) As regards Para 1(B), as per the decision of the CIC, Club Building, Old JNU Campus, New Delhi in the case of Shri Rakesh Kumar Gupta vs. Public Information Officer, C/o Commissioner of Income Tax (Central)-2, New Delhi, you are requested to attend office of the undersigned for inspection of files / records on 15.1.2010 at 11.30 a.m. and copies of the relevant documents / file notings as asked for in Para 1(B) & 1(D) will be provided on payment of statutory fee.
d) As regards Para 2(A), 2(B), 2(C) & 2(D), the reply to these questions has already been given while answering question to Para 1(A), 1(B), 1(C) & 1(D). All the letters received from junior officers and written to senior officers, if any, are part and parcel of the above folders and copies of them will be provided after inspection of records on 15.1.10 on paying statutory fees.
e) As regards Para 1(E) & 2(E), the same are not applicable at present."
Shri Rakesh Kumar Gupta then went in appeal before the Chief Commissioner of Income Tax, Central Delhi, Jhandewalan Extension, New Delhi pleading as follows:
1. "The appellant's appeals are identical.
2. The information was being sought under preamble to the RTI Act and CPIO has to prove that public interest in denial is stronger.
3. Relied upon order of the CIC in the case of Shri R. K. Gupta vs. Addl. DIT (Vigilance) copy of which has been annexed alongwith submissions.
4. The CIC order dated 14.12.09 has been accepted by the department.
5. CIC has held in the order dated 30.10.09 in the case of Shri R. K. Gupta vs. Addl. Director of Income Tax (Vigilance) that Section 8(1) 2
(h) of the RTI Act would only apply if the investigation is under way and the disclosure of information would impede the process of investigation.
No explanation has been given by the CPIO which would show that process of investigation would be impeded."
In his order of 24.12.09, the Chief Commissioner of Income Tax ordered as follows:
"1. The contention of the respondent that the order of the CIC dated 14.12.09 become final and the department has accepted the same is not correct as the department has filed writ petition before the Hon'ble Delhi High Court against the order of the CIC on 281.10 which has been fixed for hearing along with the writ petitions of the other third parties M/s Escorts Ltd. & Ors. on 15.3.10. Hence, the matter has become sub-judiced.
2. The appellant too have pointed out that the matter is sub judiced and is pending for adjudication before Hon'ble Delhi High Court and, therefore, no information should be provided. I agree with the aforesaid plea of the appellants and hold that no information should be provided to the respondent till the matter is decided by the Hon'ble Delhi High Court.
3. The issues raised by the appellant regarding the merits of the case for not providing information to the respondent, would be decided only after the receipt of the order of the Hon'ble Delhi High Court."
The CPIO's arguments before Appellate Authority in this case were as follows:
"It was informed by the CPIO in the order dated 15.1.10 that the appellants have objected to the inspection of documents as required by him on the following grounds:
(i) The correspondence with senior officers regarding the reward claim by Shri Rakesh Kumar Gupta in the case of Escorts Ltd.
in a hierarchical relationship is in nature of a fiduciary entrustment and it should not ordinarily be disclosed as the same is exempt within the meaning of Sec. 8(1) (e).
(ii) The confidential information forwarded to the higher authorities should remain confidential, in public interest. Section 8(2) of the Act stipulates that notwithstanding anything in Official Secrets Act, 1923 or any of the exemptions permissible under Section 8(1), a public authority may allow access to information, if the public interest in disclosure outweighs the harm to the protected interests. The information sought by the respondent is for his own interest (of obtaining the reward 3 from the department on the basis of assessments completed) and the information used therein was already with the department.
(iii) The CIC's decision No. 640 dated 14.12.10 on similar request of the respondent to provide inspection of files / records is not accepted by the department and is being challenged through Writ Petition before Hon'ble High Court, Delhi by the ACIT, Central Circle-3, New Delhi.
(iv) In respect of Dr. Naresh Trehan, the Hon'ble High Court Delhi has passed interim order to stay the impugned order dated 22.12.09 vide Order dated WP© No. 85 of 2010 dated 8.1.10.
(v) The CPIO's decision communicated vide F. No. CCIT/Central/2009-10/1828 dated 11.1.2010 is against the public interest. Disclosing and providing inspection of the records in the light of pending Writ Petition before Hon'ble High Court, Delhi is highly objectionable."
Shri Rakesh Kumar Gupta's prayer in his second appeal before us is:
'1. Issue direction to give the information.
2. Penalize under section 20 for delay in providing information and rejecting inspection on false pretext.
3. Direct Public Authority to maintained records as directed under section 4 of the RTI Act, 2005.
4. Any additional payer as Respected Commissioner found deem fit like compensation etc."
The appeal was heard on 4.6.2010. The following are present:
Appellant Shri Rakesh K. Gupta Respondents Shri Sunil Chopra, Chief Commissioner of IT Central Shri Arun S. Bhatnagar, CIT(C-II), New Delhi. Shri P. Ray Chaudhuri, Advocate Shri V. M. Mahidhar, ACIT, CC-3, New Delhi.
Shri I. P. Bansal, Judicial Member, ITAT Shri V S. Dhanda, ITO HQ (Exemptions) Shri Sunil Chopra, CCIT submitted that the case is before the High Court of Delhi and has been stayed. The points in that case are the same, which amounted to an appeal against the order of the Appellate Authority on the request of the third party. In response Shri Rakesh Gupta contended that the case before the High Court, a copy of which is with us, is regarding disclosure of 4 tax returns. The stay in this case is till 21.7.2010. In the present case, however, Shri Gupta contended that he has not sought tax returns but the action taken on his request regarding non-payment of reward and helping alleged tax evaders by not taking timely action. Therefore, what he has sought is the internal correspondence in the CCIT's Office, which, in his view has resulted in this consequence. A copy of the decision of this Commission in appeal No. CIC/LS/A/2009/000647, which has been stayed by the High Court, was also presented by Chief Commr. of Income Tax. In that decision of 14.12.09, this Commission has held as follows:
"The Commission concludes that no case has been made showing that any of the exemption clauses apply to the information sought by the appellant. The onus to prove that a denial of information was justified is on the PIO as per Section 19(5) of the RTI Act. Though it is not necessary, the appellant has also shown that a larger public interest of increasing public revenue and reducing corruption may be served by disclosure of the information, which would outweigh any harm to any protected interest.
The Appeal is allowed.
The PIO is directed to provide the inspection of the records and also the other information sought by the appellant before 15 January 2009. The Respondent is further directed to send a copy of this order to the Third parties immediately."
In this case the information sought by appellant Shri Rakesh Gupta was, as below:
"All records available with the income tax department including assessment records of all the levels with regard to:
1 1. Escorts Limited AY (1998-99 to 2005-2006) 2 2. Mr. Rajan Nanda AY (1998-99 to 2005-2006) 3 3. Escorts Heart Institute & Research Centre Chandigarh (Society) AY (2001-2002) 4 4. Escorts Heart Institute & Research Centre Delhi (Society) AY (1998-99 to 2001-2002) 5 5. Dr. Naresh Trehan AY (1998-99 to 2005-2006) 6 6. Escorts Heart Institute & Research Centre Limited Chandigarh AY (2000-2001 to 2005-2006) 7 7. Big Apple Clothing (P) Limited AY (1998-99 to 2005-2006) 8 8. AAA Portfolio (P) Limited (1998-99 to 2005-2006) 5 Required:
1 1. Inspection of all records in above respect. 2 2. Kindly provide the copies of documents mentioned at the time of inspection.
3 3. Kindly provide the officers (from assessing officers to CCIT), who are the officers to take action on "Tax Evasion Petition"
given by me from 01/08/2008 till date.
In this matter, the CCIT also presented copies of the order of the High Court of Delhi on various WPs, namely WP( C) No. 202/2010, WP( C) No. 206/2010, WP( C) No. 207/2010, WP( C) No. 214/2010, WP( C) No. 251/2010 in which by order of 15.3.2010, Hon'ble S. Murlidhar J. has ordered as follows:
"1. Learned Counsel appearing for the Respondent states that he needs two weeks time to file a reply.
Rejoinder thereto, if any, be filed within two weeks. Thereafter,
2. List on 21st July, 2010
3. Interim orders to continue"
In the case before us we have also received written arguments by e-mail from appellant Shri Rakesh Kumar Gupta, in which he has submitted as follows:
1. Nothing is said by the opposite parties the effect on Government revenue due to delay tactics in providing information, which should be given to the applicant under Section 4 (1) c & d of RTI act. (about the action / inaction on Applicant's complaint.) AND the public interest involved in the case.
2. My case is covered fully Under the Bhagat Singh (better known as DGIT Vs CIC Delhi High Court decision.) case approved up to the Supreme Court of India. As per this order denial should be strictly as per Section 8(1)/9 of RTI Act, 2005. Therefore, more likely objection raised by the opposite party to deny the information is Section 8(1) (b) of the RTI Act, 2005.
Basic Rules framed for interpreting the RTI Exemption by the Delhi High Court in the Bhagat Singh case (WP(C) No.3114/2007 Date of decision: December 03, 2007 BHAGAT SINGH (Petitioner) Versus CHIEF INFORMATION COMMISSIONER and ORS. Central Information Commission File Ref: Appeal No.35/IC (A)/06- F. No.CIC/MA/A/2006/00108 Dated, the 8th May, 2006) to while applying the exemption clause. Justice S. Ravindra Bhat, J.
Rule 1: As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold 6 the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein. (From Para 12 Page 6 of the order) Rule 2: Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself.
(From Para 13 Page 6 of the order) Rule 3: A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms...
Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted.
(From Para 14 Page 6 of the order)
3. on this argument(stay by the Court) , there is direct High Court decision that directed that information should be given even after stay on information giving by the Supreme Court of India. Full copy of decision is available on CIC website under the heading High Court decisions. Direct Decision of CIC and the High Court in favour of Applicant. In The High Court Of Punjab and Haryana at Chandigarh C.R. No. 1051 of 2001. - Date of Decision: 29.1.2006. Punjab Public Service Commission. Versus Rajiv Kumar Goyal.) in favour of applicant. This appeal is pending with Central Information Commission to decide the matter.
4. Relevant portion of the decision is Brief Facts of the case.
Applicant applied inspection and copies of record as per provisions of Order 11 Rule 14 CPC, was allowed by court. Public Authority obtains the stay order from Supreme Court of India on the decision to allow inspection and copies. When the Applicant applied under the RTI Act, 2005 Public Authority opposes the same as information is exempted under Section 8(1) (b) of RTI Act, 2005.
7Punjab & Haryana High Court allowed the information even after the stay order of the Supreme Court on disclosure of information as per provisions of Order 11 Rule 14 CPC With this, appellant has attached a copy of the order of the High Court of Punjab & Haryana at Chandigarh in CR No. 1051/2006 dated 21.9.06 - Punjab Public Service Commission vs. Rajiv Kumar Goyal, in which learned Hemant Gupta J. has come to the following conclusion.
"A perusal of the order passed by the Hon'ble Supreme Court would show that the Hon'ble Supreme Court has stayed operation of the aforesaid orders of this Court permitting inspection but there is no order of the Hon'ble Supreme Court which prohibits the Commission to furnish information under the Act. Consequently, there is no exemption available to the petitioner in terms of Section 8(1) (b) of the Act. In view of the above, I do not find any merit in the revision petition. Hence the present revision petition is dismissed. However, it is directed that the information sought by the plaintiff vide Annexure P.4 except documents at Serial No. 8 thereof, be supplied to the plaintiff in terms of the provisions of the Act on soliciting the necessary fee in terms of the Act. The amount of fee shall be communicated to the plaintiff within one month from today."
DECISION NOTICE The gist of this case lies in appellant Shri Rakesh Kumar Gupta seeking information on why his complaint regarding non-payment of reward, when in his view he has identified tax evaders, has not been acted upon. His argument has been that what stands stayed by the Hon'ble High Court is not the information that he has sought. Copy of the Stay which has been issued by High Court of Delhi in WP( C) No. 2022/2010 - Escorts Heart Institute & Research Centre vs. Rakesh Kumar Gupta W.P.( C) No. 206/2010 Escorts Heart Institute vs. R. K. Gupta, W.P.(C ) No. 207/2010 Rajan Nanda vs. Rakesh Kumar Gupta, W.P.( C) No. 251/2010 Portfolio P. Ltd. & Anr. Vs. Rakesh Kumar Gupta has indeed been stayed, as quoted by us above. The decision, which is stayed is that of this Commission in CIC/LS/A/2009/000647 in which the information sought was, as quoted at length above, inspection of records available with the Income Tax Department regarding various organizations that are in appeal and 8 have received the stay. In that case, by the decision of this Commission of 14.12.09, the PIO had been directed to provide the inspection of these records. In the present case, the only inspection that has been sought is that of files and records of correspondence among officers dealing with the complaint of Shri Rakesh Kumar Gupta, appellant. This request then has, therefore, little to do with the appeal before the Hon'ble Delhi High Court. The order of the Chief Commissioner of Income Tax in the present case has relied wholly on the Writs before the High Court, which stayed the order of 14.12.09. In the present case what has been argued is that correspondence with Senior Officers regarding the reward claimed by Shri Rakesh Kumar Gupta is part of a hierarchical relationship and is, therefore, exempt u/s 8(1)(e).
On this matter, we have a definitive ruling regarding the application of sec. 8(1)(e) in the decision of Hon'ble Ravindra Bhat, J. in W.P. (Civil) No. 288/2009
- Supreme Court of India vs. Subhash Chandra Agrawal. This decision has also been relied upon in subsequent decisions of the Delhi High Court. In his judgment in WP(C) 228/2009, CPO Supreme Court of India vs. SC Agrawal & Anr. Ravindra Bhat J has discussed the concept of fiduciary relationship in some detail. The HC ruling in the above case is as follows:
"54. The petitioners argue that assuming that asset declarations, in terms of the 1997 constitute "information" under the Act, yet they cannot be disclosed - or even particulars about whether, and who made such declarations, cannot be disclosed - as it would entail breach of a fiduciary duty by the CJI. The petitioners rely on Section 8 (1) (f) to submit that a public authority is under no obligation to furnish "information available to a person in his fiduciary relationship". The petitioners emphasize that the 1997 Resolution crucially states that:
"The declaration made by the Judges or the Chief Justice, as the case may be, shall be confidential."
The respondent, and interveners, counter the submission and say that CJI does not stand in the position of a fiduciary to the judges of the Supreme Court, who occupy high Constitutional office; they enjoy the same judicial powers, and immunities and that the CJI cannot exercise any kind of control over them. In these circumstances, there is no "fiduciary" relationship, least of all in relation to making the asset declarations available to the CJI, who 9 holds it because of his status as CJI. It is argued that a fiduciary relationship is created, where one person depends, on, or entrusts his affairs to 55. It is necessary to first discern what a fiduciary relationship is, since the term has not been defined in the Act. In Bristol & West Building Society v. Mathew [1998] Ch 1, the term "fiduciary", was described as under:
"A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence."
Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan, (2005) 1 SCC 212 and Needle Industries (India) Ltd v. Needle Industries (Newey) India Holding Ltd: 1981 (3) SCC 333 establish that Directors of a company owe fiduciary duties to its shareholders. In P.V. Sankara Kurup v. Leelavathy Nambiar, (1994) 6 SCC 68, the Supreme Court held that an agent and power of attorney holder can be said to owe a fiduciary relationship to the principal.
56. In a recent decision (Mr. Krishna Gopal Kakani v. Bank of Baroda 2008 (13) SCALE 160) the Supreme Court had to decide whether a transaction resulted in a fiduciary relationship. Money was sought to be recovered by the plaintiff, from a bank, who had moved the court for auction of goods imported, and retained the proceeds; the trail court overruled the objection to maintainability, stating that the bank held the surplus (of the proceeds) in a fiduciary capacity. The High Court upset the trial court's findings, ruling that the bank did not act in a fiduciary capacity. The Supreme Court affirmed the High Court's findings. The court noticed Section 88 of the Trusts Act, which reads as follows:
"Section 88. Advantage gained by fiduciary. - Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained."
Affirming the High Court's findings that the bank did not owe a fiduciary responsibility to the appellant, it was held by the Supreme Court, that:
"9. An analysis of this Section would show that the Bank, to whom the money had been entrusted, was not in the capacity set out in the provision itself. The question of any fiduciary relationship therefore arising between the two must therefore be ruled out. It bears reiteration that there is no evidence to show that any trust had been created with respect to the suit money."10
The following kinds of relationships may broadly be categorized as "fiduciary":
• Trustee/beneficiary (Section 88, Indian Trusts Act, 1882) • Legal guardians / wards (Section 20, Guardians and Wards Act, 1890) • Lawyer/client;
• Executors and administrators / legatees and heirs • Board of directors / company • Liquidator/company • Receivers, trustees in bankruptcy and assignees in insolvency / creditors • Doctor/patient • Parent/child:
57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as "a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship....Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who is a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer"
58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be "formally" or "legally"
ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles."
Under the circumstances, the present application cannot under any of the circumstances so exhaustively covered above, claim exemption u/s 8(1)(e). In light of this, the appeal is allowed to the extent that such documents, which pertain to records concerning tax assessments of parties to the WPs before the High Court of Delhi will not be made part of any disclosure applying the principle of severability enshrined in sub sec. (1) of Sec. 10 of the Right to Information Act.
11Shri Sunil Chopra, Chief Commissioner of Income Tax, Central will supply the remaining information to appellant Shri Rakesh Kumar Gupta, within fifteen working days of the date of receipt of this Decision Notice. This appeal is allowed to this extent.
Reserved in the hearing, this decision is announced this twenty-first day of June 2010 in open chamber. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner) 22.06.2010 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.
(PK Shreyaskar) Jt. Registrar 22.06.2010 12