Central Information Commission
Shri Kiran vs Chief Commissioner Of Income Tax (Cca), ... on 7 December, 2018
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.:- CIC/CCITB/A/2017/158204-BJ
Mr. Kiran Mahindrakar
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO,
Assistant Director of Income Tax (Investigation)
Office of the Asst. Director of Income Tax (Investigation)
Unit - 2, 2nd Floor, C. R. Building, "Annexe"
Navanagar, Hubballi - 580025
... ितवादीगण /Respondent
Date of Hearing : 07.12.2018
Date of Decision : 07.12.2018
Date of RTI application 31.03.2017
CPIO's response 02.05.2017
Date of the First Appeal 03.05.2017
First Appellate Authority's response 31.05.2017
Date of diarised receipt of Appeal by the Commission 23.08.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points regarding the certified copy of Order Sheet/Note Sheet in the Office of the concerned Asst. Director of Income Tax (Inv) where reasons in respect of the objects for Survey of his Firm was recorded/given to the over-seeing Higher Authorities by the Authority who conducted the Survey on 16.02.2017 under Section 133A (1) of the Income Tax Act, 1961 and other issues related thereto.
The CPIO, vide its reply dated 02.05.2017, denied disclosure of the information under Section 24 of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 31.05.2017, concurred with the response of the CPIO.
HEARING:
Page 1 of 7Facts emerging during the hearing:
The following were present:
Appellant: Mr. Kiran Mahindrakar along with Mr. R. Bhardwaj IRS Retd.) and Mr. Manoj Pukale (Adv.) in person;
Respondent: Mr. Sanjeev Kotlani, ADIT (Inv.) through VC;
The Appellant's representatives reiterated the contents of the RTI application and stated that the information sought was incorrectly denied by claiming exemption u/s 24 of the RTI Act, 2005. It was argued that his case fell within the purview of the proviso to Section 24 (1) of the Act since it involved violation of his human rights hence the information should have been disclosed. Explaining the background of the matter, the Appellant's representatives submitted that the Firm Hubli Cigarette Center (HCC) had deposited huge cash into the bank accounts of the Firm after demonetisation of Rs. 500/- and Rs. 1000/- notes in response to which inquiry was conducted by the IT officials. While elaborating his claims of human rights violation, a reference was made to the alleged forceful shut down of their CCTV cameras, confiscation of mobile phones of inmates, confinement of four lady staff into the lunch room of the business premises till 5 pm, humiliation of partner before the staff, etc during the survey/ inspection of records by the Public Authority officials u/s 133A of the IT Act, 1961. In support of their contention, the Appellant's representatives relied on Para 18 and 22 of the decision of the Hon'ble High Court of Patna in Civil Writ Jurisdiction Case Mo. 10707 of 2011 dated 02.02.2012 and the decision of the Hon'ble High Court of Karnataka in WP No. 11371 of 1991 dated 27.03.1998. A reference was also made to para 6 of the decision of the Commission in CIC/AT/A/2008/00324/ 325/326/327/328/339 dated 16.07.2008 wherein it was held that the copy of the search warrants which were already disclosed to the Appellant at the time of the search and seizure operation by the DGIT (Inv) officials, may be provided to the Appellants within two weeks from the date of receipt of order. It was also stated that as per instruction no. 4/ 2016 dated 13.07.2016 issued by the D/o Revenue CBDT, the Appellant's case was eligible for compulsory manual selection of cases for scrutiny for FY 2016-17. In its reply, the Respondent, while re-iterating the response of CPIO/ FAA stated that their organisation was exempted from the purview of the RTI Act, 2005 as per Section 24 r/w the second schedule of the Act and that the allegations of violation of human rights was an afterthought since no such allegations were made by the Appellant at any stage before filing the Second Appeal. It was further submitted that the allegations were roving and unsubstantiated since the survey exercise conducted by them was part of their core official duty, the details regarding which could not be disclosed in an RTI application. It was also explained that the assessment proceedings in the Appellant's case were under process which was also admitted by the Appellant during the hearing. On a query from the Commission whether the Appellant had approached Chairman, CBDT / any other competent authority complaining about alleged violations of human rights etc., the Appellant informed that he had written to Member (Inv.), CBDT. No other authority like CVC/ CBI / DG (Vig.) etc. had been approached, so far. However, he had made a complaint to NHRC.
The Commission was in receipt of a written submission from the Appellant dated 27.11.2018 wherein while explaining the background of the case, the representation made before the National Human Rights Commission at New Delhi, was referred to wherein it was prayed to take disciplinary action for alleged violations against the IT Authorities including the DGI (Inv.) to Page 2 of 7 whom the Public Servants complained against were answerable in view of the CBDT letter dated 18.12.2014 and further requested to provide him the desired information as sought in the RTI application, and to award compensatory costs of Rs. 1,00,00,000/- for violations committed by the IT Authorities causing public humiliation, diminishing social image and status and loss of business hours.
The Commission referred to the definition of information u/s Section 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. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, Page 3 of 7 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 also 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."Page 4 of 7
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 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 furthermore observed that the DGIT (Inv) was included in the list of organisation exempted from the purview of RTI Act, 2005 as per section 24 r/w second schedule to the RTI Act, 2005. Furthermore, the Hon'ble High Court of Delhi in a similar matter in Pr. DIT (Inv) (1) vs. Ashwani Kumar, W.P.(C) 11591/2017 dated 22.12.2017 stayed the decision of the Commission wherein a direction was issued to the Pr. DIT (Inv) (1) to inform the status of the Petition/Complaint dated 12.02.2016 addressed to PMO, within a period of 30 days from the date of receipt of this order. In the said matter, the Hon'ble High Court had also directed the Department to file an affidavit unequivocally stating that the complaint in question is a matter being investigated by the DGIT (Inv.) and not any other office of the IT Authority. Moreover, the Commission also observed that in similar such matters where information was sought from organizations exempted from the purview of the RTI Act, 2005 as per Section 24 r/w second schedule of the RTI Act, the Hon'ble High Courts had inter alia in several decisions held as under:
1. The Hon'ble High Court of Delhi in the matter of CPIO, Directorate of Enforcement vs. Mr. Bimal Kumar Bhattacharya WP (C) No. 345/ 2018 dated 19.02.2018 held:
"6. Plainly, the impugned order cannot be sustained as it is contrary to the expressed language of Section 24(1) of the Act. Section 24(1) of the Act expressly excludes Page 5 of 7 intelligence and security organizations specified in the Second Schedule of the Act from the purview of the Act. Admittedly, the Directorate of Enforcement is included in the Second Schedule to the Act and, thus, cannot be called upon to disclose information under the provisions of the Act. The only exception carved out from the exclusionary clause of Section 24(1) of the Act relates to information pertaining to allegations of corruption and human rights violation. Undisputedly, the information sought for by the petitioner cannot be categorized as such information.
7. The aforesaid question has also been considered by a Coordinate Bench of this Court in CPIO Intelligence Bureau v. Sanjiv Chaturvedi : 242 (2017) DLT 542, wherein this Court held that an organisation specified in the Second Schedule of the Act was excluded from the purview of the Act.
8. In view of the above, the petition and the pending application are allowed and the impugned order is set aside. However, it is clarified that this would not preclude the respondent from instituting any proceedings that he may be advised against M/s Thomas Cook (India) Limited, if so, entitled in law."
2. The Hon'ble High Court of Punjab and Haryana in its decision in Palwinder Sondhi v.
Central Information Commission and Ors. WO (C) No. 13211 of 2010 dated 28.07.2010 had held as under:
"Be that as it may, in the context of information sought, I find no fault with the reasons given in the impugned order for not supplying the information as the provisions of Section 24(1) of the Act clearly provide that nothing contained in the Act shall apply to the DRI, it being an organization established by the Central Government. Surely the information sought does not relate to corruption and human right violations as is evident from the nature of information sought. The order under the circumstances does not suffer from arbitrariness."
In the instant case, what has emerged from the facts of this matter is that survey conducted against the firm in which Appellant was a partner which was a subject matter of investigations conducted by the IT Department forming part of their primary/ core activity. Thus it is apparent that the Public Authority had given a suitable reply to the Appellant.
A reference can also be made to the decision of the Hon'ble High Court of Manipur in the matter of Abid Hussain vs State of Manipur, W.P. (C) No. 880 of 2014 dated 13.10.2015, wherein the Court while referring to the doctrine of pith and substance the Court discussed regarding the core functions of an authority exempted u/s 24 of the Act and held as under:
"..........................The purpose of excluding all these organizations from the purview of the Act as provided under Section 24 is to merely protect and ensure the confidentiality of the sensitive works and activities undertaken by these organizations. Therefore, if there are any information which do not impinge upon the confidentiality of the sensitive activities of the organization and if such information is also relatable to the Page 6 of 7 issues of corruption or violation of human rights, disclosure of such information cannot be withheld.
..................Therefore, if there be any information which does not relate to the principal or core function of the organization which is sought to be protected by including in Section 24 of the Act, but it can have some reference or relatable to corruption or violation of human rights, such an information cannot be withheld."
The aforementioned observation was also referred by the Hon'ble High Court of Manipur in the matter of Sri Phairemban Sudhesh Singh vs. State of Manipur in WP (C) 642 of 2015.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the aforesaid decisions, it is evident that the CPIO / FAA had replied suitably in the matter. 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 Appeal stands 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: 07.12.2018
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