Central Information Commission
K Shreesha Upadhyay vs Central Board Of Excise And Customs - ... on 23 August, 2017
CENTRAL INFORMATION COMMISSION
2nd Floor, August Kranti Bhawan, Bhikaji Cama Place
New Delhi-110066, website:cic.gov.in
****
Appeal No.:-CIC/CBECE/A/2016/305647-BJ-Final
Appellant : Mr. K. Shreesha Upadhya
Respondent No.1 : CPIO
O/o. Asstt. Commissioner of Central Excise,
Udupu Division, Karnataka
Respondent No.2 : Sarvamangala Kala Mantapa Samithi
Udupi, Karnataka
Date of Hearing : 17.07.2017, 22.08.2017
Date of Decision : 17.07.2017, 22.08.2017
Date of filing of RTI applications 28.05.2016
CPIO's response 15.07.2016
Date of filing the First appeal 07.07.2016
First Appellate Authority's response 04.08.2016
Date of diarised receipt of second appeal by the 23.09.2016
Commission
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding Annual Income Declaration submitted by Sarvamangala Kalamantapa Samithi/ Kathyayini Kalyana Mantappa, Udupi for the years from 2011 to 2016.
The CPIO and Asst. Commissioner, Central Excise and Service Tax, Udupi, vide its letter dated 15.07.2016 stated that the information sought by the Appellant pertained to a third party and a reference was made to the Third Party under Section 11 of the RTI Act, 2005. However, the said Sarvamangala Kalamantapa Samithi/ Kathyayini Kalyana Mantappa, Udupi had denied consent to the disclosure of information hence, it was denied under Section 8 (1) (d) r/w Section 11 of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 04.08.2016, held that reply had been furnished to the Appellant 06 days after the mandatory period of 40 days by the CPIO, Udupi Division. The FAA therefore directed the CPIO to return the fee amount of Rs. 10/- paid towards fee for seeking information under Section 7 (6) of the RTI Act, 2005 for delay in furnishing reply/ information.
HEARING:
Facts emerging during the hearing on 17.07.2017:
The following were present:
Appellant: Mr. K. Shreesha Upadhya through VC;Page 1 of 6
Respondent: Mr. George Joseph, AC and CPIO through VC;
The Appellant reiterated the contents of his RTI Application and stated that no satisfactory information was provided to him, till date. Explaining the background of the case the Appellant alleged that Sarvamangala Kala Mantapa Samithi/ Kathyayini Kalyana Mantapa, Udupi regarding which the information was sought by him resorted to underreporting of income resulting in tax evasion. In its written submission dated 12.07.2017, the Appellant had submitted that the Respondent had not provided the information, till date and had not explained or proved that the information sought related to a Third Party. It was also submitted that the Sarvamangala Kala Mantapa Samithi regarding which information was sought by him was formed by the General Public and office bearers of the Samithi were the same office bearers as Kadiyali Sri Mahishamardini Temple Management Committee and in the year 1972, Sri Anantharam Upadhya who was also the Managing Trustee of the Kadiyali Sri Mahishamardhini Temple had registered Sri Sarvamangala Kala Mantapa Samithi before the District registrar of Land Registration. But the Samithi was not registered as a Trust. Initially the income of this Samithi had been transferred to the Kadiyali Temple which was a 'A' grade temple under Endowment Department, Government of Karnataka. Gradually, the income of the Samithi was utilised by Anantharam Upadhya who was the Secretary of the Samithi and Managing Trustee of the Temple. However, now the said Samithi had no office bearers and one Mr. Muralikrishna Upadhya S/o late Anantharam Upadhya, former trustee of the temple claims to be office bearer of the Benami Samithi. It was submitted that the Deputy Commissioner, D.K.District and Assistant Commissioner for Endowment had ordered the Samithi to hand over entire books of accounts to the temple and also directed the Trustee of the temple to acquire the Kalyana Mantapa to Temple administration. Unfortunately, the said order is not at all implemented, till date. Citing the irregularities within the Samithi, the Appellant submitted that the Kalyana Mantapa had no trade license, the land of the Kalyana Mantapa was in the name of Laxminarayana Upadhya, no building license had been obtained, till today, etc. It was also explained that no license was issued to the Kalyana Mantapa for over 40 years for Sales Tax, Service Tax, Luxury Tax, etc. However, the Respondent had issued Registration Certificate in the middle of August, 2016 despite several complaints from the public for not paying any tax for the Kalyana Mantapa. Furthermore, it was submitted that while issuing Sales Tax Registration, the Respondent colluded with the representatives of Kalyana Mantapa People. In order to substantiate his claims regarding larger public interest involved in the matter, the Appellant submitted that order of the Deputy Commissioner in favour of the temple itself highlighted the larger public interest and the Kalyana Mantapa Samithi was formed for public purpose and hence disclosure of information did not come under the purview of Third Party information. It was also alleged that the Samithi was illegally run by a private person called Mr. Muralikrishna Upadhya and lakhs of rupees of income had been misappropriated by a single person and that the Respondent had not investigated this fact inspite of several public complaints.Page 2 of 6
In its reply, the Respondent submitted that the Appellant's complaint against tax evasion by the said Samithi was examined by them in detail whereby it was found that the Annual Income of the Samithi fell below the threshold limits for payment of taxes. Moreover, due to lack of evidence adduced by the Appellant no further action could be taken. It was also stated that the information sought pertained to a Third Party and hence was denied from disclosure as per Section 8 (1) (d) r/w Section 11 of the RTI Act, 2005. The Commission was also in receipt of a written submission dated 10.07.2017, sent by the Asst. Commissioner and CPIO, Central Excise and Central Tax, Udupi Division, wherein as well it was submitted that the information sought by the Appellant was exempted from disclosure under Section 8 (1) (d) of the RTI Act, 2005 and following the procedure under Section 11 of the RTI Act, 2005, the Appellant was informed that information sought by him cannot be disclosed in terms of the aforementioned provisions. Explaining the reason for delay of 06 days in providing information by the CPIO, it was stated that the delay was not caused intentionally or wilfully and during annual transfer and posting, the matter was inadvertently overlooked by the concerned person. As regards the issue of Section 8 (1) (d) raised by the Appellant, it was stated that the same was not a ground of appeal before the FAA and the Appellant had made this ground directly before the Commission. On a query from the Commission, whether the Samithi regarding which information was sought by the Appellant was registered as a Public Trust or not, the Respondent feigned ignorance but re-iterated that no satisfactory evidence substantiating his claims was adduced by the Appellant. In reply, the Appellant submitted that consent under Section 11 of the RTI Act, 2005 was sought from the unauthorised person by the Respondent and the Annual Income earned by the Samithi was much more than what was determined by the Respondent Public Authority.
To a query from the Commission whether the Samithi performed Public Functions and was functioning with the aid of Public Funds, the Appellant submitted that it was operating on funds provided by a temple and alleged that the Samithi had subsequently indulged in diversion of funds. In its response, the Respondent re-affirmed that detailed investigation had already been conducted in the matter and statements of one Mr. Murali Krishna who is in-charge of the day to day operation of the Samithi had also been recorded in terms of Section 14 of the Customs Act.
The Commission observed that certain issues have been raised in the RTI application which relate to Annual Income Declaration of a Sarvamangala Kalamantapa Samithi/ Kathyayini Kalyana Mantappa, Udupi that categorically works for the public welfare by solemnising marriages etc. Hence it was noted that there were important and significant issues that merit detailed examination and due diligence.
INTERIM DECISION:
Considering the facts of the case, the submissions made by both the parties and to provide a fair and reasonable opportunity of hearing to all the concerned parties, the Commission directs the Dy. Registrar to also issue notice of hearing to the Third Party i.e. Sarvamangala Kalamantapa Page 3 of 6 Samithi/ Kathyayini Kalyana Mantappa, Udupi under Section 19(4) of the RTI Act, 2005 in addition to the Appellant and the Respondent and fix the next date of hearing in the matter within a period of 03 weeks from the date of this order.
The matter stands adjourned.
Note: Subsequently, the Dy. Registrar, vide its letter dated 04.08.2017 fixed 22.08.2017 as the next date of hearing in the matter.
HEARING:
Facts emerging during the hearing on 22.08.2017:
The following were present:
Appellant: Mr. K. Shreesha Upadhya through VC;
Respondent: Mr. George Joseph, AC (Central Excise and Service Tax) and CPIO; Mr. Nagraj Nairy, Superintendent (Technical & RTI) through VC; and Mrs. Gayathri Upadhya Kadiyali, Secretary of Sarvamangala Kalamantapa Samithi, Udupi; Mr. K. Murli Krishna Upadhya representative of Sarvamangala Samithi through VC;
The Appellant reiterated the contents of his submission placed before the Commission in the last hearing that stated that the information sought was for the larger public interest.
The Concerned third party explained the Commission that the relevant Samiti in issue was a private trust and was engaged in organising wedding ceremonies for a payment fee of Rs, 10,000/-only. It was further informed that there was a pending family dispute between the Appellant and the Third party and that no larger public interest was involved in disclosure of information sought in the RTI application. Moreover, it was argued that they did not wish to disclose the personal Income details of the Samiti.
The Respondent submitted that due inquiry was conducted regarding the alleged service tax evasion by the concerned Samiti discreetly and otherwise and no illegal activity was noticed. It was also explained that as per the extant guidelines of the Department, Rs. Ten Lakhs was the threshold limit for non-chargeable service tax and that the concerned Samiti was found to be operating within that threshold limit. The Appellant was also asked to provide substantial evidence regarding his allegation of tax evasion by the concerned Samiti but no such evidence could be adduced by him, till date. It was explained that due procedure of law had been followed by the Respondent Public Authority in this matter and that no further action was required at their end.
The Appellant strongly objected to the submissions made by the concerned Third Party and stated that no family dispute pertained to the current matter and that the building of the Samiti was made out of the public funds of the Temple and therefore the management of the Samiti should be transferred to the Temple itself, which was a Public place of worship. On being queried from the Commission regarding the larger public interest Page 4 of 6 involved in the disclosure of annual tax statement of the Samiti, the Appellant could not justify or establish any such details.
In this context, 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 which held as under:
"13....... Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."
The Commission observed that the information sought by the Appellant pertained to Annual Income Declaration Statement of the concerned third party and no larger public interest warranting disclosure of information was justified by the Appellant. In this context, the Commission referred to the decision of the Hon'ble High Court of Delhi dated 13/07/2012 in (W.P. (C) No. 1243 of 2011- UPSC vs. R.K. Jain) wherein while discussing the issue of disclosure of information in larger public interest the Hon'ble High Court of Delhi had held as under:
"'The second half of the first part of clause (j) of Section 8(1) shows that when personal information in respect of a person is sought, the authority concerned shall weigh the competing claims i.e., the claim for the protection of personal information of the concerned person on the one hand, and the claim of public interest on the other, and if "public interest" justifies disclosure, i.e., the public interest outweighs the need for protection of personal information, the concerned authority shall disclose the information."
Similarly, 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.....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"
Furthermore, the division bench of the High Court of Delhi in the decision of Harish Kumar v. Provost Marshall cum Appellate Authority, LPA No. Page 5 of 6 253/2012 dated 30.03.2012 while denying information in a matrimonial dispute had held as under:
"10......................It was further held that when any personal information sought has no nexus with any public activity or interest, the same is not to be provided. Finding the information sought in that case to be even remotely having no relationship with any public activity or interest and rather being a direct invasion in private life of another, information was denied. ..............It was further observed that personal information including tax returns, medical records etc. cannot be disclosed unless the bar against disclosure is lifted by establishing sufficient public interest in disclosure and disclosure even then can be made only after duly notifying the third parry and after considering his views...."
The Appellant could not contest the submissions of the Respondent and the Third Party or to establish the larger public interest in disclosure which outweighs the harm to the protected interests.
FINAL DECISION:
Keeping in view the facts of the case and the submissions made by all the concerned parties, the Commission observed that no further intervention is warranted in this matter.
The Appeal stands disposed accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 6 of 6