Central Information Commission
S Palani Kumar vs Income Tax Appellate Tribunal, Chennai on 28 April, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/ITCHN/A/2022/135399 +
CIC/ITCHN/A/2022/135678
Dr S Palani Kumar ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
INCOME TAX APPELLATE TRIBUNAL,
CHENNAI BENCHES, RTI CELL,
A-3, RAJAJI BHAVAN, 2ND FLOOR,
BESANT NAGAR, CHENNAI-600090,
TAMILNADU. .... ितवादीगण /Respondent
Date of Hearing : 19/04/2023
Date of Decision : 19/04/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeals:
RTI application(s) filed on : 14/03/2022
CPIO replied on : 11/04/2022
First appeal filed on : 06/05/2022
First Appellate Authority order : Not on record
2nd Appeal dated : 22/07/2022
1
Information sought:
CIC/ITCHN/A/2022/135399 The Appellant filed an RTI application dated 14.03.2022 seeking the following information:
"Sub: Filing of RTI application seeking the video recording of the Virtual Hearing -- in the case of M/s Lakshmi machine works Limited (amalgamated company of LMW Machinery Ltd) -- A Y 2009-10 -- ITA No.697/CHNY/2014.
Kind reference is invited to the above mentioned subject. I. I have represented the above case for the A Y 2009-10 before your Hon'ble Bench through virtual hearing dt.10/1/2022.
2. During the course of hearing, the undersigned had placed the decision of Hon'ble high Court of Kolkata in the case of M/s. Shaw Wallace Distilleries Ltd. in (2010 70 taxmann.com 381(Calcutta) and defended the case of Revenue.
3. During my argument, the Hon'ble Bench had asked the undersigned to distinguish the decision of the Hon'ble Supreme Court in the case of Maruti Suzuki India Ltd. The undersigned has distinguished the facts of Maruti Suzuki India Ltd and the facts in the case of M/s. LMW Machinery Ltd (appellant).
4. The undersigned has also argued about the relevancy of Section 170 of the Income Tax Act and placed my argument that as per section 170 of the IT Act the predecessor shall be assessed in respect of income of the previous year till the date of succession took place.
5. All the argument was advanced by the undersigned before the bench. However, none of those arguments formed part of the decision of Hon'ble ITAT. Instead at paragraph 8 of the order, the Hon'ble ITAT has mentioned that, "8...... the Id. CIT-DR relied on section 292B of the Act and stated that this is purely a mistake happened from record and it can be rectified. Further, he could not convert above facts as well as could not reply to the case law cited by Ld. Counsel for the assesses of the Hon'ble SC in the case of Maruti Suzuki India Limited, supra."
26. I submit that I never argued in the above lines during the course of entire proceedings. My entire argument was through virtual hearing. As my argument itself was misquoted to defend the case of Revenue, the copy of the proceedings of the Virtual Hearing dated 10-1-2022 may kindly be given."
CIC/ITCHN/A/2022/135678 The Appellant filed an RTI application dated 14.03.2022 seeking the following information:
"Sub: Filing of RTI application seeking the video recording of the Virtual Hearing -- in the case of M/s Pon Mahal Income for the A.Yrs. 2011-12 & 2012-13 - ITA No.1236 &1235/CHNY/2017 dt.14.2.2022 Kind reference is invited to the above mentioned subject.
1. I have represented the above case for the A Y 2011-12 and 2012-13 before your Hon' ble Bench through virtual hearing dt.12/1/2022. The assessment order was framed on the basis of seized document.
2. Though the assessee's counsel disowned the document and the appellant also denied this document, an earnest attempt was made before the Bench that it was not a dumb document as argued by the counsel of appellant, as the contents of the documents reflect the partners names, amount, interests earned, period of interest etc. This has been presented in my argument before the bench.
3. I had specifically mentioned in my argument that when the assessee's counsel disowned a seized document, it is the duty of the DR to counter his argument by bringing all relevant facts in support of the decision of lower authority's conclusion. It was shocking to see the order of the Hon' ble ITAT dated 14.02.2022 where in my argument was not found in the order. I searched for the argument of DR in the order from para-1 to 12 and found only two lines in paragraph -2 as under;
"the Ld.CIT-DR supported the findings given by lower authorities and submitted that the additions were based on seized material found during the course of search action".
4. As it is a division bench order and the assessment was framed after search and seizure Toleration that too after search conducted by Maduai Police on the 3 Hawala operators, the revenue's argument ought to have been incorporated in the body of the order, to make it speaking on its own and self-sufficient. This is critical, if the Revenue proposes to file further appeal before Hon'ble High Court.
6. As my argument was completely ignored, to defend the case of Revenue, the copy of the proceedings of the Virtual Hearing dated 12-1-2022 may kindly be submitted."
The CPIO furnished replies to the appellant on 11.04.2022 stating as under:
"Upon perusal of captioned application filed by you, following discrepancies have been noted:-
1. The application has been addressed to Asst. Registrar, ITAT, Chennai which is not an appropriate authority under The Right to Information Act, 2005.
2. The Postal order is left completely blank. Sender's details as well as other details are not filled up.
3. It appears that the information has been sought on behalf of your department. However, no administrative approval, as applicable, has been shown to have been taken by you.
4. Notwithstanding the above discrepancies which would result into rejection of application, the same is responded to as under:-
The furnishing of Video recording of court proceedings as demanded by you is covered by Exemption Clause 8(b) of The Right to Information Act, 2005 which provide that there shall be no obligation to give any information which has been expressly forbidden to be published by any Court of law or tribunal or the disclosure of which may constitute contempt of court.
The Hon'ble Supreme Court, in the case of Pradyuman Bisht V/s Union of India & ors. (Writ Petition Criminal No.99/2015) order dated 28/03/2017, directed as under: -
......we direct that at least in two districts in every State/Union Territory (with the exception of small States/Union Territories where it may be considered to be difficult to do so by the concerned High Courts) CCTV cameras (without audio 4 recording) may be installed inside the courts and at such important locations of the court complexes as may be considered appropriate. Monitor thereof may be in the Chamber of the concerned District and Session Judge. Location of the district courts and any other issues concerning the subject may be decided by the respective High Courts. We make it clear that the footage of the CCTV camera will not be available under the RTI and will not be supplied to anyone without permission of the concerned High Court. Installation may be completed within three months from today....
The same has again been reiterated by Hon'ble Supreme Court in subsequent order dated 14/08/2017 as under: -
8. We are satisfied, after considering the submissions and perusing the studies which have been brought to our notice that installation of CCTV Cameras will be in the interest of justice. Any apprehension to the contrary needs to be repelled. We have already incorporated safeguards of footage of recording not being given for any purpose other than the purpose for which the High Court considers it appropriate. We have also directed that the R.T.I provisions will not apply to CCTV camera recordings in our Order dated 28.03.2017.
In view of the same, the information as sought by you cannot be provided."
Being dissatisfied, the appellant filed a First Appeal dated 06.05.2022. FAA's order, if any, is not available on record.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Not present.
Respondent: Dinesh Inbavadivu, Advocate & Rep. of CPIO present through video conference.
The Advocate of the Respondent was heard at length arguing on the lines of the detailed written submissions filed by their office prior to the hearing raising objections against the instant matter under various subject heads, for instance, maintainability of the Second Appeal; maintainability of the RTI Application as the information sought for by the Appellant is in the capacity of being a Departmental 5 Representative; appropriate avenues available to the Appellant's Department to appeal against the order of ITAT rather than using the channel of RTI Act through their Departmental Representative etc. and towards the concluding part, the Advocate highlighted the following portion of the written submissions:
"It is to be pertinent to taken note of the fact that the Agreement entered into by the Head office of ITAT with M/s.Godrej & Boyce Mfg. Co Ltd for obtaining Cisco- Webex Meeting suite clearly lays down the terms and conditions. Nowhere the option of recording of the proceedings were dealt with. Also, the Standard Operating Procedure issued by the ITAT for conducting the Virtual proceedings on account of Pandemic is merely to avoid human interface which might lead to spread of virus. The SOP doesn't mandate that the proceedings are being recorded. Therefore, the information which is sought is not an existing information with the Respondent and therefore, the Appeal has to be dismissed in limine."
Upon a query from the Commission, the Advocate affirmed that the virtual hearing recording that is being sought for is a non-existent information.
Now, the Commission also took on record the written arguments received from the Appellant which was equally exhaustive, for most part, reiterating the factual background of the information sought for as mentioned in the text of the instant RTI Application(s) and agitating against the applicability of the Pradyuman Bisht V/s Union of India & ors. (Writ Petition Criminal No.99/2015) order dated 28/03/2017 in the matter on the following lines:6
Further, the Appellant has inter alia objected to the fact that the members of ITAT who had adjudicated the averred ITAT cases have not bothered to recuse themselves from taking on the role of CPIO & FAA, respectively in the matter, which is a violation of the principle of natural justice.
Decision:
The Commission based on a perusal of the facts on record observes that the invocation of Section 8(1)(b) of the RTI Act and relying on the Pradyuman Bisht judgment of the Apex Court as well as the magnitude of discussion put forth by the Respondent serve no purpose when the information sought for was non- existent in the first place. In other words, the Commission is at a loss to comprehend the necessity felt by the Respondent CPIO in complicating the matter this far when the foremost issue for determination before invoking exemptions of the RTI Act is to ascertain if the sought for information even exists.
It will not be therefore out of place to hold the view that reply of the CPIO was rather misleading and against the provisions of the RTI Act. Further, the copy of the written submissions wherein the Respondent has categorically stated the factum of the video proceedings not being recorded and information being non- existent has also not been provided to the Appellant despite the clear stipulation contained at para 4 of the notice of the hearing.
Now, therefore, the CPIO is directed to send a copy of their written submissions dated 17.04.2023 to the Appellant within 2 days of the receipt of this order. The CPIO is expected to exercise due caution while dealing with the RTI Applications in the future.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) Information Commissioner (सूचनाआयु ) 7 Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8