Central Information Commission
Ram Gopal vs Chief Commissioner Of Service Tax, New ... on 5 October, 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/CCSTD/A/2023/117714
RAM GOPAL ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
O/O Asst. Commissioner, Central Goods &
Service Tax,
Plot No.36-37, Sector - 32,
Gurugram-122001. .... ितवादीगण /Respondent
Date of Hearing : 27/09/2023
Date of Decision : 27/09/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 06/12/2022
CPIO replied on : 21/12/2023
First appeal filed on : 06/01/2023
First Appellate Authority order : 02/02/2023
2nd Appeal/Complaint dated : 11/04/2023
Information sought:
The Appellant filed an RTI application dated 06.12.2022 seeking the following information:1
"A Summon under Section 70 of the CGST Act, 2017 has been issued under CBIC- DIN-20221252200000777F89 in name of our company M/s Beri Udyog Private Limited by the Superintendent (AE), CGST, Panchkula. In the summons, in addition to supply of various records, we are further required to reverse the ITC availed on the invoices issued by M/s Mechbulls Management Services Private Limited having GSTIN 06AAFCM1980K1Z9 as the said firm has not paid GST liability by filling GSTR-3B returns. The copy of Summon is enclosed.
On the GST portal, the Administrative Office of above supplier is showing as Jurisdiction-Centre. Range-4, Division North-1, Commissionerate - Gurugram. As per Search Taxpayer details of above supplier downloaded from GST portal, M/s Mechbulls Management Services Private Limited had filed GSTR-38 returns up to the month of July, 2019 and had filed GSTR-1 rectums up to month of January, 2021 The effective date of GST registration of the supplier is showing as 22/09/2018 and this registration stand cancelled Suo-moto (effective from 29/01/2021) as per this search details. The print-out of search details of M/s Mechbulls Management Services Private Limited is enclosed.
Our company had received various taxable supplies of services during the period 01/11/2018 to 31/07/2019 involving total CGST of Rs 16,36,768.00 & total SGST of Rs 46,13,161.00 & total SGST of Rs. 46,13,161.00 from the above supplier namely M/s Mechbulls Management Services Private Limited. Our company had duly paid the service charges along with CGST & SGST amount to the above supplier though banking channels in respect of invoices of services issued by the above service provider.
Since M/s Mechbulls Management Services Private Limited had made taxable supplies of services to our company and had charged CGST & SGST on their invoices from our company, they were required to deposit the same with GST department. There is a proper mechanism under GST Act for recovery of such tax amount from the defaulter like Section 79 of CGST Act, 2017 / Haryana Goods and Service Tax Act, 2017.
In the above explained facts, the undersigned request herewith to supply following information and documents as per the provisions of Section 6 ibid.
a) Whether M/s Mechbulls Management Services Private Limited had paid/ deposited GST liability of CGST of Rs.16,36,768.00 & SGST of Rs.
Rs.16,36,768.00 in respect of taxable supplies of services made during the 2 period 01/11/2018 to 31/07/2019 to our company namely M/s Beri Udyog Private Limited having GSTIN: 06AAACB5379C1ZX in view of submission of GSTR 3B for the said period?
b) Whether M/s Mechbulls Management Services Private Limited had paid/ deposited GST liability of CGST of Rs. 46,13,161.00 & SGST of Rs. 46,13,161.00 in respect of taxable supplies of services made during the period 01/08/2019 to 31/03/2021 to our company namely M/s Beri Udyog Private Limited having GSTIN: 06AAACB5379C1ZX?
c) Whether any GST recovery proceeding has been initiated against M/s Mechbulls Management Services Private Limited, NM-22, Old DLF, Sector- 14, Gurugram, Haryana - 122001 having GSTIN: 06AAFCM1980K1Z9, in respect of various taxable supplies made by this party during the period 01/11/2018 to 31/03/2021, in case of non-payment of any GST liability for this period (including the GST liabilities in respect of supplies of services made during the period 01/11/2018 to 31/03/2021 involving total CGST amount of Rs. 62,49,929.00 & total SGST amount of Rs. 62,49,929.00 to M/s Beri Udyog Private Limited having GSTIN: 06AAACB5379C1ZX)?
d) Whether the whole of GST liability in respect of supplies made by M/s Mechbulls Management Services Private Limited during the months of November-2018 to March-2021 has been recovered from M/s Mechbulls Management Services Private Limited, NM-22, Old DLF, Sector-14, Gurugram, Haryana - 122001 having GSTIN: 06AAFCM1980K1Z9? However, if only part amount of GST liability has been recovered from this party by the GST department for these months, it is requested to inform the month- wise details of GST liabilities of November-2018 to March-2021 of this supplier and the figure of part GST liability amount recovered out of these month-wise details of GST liability figures for the period November-2018 to March-2021.
e) However, if either part or no recovery of GST liability has been made from M/s Mechbulls Management Services Private Limited having GSTIN:
06AAFCM1980K1Z9 in respect of supplies made during the period November-2018 to March-2021, it is requested to inform the action initiated/taken so far for making GST recovery from this supplier. It is further requested to supply copies of such action taken reports."3
The CPIO furnished a reply to the appellant on 21.12.2022 stating as under:
"The information sought by the applicant is a third-party information. Henc, the information cannot be disclosed under Section 8(1)(j) of the RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 06.01.2023. FAA's order, dated 02.02.2023, upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied with the denial of information by the CPIO, the appellant approached the Commission with the instant Second Appeal on the following grounds -
".... in the impugned order, the above information/documents required under RTI application was denied on the illogical grounds that the information sought under RTI by the appellant is private and held in fiduciary capacity by GST department and hence exempted under Section 8(1)(e) & (j) of the RTI Act. ln support of above, reliance has been placed on para 59 of judgment of Hon'ble Supreme Court passed in the case of Subhash Chandra Agarwal, which has defined personal information. The Hon'ble first appellate authority has further held that the appellant in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act, 2005.
2.2. ln this regard, it is submitted that Section 8(1)(j) of the Right to lnformation Act, 2005 grant exemption from disclosure of information relating to third party in case where such lnformation relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. The relied upon Section 8(1)(g) of RTI Act 2005 provides that - Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
"information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public to lnformation Officer or the State Public lnformation Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."4
ln common language we would ascribe the adjective 'personal' to an attribute which applies to an individual and not to an institution or a corporate company. The expression "personal information" as used in clause (j) of Section 8(1) of the Act has to be read in the context of information relating to an individual. A plain reading of the aforesaid clause would indicate that the expression "personal information" is linked with "invasion of privacy of the individual". The use of the word "the" before the word "individual" immediately links the same with the expression "personal information". Black's law dictionary, sixth edition, inter alia, defines the word "personal" as under:-
"The word "personal" means appertaining to the person; belonging to an individual; limited to the person; having the nature or partaking of the qualities of human beings, or of movable property."
A perusal of the above definition also indicates that the ordinary usage of the word "personal" is in the context of an individual human being and not a corporate entity/company. From this it flows that 'personal' cannot be related to institutions, organizations, companies or corporates. The expression "individual" cannot be used as a synonym for the expression "person". Under the General Clauses Act, 1897 a person is defined to "include any company or association or body of individuals, whether incorporated or not'. Thus, whereas a 'person' would include an individual as well as incorporated entities and artificial persons, the expression 'individual' cannot be interpreted to include such entities. The context in which, the expression "personal information" is used would also exclude it application to large widely held Lt corporations. Hence, we could state that Section 8(1)(j) of RTI Act cannot be applied when the information concerns institutions, organizations, companies or corporates. ln the impugned order, reliance has been made on para 59 of judgment of Hon'ble Supreme Court passed in the case of Subhash Chandra Agarwal, which has defined personal information. As per this para, personal information means personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. Thus, the above relied upon para 59 of judgment of Hon'ble Supreme Court also defines personal information relating to an individual.
2.3. ln the present case, the appellant is not seeking any personal information relating to an individual or director of the supplies company. He is asking for providing 5 information/documents relating to GST payment made by M/s Mechbulls Management Services Private Limited and relating to recovery proceedings initiated by GST authorities against this supplier's company in respect of GST payable on supplies made to M/s Beri Udyog Private Limited. The information sought has direct relation and making direct impact on the appellant's company M/s Beri Udyog private Limited. By supplying the required information/documents, it is not going to make any invasion of privacy of any of director of M/s Mechbulls Management services private or of an individual. Thus, the above ground raised in the impugned order for denial of information /documents to the appellant is misconceived and based on wrong interpretation of provisions providing exemption from disclosure of information under RTI Act.
2.4. With respect to ground that information sought under RTI by the appellant is held in fiduciary capacity by GST department and hence exempted under Section 8(1)(e) of the RTI Act, it is submitted that the term 'fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and condour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term 'fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. lf the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and expected not to disclose the thing or information to any third party. There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are : a partner vis-à-vis another partner and an employer vis-A-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee's conducl or acts are found to be prejudicial to the employer.
ln the present case, the information relating to payment of GST liabilities by M/s Mechbulls Management Services Private is not information held in fiduciary capacity by GST department. Infact, anyone can check the GST payment & returns compliances on part of a GST registered assessee on government GST portal (gst.gov.in) under "Search Taxpayer" category. The purpose behind insertion of column 'Search Taxpayer" on GST 6 portal is to provide access to taxpayers to check and ensure GST compliances made by a supplier before starting business dealings or during business dealings with such supplier of goods or services.
It is pertinent to mention here that the fact of part payment of GST liability by the above supplier company M/s Mechbulls Management Services Private is already on record of GST authorities and also specifically informed/disclosed to the appellant by way of issuing summon to appellant's company M/s Beri Udyog Private Limited requiring them to reverse the ITC availed on the invoices issued by M/s Mechbulls Management Services Private Limited on the alleged ground that the said supplier company has not paid GST liability. Here a question arises, if information relating to status of GST payment made by M/s Mechbulls Management Services Private Limited is held in fiduciary capacity by GST department, then why in the Summons dated 02.12.2022 it has Deen disclosed to the appellant by informing that M/s Mechbulls Management Services Private Limited has not paid GST liability. So, there is no fiduciary relationship between a registered assessee and the GST department under provisions of GST Act.
Moreover, the information required by the appellant is directly related to them and the GST department is bound to disclose the same to the appellant before initiating the any recovery proceedings against his company for reversal of ITC claimed on the basis of tax invoices issued by M/s Mechbulls Management Services Private Limited. Unless M/s Beri Udyog Private Limited is informed about how much GST liability has been short paid by M/s Mechbulls Management Services Private Limited, it is not understood how recovery proceedings for denial of ITC can be initiated against appellant's company. There cannot be any justification for denying this information to the appellant as the CGST department is requiring the appellant's company M/s Beri Udyog Private Limited to reverse the ITC availed on the invoices issued by M/s Mechbulls Management Services Private Limited.
ln his RTI application, the appellant has only requested for supplying details of GST payments already made by this supplier company in respect of taxable supplies made to his company during the period 01/11/2018 to 31/03/2021 and for supplying copies of recovery notices issued/action taken, if any against the above supplier for recovery of pending GST liability against the supplies made to various parties including to M/s Beri Udyog Private Limited, since any recovery of pending GST liability will have direct impact on eligibility of ITC to the appellant's company M/s Beri Udyog Private Limited in respect of taxable supplies received from M/s Mechbulls Management Services Private Limited. Thus, the above ground raised in the impugned order for denial of information /documents to the appellant is also misconceived and based on wrong interpretation of provisions providing exemption from disclosure of information under RTI Act.
7ln view of above, the impugned order merits to be set aside and a suitable direction may be issued to the concerned CPIO to supply the required information and documents to the appellant.
3. lt is pertinent to mention here that the appellant is not asking questions to any of the authority. He is only asking for supplying information/documents relating to GST payment made by M/s Mechbulls Management Services Private Limited in respect of supplies made to his company and relating to recovery proceedings initiated by GST authorities against this supplier's company in respect of such supplies. The appellant is neither asking for any information or document, which is not in the record or control of the concerned public authority nor asking any authority to take an action, which is not earlier taken or not in their records. The appellant is only asking for supplying copies of recovery notices issued/actions taken, if either part or no GST liability has been paid by M/s Mechbulls Management Services Private Limited having GSTIN: 06MFCM1980K1Z9 in respect of taxable supplies made during the period November-2018 to March-2021. The appellant is not asking questions to the authority if no GST recovery proceeding has been initiated so far against this supplier. ln view of above, the impugned order wrongly denying the required information/documents is clearly bad in law as the grounds taken for denial of information are totally misconceived and are legally not sustainable.
4. lt is not out of place to mention here that the disclosure of information under Section 3 of RTI Act is the rule and exemption from disclosure of information is only an exception, which should be used judicially with proper reasoning by the Public lnformation Officer..."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Represented by Dharam Singh Meena, Inspector present in person.
The Appellant reiterated the contents of instant Appeal as mentioned in the preceding paragraphs. He further prayed the Commission to grant him relief of information in order to defend his case against the SCN issued to him for alleged non-payment of GST in lieu of charges which has already been paid to the M/s Mechbulls Management Services Private Limited for the manpower services availed by them which in turn defaulted in paying the CGST liability.
The CPIO facilitated a discussion regarding the dispute of GST transactions committed vis-à-vis between the Appellant's Company and M/s Mechbulls Management Services Private Limited. Since, the information sought by the 8 Appellant regarding the averred Company contains the elements of personal information of the said third party Company which are hit by Section 8(1)(j) of RTI Act and also such records are kept by the Respondent organization under fiduciary capacity and therefore, cannot be divulged in view of Section 8(1)(e) of RTI Act.
Decision:
The Commission observes from a perusal of records and after scrutinizing the contents of RTI Application that the information sought by the Appellant majorly does not conform to Section 2(f) of RTI Act and also contains the elements of personal information including personal details of M/s Mechbulls Management Services Private Limited which is hit by Section 8 (1)(j) of RTI Act.
For better understanding the mandate of RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.
His attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors [CIVIL APPEAL NO.6454 of 2011] wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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." (Emphasis Supplied) Furthermore, as regards the applicability of exemption clause of Section 8(1)(j) of RTI Act, attention of the parties is invited towards a judgement of Hon'ble Supreme Court of India in the matter of Central Public Information Officer, 9 Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein while explaining the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794.The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..." (Emphasis Supplied) Nonetheless, the reply provided by the CPIO was in consonance with the provisions of RTI Act, merits of which cannot be called into question.
Notwithstanding the aforesaid, the issue raised by the Appellant regarding alleged inadequacies committed by M/s Mechbulls Management Services Private Limited in payment of GST amount, is purely a matter of grievance which is outside the mandate of RTI Act. In this regard, a reference may be had of a judgment of the Hon'ble Delhi High Court in the matter of Govt. of NCT of Delhi vs. Rajender Prasad (W.P.[C] 10676/2016) dated 30.11.2017 wherein it was 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."
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed as under:
10"20. ...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...." (Emphasis Supplied) Having observed as above, no further relief can be granted in the matter.
However, the Commission empathizes with the concern of the Appellant and advises him to pursue the matter through appropriate administrative mechanisms.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स%यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 11