Central Information Commission
Sushant Singhal vs Department Of Trade And Taxes on 17 October, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File No: CIC/DPTAT/A/2023/130823
Sushant Singhal .....अपीलकर्ाग /Appellant
VERSUS
बनाम
CPIO,
Department of Trade & Taxes,
Vyapar Bhawan, Indraprashta
Marg, IP Estate, New Delhi - 110002 ....प्रनर्वािीगण /Respondent
Date of Hearing : 14.10.2024
Date of Decision : 16.10.2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 14.12.2022
CPIO replied on : 15.02.2023
First appeal filed on : 18.02.2023
First Appellate Authority's order : 22.03.2023
2nd Appeal/Complaint dated : 24.06.2023
Information sought:
The Appellant filed an RTI application dated 14.12.2022 seeking the following information:
"COMPLAINT AGAINST NUKKAD CAFE & BAR, SDA MARKET &/or FLYING SPARROW HOSPITALITY P LTD FOR ILLEGALLY CHARGING EXCESS V.A.T. Page 1 of 7 Upon being met with illegality, indicating towards a fraud and possible siphoning of funds in lieu of V.A.T. by Nukkad Cafe, SDA Market, the Complainant filed a complaint to the Commissioner of Excise, Entt. & L. Tax, Government of National Capital Territory of Delhi.
A Complaint was filed by the Complainant/Applicant, by sending [email protected] on 23.08.2022, with regards to the overcharging NUKKAD Cafe. SDA Market at the unlawful rate of 2'l .48o/",
1. Whether any action has been taken by the Commissioner Excise (or other Concerned Official/Authority), Department of Excise, Entertainment & Luxury Tax, Government of National Capital Territory of Delhi or concerned official in furtherance of the Complaint filed on 23.08.2022.
2. Whether the complaint filed/sent by Applicant herein been received by the Commissioner Excise at [email protected] on 23.08.2022.
3. Whether any action has been taken in furtherance of the Complaint filed on 23.08.2022, annexed herewith as Annexure A-1? If yes, then what action has been taken?
4. What is the rate of V.A.T which can be legally charged by L17 Licence Holders (Restaurants/Bars/Cafe) under the Excise Policy applicable in N.C.T of Delhi?
5. Whether V.A.T. can also be imposed on Food items?
6. Whether V.A.T. can be imposed on "Service Charge"?
7. Whether any Notice (to show cause or otherwise) has been issued to NUKKAD CAFE & BAR &/or FLYING SPARROW HOSPITALITY P LTD., with respect to the aforementioned Complaint.
8. Whether any enquiry has been conducted against NUKKAD CAFE & BAR &/or FLYING SPARROW HOSPITALITY P LTD.
9. Whether any inquiry with respect to the higher imposition of VAT (Tax) at the rate of 27.48% towards the Complainant and other customers has been made.
Page 2 of 710. Whether any inquiry with regard to the possible siphoning off of funds collected by NUKKAD CAFE & BAR &/or FLYING SPARROW HOSPITALITY P LTD in lieu of V.A.T funds, has been made.
11. Whether any inquiry against the Manager of NUKKAD CAFE & BAR &/or FLYING SPARROW HOSPITALITY P LTD., who justified the excess charging of VAT after knowingly was made.
12. Whether any inquiry against the Management and Promoters regarding the illegal VAT charges has been made.
13. Whether any goods/books of accounts of NUKKAD CAFE & BAR &/or FLYING SPARROW HOSPITALITY P LTD. been seized in furtherance of the Complaint.
14. Whether any representation has come to the NUKKAD CAFE & BAR &/or FLYING SPARROW HOSPITALITY P LTD. against the said Complaint, if a Notice was issued.
15. If no action could be taken till date, by when can it be expected that effective actions might be taken with respect to the present Complaint."
The CPIO furnished a reply to the Appellant on 15.02.2023 stating as under:
"Comments on the RTI are as under
(a) Para 1-3 We have not received any complaint in this regard.
(b) Para 4-6 Pertains to Policy Branch, DT&T. Hence, the copy of said RTI is also being furnished to Policy Branch, DT&T for the reply to concerned applicant directly.
(c) Para 7 No complaint received.
(d) Para 8 No complaint received.
(e) Para 9 No complaint received.
(f) Para 10 No complaint received.
(g) Para 11 No complaint received.
(h) Para 12 No complaint received.Page 3 of 7
(i) Para 13 No complaint received.
(j) Para 14 No complaint received.
(k) Para 15 No complaint received."
Being dissatisfied, the appellant filed a First Appeal dated 18.02.2023. The FAA vide its order dated 22.03.2023, held as under:
"Present the PIO/GSTO Sh. Sanjeev Kumar Ward-86 and Appellant Sh. Sushant Singhal.
The case was heard in detail. The PIO is directed to provide information as per application given by Applicant and also take information which pertains to policy Branch."
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Present in person.
Respondent: Ms. Shalini Verma, APIO, Shri Piyush Kumar, Stenographer Gr-III and Ms. Anuppama Gupta, APIO, appeared in person.
The appellant inter alia submitted that he had filed a complaint with the Excise Department highlighting the excess charging of VAT by the Accused NUkkad Café SDA Market. The said complaint was transferred to the Department of Trade and Taxes. Thereafter, the appellant filed the instant RTI application and sought aforesaid information. However, he stated that as the reply received by him the respondent had not received his complaint. The appellant contended that he has sent his complaint through email. He pleaded that the reply given by the respondent was evasive and misleading.
The respondent while defending their case inter alia submitted that they have filed a written submission dated 10.10.2024, a copy of the same is given to the appellant during the hearing and the relevant paras are reproduced as under:Page 4 of 7
"The complainant was made available with the copy of reply submitted by the taxpayer. This office has also gone through the reply submitted by the concerned dealer and it also observed that tax charged by the dealer is in accordance of provision of DVAT Act. not However, the value of service charge should be included in the value of Goods on which the extra tax charged by the dealer comes to Rs.91.25 (365*25%).
The action against the taxpayer will be taken in near future as per provision of DVAT Act after examining various records."
The respondent further stated that the appellant's complaint was examined and outcome of the same was informed to the appellant through email, which is reproduced as under:
"In reference to your RTI/Complaint Nukkad Cafe, SDA Market wherein VAT has been charged at higher than allowed vide as bill No. R050312 dated 02/07/2022. A letter was sent to M/s Flying Sparrow on 11/04/2023 to verify and submit their reply in this regard. M/s Flying Sparrow has submitted a detail reply in this regard which has been attached for your perusal and consideration. I Sanjiv Kumar, Proper Officer, Ward-86 has also examined the said bill and checked the calculation of the said bill for which you have filed an RTI and submitted that the Nukkad Case has charged more DVAT against the prescribed rates. I have nothing found any discrepancies in the bill No R050312 dated 02/07/2022 for an amount of Rs.5458/-."
Decision:
The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of the records, noted that point-wise reply has been given by the respondent vide letter dated 15.02.2023 wherein on point Nos. 1 to 3 and 7 to 15 of the RTI application, they stated that no complaint was received by them. However, the appellant submitted that he has filed complaint through email. The respondent during the hearing submitted that the appellant's complaint was dealt with by the competent authority and outcome was communicated to the appellant. A copy of the same is placed on record.Page 5 of 7
The Commission is of the view that most of the information sought by the appellant in his RTI application was in the form of queries which did not fall within the definition of "information" as defined under section 2 (f) of the RTI Act.
As per the available records, on point Nos. 4 to 6 of the RTI application, the CPIO has neither transferred the RTI application under section 6 (3) of the RTI Act nor obtained the information from the concerned Branch under section 5 (4) of the RTI Act. Consequently, the appellant did not get any information/reply on point Nos. 4 to 6 of the RTI application even after lapse of more than one and half years from the date of filing of the RTI application. The FAA's order was also not complied with by the CPIO. The act of the CPIO is not in consonance with the provisions of the RTI Act. Therefore, the Commission cautions Shri Sanjeev Sehrawat, the then CPIO, for not fulfilling his duties enshrined under the RTI Act.
Further, the present CPIO is directed to obtain the information from the concerned branch/section/department by invoking Section 5 (4) of the RTI Act and provide a suitable reply/information on point Nos. 4 to 6 of the RTI application, within three weeks' time from the date of receipt of this order. The reply given by the respondent on the remaining points appears to be appropriate and intervention of the Commission is not warranted on those points.
The appeal is disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Page 6 of 7 Copy To:
The FAA Department of Trade & Taxes, Vyapar Bhawan, Indraprashta Marg, IP Estate, New Delhi - 110002 Page 7 of 7 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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