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Central Information Commission

Rahul Arora vs Chief Commissioner Of Income Tax (Cca), ... on 5 April, 2019

                                         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.(s):- CIC/CCITD/A/2018/124443-BJ+
                                             CIC/NAIND/A/2018/124445/CCITD-BJ

Mr. Rahul Arora
                                                                            ....अपीलकता /Appellant
                                             VERSUS
                                              बनाम
CPIO
ITO (Inv.), CRU, Principal Director of Income-tax (Inv.) - 1
ARA Centre, 2nd Floor, Jhandewalan Extension
New Delhi - 110055
                                                                        ... ितवादीगण /Respondent

Date of Hearing        :              04.04.2019
Date of Decision       :              05.04.2019

                                            ORDER

RTI I & II : CIC/CCITD/A/2018/124443-BJ and CIC/NAIND/A/2018/124445/CCITD-BJ Date of RTI application 23.12.2017 CPIO's response 16/17.01.2018 (incorrectly typed as 2017) Date of the First Appeal 03.02.2018 First Appellate Authority's response Not on Record Date of diarised receipt of Appeal by the Commission 17.04.2018 FACTS:

The Appellant vide his RTI application sought information on 10 points in respect of his Complaints / Grievance dated 11.11.2017 and 01.12.2017, action taken report on the above referred TEP; whether the investigation has been started or not, if yes, then approximate time by when the investigation would be completed; certified copies of all communication sent to the guilty people pertaining to his complaint, etc. The CPIO, vide its letter dated 16/17.01.2018 (wrongly typed as 2017) while relying upon the decision of the Hon'ble High Court of Delhi order dated 26.02.2016 in W.P. (C) 6030/2013 & CM APPL 13275 / 2013, sought exemption u/s 24 read with Second Schedule of the RTI Act, 2005 being an exempted Department, and thereby denied disclosure of information. Dissatisfied by the response, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Mr. S. K. Arora Appellant's representative;

Respondent: Mr. Jameson Vaiphei, CPIO / ITO (Inv.);

The Appellant's representative reiterated the contents of the RTI application and stated that the information sought had not been provided although the transfer of this application to Pr. DIT (Inv.), Chandigarh was made by the Respondent. In its reply, the Respondent in his written response dated 03.04.2019 drew the attention of the Commission to the exemption granted to their Directorate under Section 24 (1) r/w Second Schedule of the RTI Act, 2005. A copy of the gazette notification and the judgment of the High Court of Delhi order dated 26.02.2016 in W.P. (C) 6030/2013 & CM APPL 13275 / 2013, was presented. The Commission was also in receipt of a written submission from the Appellant dated 26.03.2019 addressed to the CPIO, ITO (Inv.), CRU, Jhandewalan, New Delhi, wherein while relying upon the decision of the Hon'ble High Court of Delhi in the case of Shri Bhagat Singh Vs. Director General of Income Tax, New Delhi, order dated 31.12.2007 and the decisions of the Commission in the case of Shri Dori Lal Vs. Income Tax Department (File No. CIC/LS/A/2010/000090); in the case of Shri Brij Ballab Singh Vs. DGIT (Inv.), Lucknow dated 01.01.2010 (File No. CIC/LS/A/2009/01014); in the case of Shri Chetan Anand and Parashar Vs. IT Department, Ghaziabad, etc. etc., requested the Commission to provide the information relating to TEP filed against M/s Ajanta Educational Centre which is a nonprofit society engaged in running of educational institute and claiming Income Tax exemptions.

The Commission referred to the definition of information u/s 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, 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 DGIT (Inv) was included in the list of organization exempted from the purview of the RTI Act, 2005 as per Section 24 r/w Second Schedule of 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 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."

With regard to the disclosure of the broad outcome of Tax Evasion Petitions, the Commission referred to the order dated 18/06/2013 (File No. CIC/RM/A/2012/000926 Sh. Ved Prakash Doda v/s ITO) wherein it was held as under:

"6. It has been the stand of the Commission that in respect of a tax evasion petition, once the investigation is completed, the appellant should be informed the broad results of the investigation, without disclosing any details. The appellant has a right to know as to whether the information provided by him was found to be true or false."

DECISION:

Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs the Respondent to disclose the broad outcome of the investigation to the Appellant as soon as the investigation gets completed.

The Appeals stand 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: 05.04.2019




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