Central Information Commission
K Somanandan vs Central Board Of Direct Taxes on 15 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/CBODT/A/2022/131118
K Somanandan ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
O/O INCOME TAX OFFICER,
EXEMPTION WARD,
THIRUVANANTHAPURAM,
RTI CELL, AAYAKAR BHAWAN,
1ST FLOOR, KAWDIAR PO,
THIRUVANANTHAPURAM-695003, KERALA. .... ितवादीगण /Respondent
Date of Hearing : 13/04/2023
Date of Decision : 13/04/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 28/02/2022
CPIO replied on : 08/03/2022
First appeal filed on : 06/04/2022
First Appellate Authority's order : 30/05/2022
2nd Appeal/Complaint dated : 20/06/2022
Information sought:
1The Appellant filed an RTI application dated 28.02.2022 seeking the following information:
"Space Engineers Welfare Society, TC 25/557, Plamoodu, Pattom, Trivandrum 695004 is registered as Charitable Trust with register no 958/95. The society is regularly filing income tax return ITR-7 and its pan number is AAETS 4072N and having 12A Registration.
I am a citizen of India and I had submitted an application dated 19-12-2021 under right to information act and requested to get certified copy of the following documents filed by the above Space Engineers Welfare Society, along with income tax returns for the assessment years 2018-19, 2019-20 and 2020-21. a) Computation statement. b) 26AS statement and TDS Certificates c) Audited statements. d) Acknowledgement of the income tax returns.
1. Certified copy of the all documents in which contains Computation statement filed by the above Space Engineers Welfare Society, along with income tax returns for the assessment year 2018-19.
2. Certified copy of the all documents in which contains Computation statement filed by the above Space Engineers Welfare Society, along with income tax returns for the assessment year 2019-20.
3. Certified copy of the all documents in which contains Computation statement filed by the above Space Engineers Welfare Society, along with income tax returns for the assessment year 2020-21.
4. Certified copy of the following documents filed by the above Space Engineers Welfare Society, along with income tax returns for the assessment year 2018-19.
a) Balance Sheet as at 31 March 2018 and its attachments (schedule to balance sheet etc.)
b) Profit and loss Account year ending on 31 March 2018.
c) Income and Expenditure of the Accounts for the year ended 31 March 2018.
d) Receipts and Payments for the period from 01/04//2017 to 31/03/2018.
5. Certified copy of the following documents filed by the above Space Engineers Welfare Society, along with income tax returns for the assessment year 2019-20.
a) Balance Sheet as at 31 March 2019 and its attachments (schedule to balance sheet etc.)
b) Profit and loss Account year ending on 31 March 2019 2
c) Income and Expenditure of the Accounts for the year ended 31 March 2019.
d) Receipts and Payments for the period from 01/041/2018 to 31/03/2019.
6. Certified copy of the following documents filed by the above Space Engineers Welfare Society, along with income tax returns for the assessment year 2020-21.
a) Balance Sheet as at 31 March 2020 and its attachments (schedule to balance sheet etc.)
b) Profit and loss Account year ending on 31 March 2020.
c) Income and Expenditure of the Accounts for the year ended 31 March 2020.
d) Receipts and Payments for the period from 01/04//2019 to 31/03/2020.
7. Certified copy of the following documents filed by the above Space Engineers Welfare Society, along with income tax returns for the assessment year 2021-22.
a) Balance Sheet as at 31 March 2021 and its attachments (schedule to balance sheet etc.)
b) Profit and loss Account year ending on 31 March 2021.
c) Income and Expenditure of the Accounts for the year ended 31 March 2021.
d) Receipts and Payments for the period from 01/04//2020 to 31/03/2021."
The CPIO furnished a reply to the appellant on 08.03.2022 stated as under:
"In response to an earlier RTI application filed by the applicant seeking similar information in respect of M/s. Space Engineers Welfare Society, the said society was given an opportunity to provide the reason along with material evidence in support, as to why the said information is exempt u/s 8 of the RTI Act. The reply received via mail on 01-01-2022 is reproduced below:
1. The Society is registered under the Travancore Cochin Literary and Scientific Societies Act,
2. The members of the society are the ex-officials of VSSC, Trivandrum,
3. The Society is liable to give financial statements and other documents only to Statutory Authorities and the members of the Society.
4. The petitioner, Sri. K.Somanandan is not a member or office bearer of the Society. He never takes membership of the society, 3
5. The Society neither received nor applied for any grant in aid/subsidy either from Central/State Govts, Local Authorities etc,
6. Since no aid is received from the Govts and so we are not liable to publish the documents to be shared to the public at large and so we are exempted u/s 8(1)(e) of the RTI Act.
M/s. Space Engineers Welfare Society has argued against disclosure of information on the premise that the society, since not receiving aid from the Govts are not liable to publish the document to the public at large and therefore exempt u/s 8(1)(e) of the RTI Act. M/s. Space Engineers Welfare Society further asserted that such information lies with them in fiduciary capacity. Section 8(1)(e) of the RTI Act, 2005 exempts information available to a person in his fiduciary relationship from disclosure unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.
Income Tax Returns filed by assessee before the Income tax authorities are personal as well as fiduciary entrustment and attracted the exemptions under section 8(1)(e) and Section 8(j) of the RTI Act. Since most of the Income Tax Returns also contained commercial information for enabling he Income Tax Department to determine the tax liability flowing from it, such Returns should also attract provision of Section 8(1)(d) of the Act. Divulging such confidential information may have serious implications for the privacy of the assesses. Such information, which is decidedly personal could not be disclosed to a third party. Allowing strangers, however well-meaning, the access to such privileged information furnished by the assesses to their public authorities, shall be a gross intrusion into the privacy of the assesses concerned. M/S. Space Engineers Welfare Society also confirmed that Sri. K.Somanandan, the petitioner is not a member or office bearer of the Society and has never taken membership of the society.
The Petitioner is regularly seeking income tax related information about the third party, M/S. Space Engineers Welfare Society. Information sought for in an earlier instance is repeated here, viz., computation statements and audited statements of the above society for the AYs 2018-19, 2019-20 and 2020-21. It may be mentioned here that even a single repetition of RTI application would demand the valuable time of the public authority."
Being dissatisfied, the appellant filed a First Appeal dated 06.04.2022. FAA's order, dated 30.05.2022, held as under:
4"The CPIO is directed to examine the information sought for within the ambit of right to information Act and if there is no violation of section. 8(1)(e)/8(1)(j) of RTI Act, the furnishing of the same to appellant can be considered. Relying on the decision passed in the case of Supreme Court of India Vs. Subhash Chandra Agarwal AIR 2010 Del 159 it was observed that "personal information including income tax returns cannot be disclosed unless the bar against disclosure is lifted by establishing sufficient public interest in disclosure and disclosure even than can be made only after duly notifying the third party and after considering his views." Information relating to income tax matters of an assessee cannot be disclosed to third party unless the CPIO is satisfied that larger public interest justifies the disclosure of such information. However, the spirit and content of the earlier Order dated 18.10.2021 of First Appellate Authority is hereby reminded to CPIO, while finalizing the reply to appellant."
The CPIO provided a reply in compliance with the FAA's order on 09.06.2022 stating as under:
"5. The Space Engineers Welfare Society was given another opportunity to provide the reason along with material evidence as to why the information sought is exempted u/s 8(1)(e) of the RTI Act. The reply of the institution was received wherein they have stated that they do not give their consent for sharing any information with anyone. They have further mentioned that Sarabhai Institute of Science and Technology is a private self-financing engineering college under Space Engineers Welfare Society and not receiving any financial aid from either government of Kerala or government of lndia- lt is not a public organization and no public interest is involved and hence does not come under the purview of RTl. The respondent has further stated that the applicant had requested information through RTI from various agencies, viz., AICTE, CUSAT, KTU, Vellanad Grama Panchayath, State Public lnformation Commission etc. and the same has been rejected.
6. The said society is having registration under section 124 of the lncome Tax Act, 1961 and are claiming several tax exemptions/benefits under the said Act, which demands greater degree of transparency and accountability. Accordingly, income tax refund particulars along with other information, within the purview of disclosure, have already been furnished to the applicant.
7. With regard to information sought by the appellant, it is to be stated that such information filed by the assessee is personal in nature and divulging such information may have serious implications for the privacy of the assesee. Such information, which is decidedly personal, could not be disclosed to a third party. Allowing access to such privileged information furnished by the assessee to their public authorities shall be a gross intrusion into the privacy of the assessee 5 concerned. The respondent society has asserted that such information lies with them in fiduciary capacity. Section 8(1)(e) of the RTI Act 2005 exempts information available to a person in his fiduciary relationship from disclosure unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. Further, in this connection, reliance is placed on the decision of Apex Court in Supreme Court of lndia Vs.Subhash Chandra Agarwal AIR 2010 Del 159 wherein it has been observed that "personal information including income tax returns 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 party and after considering his views." Therefore, I am of the opinion that the respondent's personal particulars sought for cannot be provided to the appellant."
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video conference.
Respondent: Ajitha, ITO & CPIO present through video conference.
The Appellant stated that his arguments are contained in the written submissions filed by him stating as under:
"2. The Space Engineers Welfare Society, TC 25/557, Plamoodu, Pattom, Thiruvananthapuram which is mentioned as third party in the reply of CPIO is registered as Charitable Trust, having register No. 958/95 in the Thiruvananthapuram district under Travancore Cochin Literary Scientific and charitable societies Registration act. The society is registered in the income tax department under section 12A of Income tax act, 1961. Its PAN number is AAETS4072N and status of the trust is as AOP (Trust) and it is assessed in Exemption Circle, Income tax department, Thiruvananthapuram. The society is fully exempted from paying income tax. The entire income tax amount recovered through TDS is eligible to refund society by filing income tax returns ITR-7.
The society is a public charitable trust meant for benefit of people, it is a non-profitable organization and its activities fall in public domain. Larger public interest involved in this case. Hence the Space Engineers Welfare Society is placed in the public domain. Order of Central Information Commission in the case Rakesh Agarwal vs CBDT (File No. CIC/LS/A/2009/0190 dated 09/03/2010), Judgement of the case Rajendra Vasanthalal shah vs Central Information Commission (AIR 2011 6 Guj 70) clearly shows Space Engineers Welfare Society is come in the public domain. Order of CPIO, Exemption Circle,TVM bearing No. ITBA/RTI/F/2021- 22/1039346492 (1) dated 03/02/2022 which is attached to the application dated 28-02-2022 is also shows that third party Space Engineers Welfare Society is placed in the public domain.
3. The Space Engineer Welfare Society is considered as public authority under section 2(h)(ii) of RTI act. Appellant refers the orders of Central Information Commission in the case Subhash Chandra Aggarwal vs Indian National Congress on 03/01/2022 (File No. CIC/SM/C/2011/001386, File No. CIC/SM/2011/000838) and Biswamber Nayak vs Batra Hospital & Medical Research Centre (File No. CIC/ AD/C/2013/ 001304-SA, CIC/AD/C/2013/000276-SA) in this regard.
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5. The order of CPIO, Exemption ward dated 08/03/2022 is void and wrong. CPIO has violated the provisions of the RTI act.
(i) CPIO failed to comply section 11 of RTI act. CPIO has not sent notice to the third party under section 11.
(ii) CPIO, Exemption ward relied earlier reply of third party dated 01.01.2022 in the application dated 19-12-2021 and the reply was already rejected by CPIO, Exemption Circle vide Order No. ITBA/RTI/7/2021-22/1039346492 (1) dated 03/02/2022. The third party did not challenge the CPIO's order under section 19 of the RTI act. The decision of CPIO was accepted by third party. The attempt of CPIO, Exemption ward highlighting the rejected version of third party is very improper.
(iii) The application dated 28.02.2022 submitted by appellant is under larger public interest. The CPIO could not establish third party has no larger public interest and information sought for is related to personal information.
(iv) The CPIO Exemption ward has not made any comment on the order of CPIO dated 03-02-2022 which is attached to the application.
(v) The third party has registration under section 12A of income tax act. The third party has not denied the fact that the society is a public charitable trust meant for benefit of people, and they are enjoying income tax exemption. Hence information related to the third party is attracted under the section 8 (2) of RTI act and the third party is under section 2(h)(ii) of RTI act.
(vi) The CPIO, Exemption ward intentionally prevented from supplying the requested document meant for unduly helping third party, violating orders of CIC and Judgments."
The CPIO submitted that all the material facts and their arguments are already on record and she has nothing further to add in the matter.
7Decision:
The Commission observes that an order of this bench passed vide File No. CIC/CBODT/A/2021/125672 in a similar case has been stayed by the Hon'ble High Court of Delhi in W.P(C) 340/2023 & CM APPL.1348/2023 on 12.01.2023 in the matter of CPIO Vs. Kailash Moondra.
Since the factual matrix and relief for determination in the instant case is identical to the averred case whose order has been stayed, and the matter is pending adjudication of the Court, the Commission does not find it proper to proceed with the instant matter at this stage.
Having observed as above, the matter is adjourned sine die.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8