Central Information Commission
Amar Singh Choudhary vs Chief Commissioner Of Income Tax (Cca) , ... on 28 November, 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.:- CIC/CCABH/A/2018/618586-BJ
Mr. Amar Singh Choudhary
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Income Tax Officer, Ward 2(5)
Ministry of Finance, Dept. of Revenue
Office of the Income Tax Officer, Ward 2(5)
Annexe Building, Napier Town
Jabalpur, Madhya Pradesh - 482001
... ितवादीगण /Respondent
Date of Hearing : 26.11.2019
Date of Decision : 28.11.2019
Date of RTI application 12.12.2017
CPIO's response 10.01.2018
Date of the First Appeal 12.02.2018
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide his RTI application sought information on 03 points in respect of correspondence for calling case records of proceedings u/s 153A of the IT Act, 1961 in the case of Mokha Builders before allowing expenses of Rs. 30 lakh by the then ITO Shri Steny Xavier in the case of the Applicant for the A.Y. 2009-10 and other issues related thereto.
The CPIO, vide its letter dated 10.01.2018, provided a point-wise response to the Appellant wherein for points 01 & 02, stated that all the facts had already been recorded in the Assessment Order and the copy of the Assessment Order dated 27.03.2015 had already been served on the Assessee. With regard to point 03, the information sought was denied under Section 8(1) (g) and
(h) of the RTI Act, 2005. Dissatisfied by the response of CPIO, the Appellant approached the FAA. The Order of the FAA, if any, is not on the record of the Commission.Page 1 of 7
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Sughosh Bhamore (Adv.) Appellant's representative, through VC; Respondent: Mrs. Padmini Gondane, ITO 2 (5) through VC;
The Appellant's representative reiterated the contents of the RTI application and stated that the present Second Appeal had been filed as recourse to not receiving any order from the FAA within the statutory time limit of 45 days. The Appellant filed First Appeal on 12th February, 2018 and waited for a period of 77 days i.e. till 1st May, 2018 and due to non receipt of any order, he approached the Commission. The FAA had only responded after filing of the Second Appeal i.e. on 5th May, 2018 which was received by him on 7th May, 2018 and further submitted that the cause of delay mentioned by the Appellate Authority was also not tenable. Furthermore, while contesting the response provided by the CPIO on point no. 01, he submitted that he had specifically sought for the copies of correspondence for calling case records u/s 153A of the IT Act, 1961 in the case of Mokha Builders, as it would serve as the prima facie evidence that an inquiry was instituted by ITO Shri Steny Xavier before allowing the expense of Rs. 30 Lakhs. He further submitted that the Appellant was only asking for the correspondence made by Shri Steny Xavier for calling the records of Mokha Builders u/s 153 A and not the actual records, therefore, the same should be provided by the CPIO. With regard to point 02, the Appellant's representative submitted that the Assessing Officer Shri Steny Xavier had put up an office note in the office copy of the Assessment Order and that this Office Note contained the information that an inquiry was done and only then deduction of Rs. 30 Lakh was allowed and that the Office Note was not a part of the Assessment Order, thus the claim of the CPIO that the information sought was part of the Assessment Order dated 27th March, 2015 was unfounded. Therefore, he requested the Commission to provide him the requisite information since it was related to his own case and that he required it to produce before the ITAT to substantiate his case and to prove his bonafide. As regard point 03, he submitted that the copy of Inspector's Report had been erroneously denied by the Respondent under Section 8(1) (g) and (h) of the RTI Act, 2005. He further submitted that there is no endanger to the life or physical safety of any person who conducted the inquiry, however, his name could be severed following the provisions of Section 10 of the RTI Act, 2005. In support of his contention, he referred to the decision of the Commission in the matter of Mr. Sujit Kumar Mazumder, Advocate v. CBI dated 13th July, 2011 in CIC/SM/A/2011/000318/SG/13429 wherein the information sought was furnished to the Applicant applying the principle of severability. As regards Section 8(1) (h) of the RTI Act, 2005, cited by the Respondent, it was submitted that as per the decision of the Hon'ble High Court in the matter of Bhagat Singh v. CIC & Ors. WP(C) 3114/2007, the onus is upon the Respondent to prove how the disclosure of information would impede the process of investigation or prosecution of the offenders since the matter under consideration, investigation had already been completed and therefore, the information sought should be provided to him. In its reply, the Respondent submitted that the information sought had already been provided to the Appellant which was again contested by the Appellant's representative. However, the Respondent agreed to furnish a revised reply as per the provisions of the RTI Act, 2005 to the Appellant.
The Commission was in receipt of a written submission from the Appellant's Advocate dated 19.11.2019 wherein while narrating the background of the case, he relied upon the decision of the Hon'ble High Court in the matter of Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 and the decision of the Commission in Appeal No. CIC/SM/A/2011/000318/SG/13429 in support of his Page 2 of 7 contention. He further submitted that the desired information and the documents pertained to Appellant's own case and it is his obligation to produce the same before the ITAT in support of his contention. Therefore, it was prayed to the Commission to provide him the requisite information as sought in the RTI application.
With regard to point numbers 01 and 02 of the RTI application wherein generic information regarding correspondence for calling case records of proceedings u/s 153A of the IT Act, 1961 in the case of Mokha Builders before allowing expenses of Rs. 30 lakh by the then ITO Shri Steny Xavier for the A.Y. 2009-10 and the corresponding office note written by the then ITO Shri Steny Xavier was sought by the Appellant in his own case.
In this context, the Commission referred to the decision of the Hon'ble High Court of Delhi in Sudhiranjan Senapati vs. Union of India decided by the Hon'ble High Court of Delhi in W.P. (C) 7048/2011 dated 05.03.2013 which is relevant to the facts of the present case wherein it was held as under:-
"12.1 It appears in that case the petitioner, who was being criminally prosecuted for having fraudulently reduced the quantum of excise duty to be paid by an assessee, while passing an adjudication order, had sought information with regard to: note sheets; correspondence obtaining qua the material in the file of the CBI; correspondence in the file of the CVC pertaining to the matter; and correspondence in the file of the Department of Vigilance, CBES.
12.2 A close perusal of the nature of information sought seems to suggests that much of it may have been material collected during the course of investigation, the disclosure of which could have perhaps hampered the prosecution of the petitioner.
13. Therefore, in my view, in such like cases when, the State takes a stand the information cannot be disclosed; while dilating on its stand in that behalf, the State would necessarily have to, deal with the aspect as to how the information sought, is of such a nature, that it could impede prosecution. Much would thus depend, on the nature of information sought, in respect of which, a clear stand needs to be taken by the State, while declining the information. The burden in this regard is on the State [see B.S. Mathur Vs. Public Information Officer of Delhi High Court, 180 (2011) DLT 303]
14. With the aforesaid observations in place, the writ petition is allowed. The order of the CIC is set aside. The respondents will supply the information sought for by the petitioner within three weeks from today, after redacting names of officers who wrote the notes or made entries in the concerned files."Page 3 of 7
A reference can also be made to the decision of the Hon'ble High Court of Delhi in the matter of Union of India vs. D.N. Kar in W.P. (C) 4056 of 2008 and CM Nos. 7869 and 10885 of 2008 dated 14.09.2010, wherein it was held as under:
"11. In the considered view of this Court, the above submissions are misconceived. The Respondent is seeking information only about himself being included in the Agreed List. There is no question of the Department invoking the right to privacy of the Respondent to deny him information concerning him which is held by them. The apprehension that such information may tarnish the reputation of the Respondent is also misconceived. It is also the Respondent himself who is asking the information on the material on the basis of which his name was included in the "Agreed List".
Moreover, the period during which the Respondent's name was included in the "Agreed List" has long come to an end. The period during which he was kept under surveillance is over. By disclosing to the Respondent the material on the basis of which his name was included in the Agreed List, there is no danger of, the purpose of placing him under surveillance, being defeated.
12. As regard inputs that might have been given to the Department by certain persons in a fiduciary capacity, this Court finds that the CIC has, in its impugned order dated 3rd April 2008, adequately accounted for such contingency. It has been directed by the CIC that the CPIO is free to withhold the names of the officials who might have provided critical inputs and recommended the inclusion of the Respondent's name in the Agreed List. Further, the CPIO has also been permitted by the CIC to withhold the name of the complainant, if any, in the matter.
13. This Court concurs with the view expressed by the CIC that if the Respondent feels that his name was wrongly included in the Agreed List for three years continuously and that such inclusion is indeed a stigma on his career and, therefore, he wishes to prove his innocence, he cannot be deprived of such an opportunity by withholding the material on the basis of which his name was so included. Adequate safeguards have already been provided for by the CIC in its impugned order. In the circumstances, there can be no justification for the Petitioner to deny the Respondent the information sought by him."
While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission in this regard referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
Furthermore, the Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed that Page 4 of 7 ".....The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
In point number 03 of the RTI application information regarding the copy of Inspector's Report submitted by the then Inspector in respect of enquiry conducted by him was sought by the Appellant. In this context, the Commission observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to the provisions enshrined under Section 8 of the RTI Act, 2005.
It was also observed that as per Section 10 of the RTI Act, 2005 all such information relating to the name and designation of officers in the note sheets/ correspondences could be severed to provide the remaining information. In this context, a reference was made to the decision of the Hon'ble High Court of Delhi in its decision dated 7/10/2013 [W.P. (C) 4079/2013 Union Public Service Commission vs. G S Sandhu] wherein while observing that denial of notings altogether was not justified directed to block the name, designation or any other indication which disclose or tend to disclose the identity of author, it was held as under:Page 5 of 7
"11. In my view, the apprehension of the petitioner that if the identity of the author of the file notings is revealed by his name, designation or in any other manner, there is a possibility of such an employee being targeted, harassed and even intimidated by the persons against whom an adverse noting is recorded by him on the file of UPSC, is fully justified. Though, ultimately it is for the members of the UPSC who are to accept or reject such notings, this can hardly be disputed that the notings do play a vital role in the advice which UPSC ultimately renders to the concerned department. Therefore, the person against whom an adverse advice is given may hold the employee of UPSC recording a note adverse to him on the file, responsible for an adverse advice given by UPSC against him and may, therefore, harass and sometime even harm such an employee/officer of UPSC, directly or indirectly. To this extent, the officers of UPSC need to be protected. However, the purpose can be fully achieved by blocking the name, designation or any other indication which would disclose or tend to disclose the identity of the author of the noting. Denying the notings altogether would not be justified when the intended objective can be fully achieved by adopting such safeguards."
In this context, a reference can be made to the decision of the Hon'ble Supreme Court in the matter of Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors (Civil Appeal No. 6454 of 2011) wherein it was held as under:
"28.........the information as to the names or particulars of the examiners/coordinators/scrutinisers/head examiners are therefore exempted from disclosure under Section 8 (1)(g) of RTI Act, on the ground that if such information is disclosed, it may endanger their physical safety. Therefore, if the examinees are to be given access to evaluated answer-books either by permitting inspection or by granting certified copies, such access will have to be given only to that part of the answer-book which does not contain any information or signature of the examiners/co- ordinators/scrutinisers/head examiners, exempted from disclosure under Section 8 (1)(g) of RTI Act."
Furthermore, the Commission referred to the decision of the Hon'ble High Court Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 wherein it was held as under:-
"13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become a haven for dodging demands for information."
Furthermore, the Hon'ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 had held that :
"19. The question that arises for consideration has already been formulated in the Court's order dated 21st April 2011: Whether the disclosure of the information sought by Page 6 of 7 the Petitioner to the extent not supplied to him yet would "impede the investigation" in terms of Section 8(1)(h) RTI Act" The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation...............
22. ...........The mere pendency of an investigation or inquiry is by itself not a sufficient justification for withholding information. It must be shown that the disclosure of the information sought would "impede" or even on a lesser threshold "hamper" or "interfere with" the investigation. This burden the Respondent has failed to discharge."
The Respondent could not contest the submissions put forth by the Appellant's representative or to substantiate any additional facts which outweighs the disclosure of information.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of above referred decisions of the Superior Courts, the Commission directs the Respondent to re-examine the RTI application and furnish information on all the three points as raised by the Appellant in his RTI application as held on their record following the procedure laid down under Section 10 of the RTI Act, 2005, within a period of 15 days from the date of receipt of this order respecting the spirit of the RTI Act, 2005, as agreed.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed with the above direction.
(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: 28.11.2019
Page 7 of 7