Central Information Commission
Mr.Rakesh Kumar Gupta vs Itat on 22 June, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/LS/A/2010/000378 & 379 both dated 12.4.2010
Right to Information Act 2005 - Section 19
Appellant - Shri Rakesh Kumar Gupta
Respondent - Income Tax Appellate Tribunal (ITAT)
Income Tax Department
Date of hearing: 4.6.2010
Decision announced: 22.6.2010
Facts:
These are two appeals moved by Shri Rakesh Kumar Gupta of Shalimar Bagh, New Delhi.
1) File No. CIC/LS/A/2010/000378 In this application Shri Gupta has sought the following information from CPIO, ITAT on 9.12.09:
"1. Inspection of all the records related to Appeal DC 11(1) vs. Escorts Ltd. A.Y. 2001-02, Ref: Appeal ITA No. 1562/Del/05 (other than Escorts Ld. A. Y. 2001-02 appeal ITA No. 567/Del/05-Bench G).
2. Inspection of all the records related to ITA No. 3794/Del/2008.
Assessment Year 2005-06. - M/s Escorts Heart Institute & Research Centre Ltd. vs. Asstt. Commissioner of Income Tax Central Circle-3. ITA No. 37/Del/2009 - A.Y 2005-06 - Dy. CIT Central Circle-3, vs. M/s Escorts Hearts Institute & Research Centre Ltd. decided on dated: October 9, 2009.
3. Kindly provide the form, procedure, rules through which third parties are allowed to become intervener. As allowed in ITA No. 3370/Del/08 M/s Concept Creations, Pan/GIR No. AAAFC 6948 H vs. Addl. CIT Range, Panipat - A.Y. 2005-06. This is Section 4 of RTI Act, 2005 information.
4. Kindly provide the procedure (and to whom to deposit and form of request letter and deposit challan etc.) for the Inspection and copying fee (for inspection and copies as per ITAT Rules).
5. Inspection of all records related to Section 4 of RTI Act, 2005 compliance. Kindly provide also provide the procedure and to whom vigilance complaints too be made for ITAT.
6. Kindly provide copy of documents including note sheet / orders pointed out at the time of inspection for above requests."1
To this Shri Rakesh Kumar Gupta received a response dated 1.2.10 from CPIO Shri R.P. Tolani, Judicial Member, ITAT informing him as follows:
"At the time of hearing you also requested for inspection of office manual which was provided immediately and same has been acknowledged by you.
2. Your attention is invited to Para 3 & 4 of letter dated 8.1.2010 in which you are requested to establish larger public interest which will be served by your application vis-à-vis 3 rd party in terms of provisions of RTI Act, 2005.
3. During the course of hearing you did not raise any contention in respect of larger public interest as held by Hon'ble Central Information Commission in the case of P. Rajan vs. Office of the CIT, Kottayam, Kerala which is mentioned in our letter dated 8.1.2010. Therefore it is held that you have failed to establish larger public interest as contemplated in the said letter regarding 3rd party. Replies to rest of your queries have been given to you vide letter dated 8.1.2010. As requested at the time of hearing the inspection of office manual has also been provided to you. Therefore, your application stands disposed of accordingly."
Aggrieved, Shri Rakesh Kumar Gupta moved an appeal registered as Appeal No. RTI/Appeal/02A/2010 in which Appellate Authority Shri Veerabhadrappa, Vice President issued orders on 16.3.10 which is discussed together with the orders on the following application since both were covered by the same order.
2) File no. CIC/LS/A/2010/000379 By this application Shri Rakesh Kumar Gupta produced a proforma seeking information on various RTI applications regarding ITAT judicial case inspection / copies allowed by ITAT from 1.1.06 to 31.11.09 and on this basis sought the following information:
"3. Inspection of all the case records of the cases mentioned above.
4. Kindly provide copy RECORDS pointed out at the time of inspection."
To this, Shri Rakesh Kumar Gupta received a response on 1.2.10 from CPIO Shri R. P. Tolani informing him as follows:
2"During the course of hearing you did not raise any contention in respect of larger public interest as held by Hon'ble Central Information Commission in the case of P. Rajan vs. Office of the CIT, Kottayam, Kerala which is mentioned in our letter dated 8.1.2010. Therefore, it is held that you have failed to establish larger public interest as contemplated in the said letter. Replies to your queries have been given to you vide letter dated 23.12.2009. As you have requested at the time of hearing, the inspection of office manual has been provided to you immediately and same has been acknowledged by you. Therefore, your application stands disposed of accordingly."
Upon this, Shri R. K. Gupta moved his appeal before Shri G. E. Veerabhadrappa, Vice President, ITAT, registered as appeal No. RTI/02/2010. In his detailed order of 16.3.2010, which was applied in both cases, Shri Veerabhadrappa has come to the following conclusion:
"6. I have heard Shri Rakesh Kumar Gupta, who was present. I have also heard Shri R. P. Tolani, CPIO and Shri K. K. Singh, CAPIO who were also present. Shri R. K. Gupta filed a letter, confining his arguments, seeking inspection of the judicial records. But as already stated, bound by the decision of the CIC in applicant's own case and for the reasons already discussed in my order dated 22.1.2010 in Appeal No. RTI/Appeal/07/2009, pertaining to his case, I am unable to accede to his request. At the cost of repetition, it may again be stated that the request for inspection of judicial record, not pertaining to his case cannot be permitted. 6.1 It must be appreciated that the appellant cannot go on misusing the provisions of the RTI Act to create unnecessary proceedings before the authorities who are expected to do the important government work. To my experience, what I found in the applications and appeals by Shri Rakesh Kumar Gupta is that he is missing the provisions of RTI Act to harass the authorities under the said Act in the name of doing certain public good work, which is known only to his imaginations. Exactly, for this reasons the CPIO wanted to know the larger public interest in seeking the information again and again on this issue. In my view, the learned CPIO has correctly appreciated the facts of the case in the light of the conduct of Shri Rakesh Kumar Gupta, who pretends to be a whistle blower, but a nuisance maker creating nuisance to the public authorities under the shelter of RTI Act. He may be using these provisions just as a black mailing or arms twisting tactics. After all, purpose of the RTI Act is noble and cannot be misused by persons of this nature, wasting public money and the time of the authorities who are supposed to do other important government works.3
6.2 I find from my records, that it is a glaring example of bombarding RTI applications, as observed by the CIC in the case of S. P. Goyal vs. Director of Income Tax (Inv.) Ludhiana dt. 24.1.2008, CIC Digest (Vol.II) 2014 (984). It is also a case of seeking more or less similar information repeatedly. It is in this context that we must appreciate the order of the CPIO. It is also a case of harassment of public authority, as observed by the CIC in the case of Abdul Rafique vs. North Western Railways, Ajmer dt. 25.1.2008, CCC Digest (Vol.II) 2019 (989); and K. Gopinath vs. AICTE, UGC & JNTU dt. 15.12.2006, CIC Digest (Vol.I) 1086. Further, it is not open for the applicant to prescribe a table under which the information requires to be given to him, when the department has not maintained the information in that manner. After all under the RTI Act, he is entitled to the information in the manner it exists. 6.3 In my opinion, the CPIO, after appreciating the conduct of Shri Rakesh Kumar Gupta in putting multiple applications on the same issue, rightly put across to him to establish the larger public interest, which he failed to establish before him, nor did he take any interest to establish such noble purpose before me. As far as judicial record is concerned, it was made clear to him that he is not entitled being a stranger and simply a nuisance maker. As regards the RTI records of the CPIO, Delhi, most of the applications are by him only. At first, he wanted copies of all the RTI applications. When it was pointed out that majority of applications are only by him, he withdrew in relation to his applications but insisted for inspection of applications of other applicants. I am of the view that providing copies of those third parties will only result in interference of privacy of the third party and may cause prejudice to their interests, who sought information from the Tribunal. I, therefore, justify the order of the CPIO, who refrained providing information of third parties to stranger, which may give rise to multiple proceedings against the Tribunal by different information seekers. In other words, the Tribunal will be entering into unnecessary litigation over the issues. Exactly for this reason, in my view the CPIO rightly demanded from him the larger public interest, in seeking the information. I do not find any infirmity in the order of CPIO. Accordingly, the appeal filed by the applicant is dismissed."
Shri Rakesh Kumar Gupta's prayer for relief in both the second appeals brought before us is as follows:
'1. Issue direction to give the information.
2. Penalize under section 20 for delay in providing information and rejecting inspection on false pretext.
3. Direct Public Authority to maintained records as directed under section 4 of the RTI Act, 2005.
4. Any additional payer as Respected Commissioner found deem fit like compensation etc."4
The appeal was heard on 4.6.2010. The following are present:
Appellant Shri Rakesh K. Gupta Respondents Shri Sunil Chopra, Chief Commissioner of IT Central Shri Arun S. Bhatnagar, CIT (C-II), New Delhi.
Shri P. Ray Chaudhuri, Advocate Shri V. M. Mahidhar, ACIT, CC-3, New Delhi.
Shri I. P. Bansal, Judicial Member, ITAT Shri V S. Dhanda, ITO HQ (Exemptions) Shri P Ray Chaudhuri Learned Counsel submitted that as decided by this Commission in P. Rajan vs. Office of CIT Kottayam (Kerala), judicial information cannot be provided unless it serves some larger public interest which Shri R. K. Gupta has been unable to establish. Accordingly, ITAT, which keeps only personal records, has not provided this information to anybody. Upon this, Shri Rakesh Kumar Gupta responded by submitting that he has accepted the response of CPIO to his first questions in application on File No. CIC/LA/A/2010/000379, in which he has sought the list of applications allowed by ITAT. However, in this case he has asked for information under Rule 33 of ITAT rules, which is information on public hearing. This is not personal information but commercial information, which ITAT is bound to provide. Regarding the arguments of not disclosing judicial records, appellant Shri R. K. Gupta invited our attention to his arguments in grounds for appeal, which are as follows:
"All the records are for old period requested by the informer, for which Sec. 8(1)(d) cannot be applied, the correct decision Rakesh Kumar Gupta vs. CIT Decision No CIC/LS/A/2009/000647/SG/5887
-Appeal No. CIC/LS/A/2009/000647 dated 14.12.2009 is applicable in above case. The cases under reference are not in camera proceeding."
We also received written submissions from both parties. In his submission, CPIO Shri I. P. Bansal, Judicial Member-cum-CPIO, Income Tax Appellate Tribunal has submitted as follows:
5"10. It can be seen that applicant has sought inspection of all the records relating to the appeals filed in the cases of above concerns, which means that the applicant, if permitted to have inspection, will have access to all information filed by these partied which is highly personal in nature. The information relating to them cannot be disclosed to the applicant merely because the applicant merely because the applicant consider such information to be public and not personal information. That may be the belief of applicant that it is public information but the third parties have submitted such information to ITAT might be on the understanding that the said information shall never be disclosed to unrelated party as nobody will want to make personal information as public.
11. If providing of such information to the public authority is done with an understanding that they are providing their personal information's to public authority and such information is being held by the public authority knowing full well that is a personal information of the third parties which was not to be ordinarily disclosed, then such information would be construed as personal, unless there is evidence to the contrary. The integrity of such information as personal information is required to be respected by the Public authority who held such information in trust. The applicant in the present case was time and again requested to establish public interest to seek such information belonging to other parties which could not be established, hence CPIO was right in rejecting such request and first appellate authority also is well within its right to reject such appeal.
12. The contentions raised in the above part of this written submissions are well supported by the decision of Central Information Commission in the case of Ms. Raj Kumar W/o Shri Hari Singh vide its order dated 25.3.2008 in F. No. CIC/AT/A/2007/01339."
He has then quoted extensively from the decision of this Commission in this case and on this basis argued:
"13. In the aforementioned case the applicant had required from the Income Tax Department to submit information that how many charitable trust had applied for registration for a particular period. She demanded the names and addresses of all those charitable trust who had applied for registration within that period. She also sought an information that how many of them were denied registration and was asked to furnish the names and addresses of those applicants. She also demanded the copies of orders of all those charitable 6 trust who were denied registration during that period an she also demanded the information that what was the mode of sending the orders pertaining to denial of information an such information was held to be information in the nature of personal information and CPIO was held right to withheld such information u/s 80 (i) (j). The applicant was held to be entitled to get the numbers of the Institution who had applied for registration, the number of trust registration and the numbers of the applicant whose request for registration was rejected. In that case also the applicant was denied to have even the name and address of the trust applicants and the information regarding name and addresses was considered to be an information in the nature of personal information protected by the provisions of 80 (i) (j). For the sake of convenience full copy of the said order is enclosed.
14. Reference can also be made to the decision of CIP in the case of G. R. Rawal Meghaninagar vs. D. G. Of Income Tax (Investigation Ahmedabad) (2008) 2 ID 82 CIC (Del.), wherein the information seeker had sought the following information: -
'Tax payable as per decision of Settlement Commission in the case of Wiprolene Plastics and tax paid by said company."
He has, therefore, pleaded exemption from disclosure u/s 8(1)(j) which in his view is also third party information. Finally Shri Bansal has rested his case on exemption u/s 8(1)(j).
In his written petition Shri Rakesh Kumar Gupta has submitted as follows:
"3. The Income Tax Appellate Tribunal (ITAT) is a judicial authority adjudicating the appeals either filed by the revenue (Income Tax Department) or by the assesses. It is constituted under the Income Tax Act, 1961 (I.T. Act). It is a highest fact finding authority and appeal against its order can only be filed before High Court if any substantial question of law arises. During the process of filing of the appeals an during the course of hearing of these appeals to establish facts and to defend or lodge their cases certain details/ particulars are filed by the respective parties which comprises the details of personal nature. Thus, details comprises of various aspects relating to the commercial and domestic details. For example the name of the parties with whom such person has commercial dealing the copies of 7 contract entered into by him with various entities in the course of his business expenses incurred under various heads, household expenses the details of family members and amount drawn by them in the nature of household expenses the investment made by them in various assets etc."
With this he has attached a copy of the decision in ITA No. 762/Del./2009 (Asst. Year 2001-02) of M/s Big Apple Clothing vs. CIT New Delhi, together with complaint made by him against Shri G. E. Veerabhadrappa, Vice President, ITAT to Minister of Law, Justice & Company Affairs and Central Vigilance Commission. Subsequently, we have received an e-mail from appellant Shri Gupta summarizing his arguments as follows:
Objection is about judicial records decided the ITAT by invoking the Section 8(1)(j) of the RTI Act, 2005 only.
My reply on the above objection is,
1. Public interest to curb corruption in administration of Justice. To curb corruption in administration of Justice (public interest) all the proceeding in the justice administration is Public. ITAT proceeding is public as per ITAT Rule 33.
2. It is very strange, what is public information as per Rule 33 of ITAT is stated to be covered under Section 8(1)(j), very absurd augment. (Public commercial information used to decide public action is stated to be confidential information and covered u/s Section 8(1)(j))
3. Decision cited by the L: D CPIO in his supports are not applicable in the present case due to following reasons.
1. The information is public as per law of Country, whereas in the cases cited by the opposite party, information is not public as per law.
2. Similar organisation CESTATE (like the ITAT) had by order declared all its record as public information and giving the same in lesser period than the period given under the RTI act, 2005. (In detail it is given page 13 to 14 of appeal)
3. The decision is subordinate to Delhi High Court/ Supreme Court of India, therefore Principal / rules made by them (Superior Forums) has to be followed.
Basic Rules framed for interpreting the RTI Exemption by the Delhi High Court in the Bhagat Singh case (WP(C) No.3114/2007 Date of decision: December 03, 2007 BHAGAT SINGH (Petitioner) Versus CHIEF INFORMATION 8 COMMISSIONER and ORS. Central Information Commission File Ref: Appeal No.35/IC (A)/06- F. No.CIC/MA/A/2006/00108 Dated, the 8th May, 2006) to while applying the exemption clause. Justice S. Ravindra Bhat, J.
Rule 1: As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
( From Para 12 Page 6 of the order) Rule 2: 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.
( From Para 13 Page 6 of the order) Rule 3 : A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; . .........
Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted.
( From Para 14 Page 6 of the order) DECISION NOTICE We cannot accept the argument that because the information held by ITAT is in the form of only judicial record, such record is outside the purview of the RTI Act. The Supreme Court of India and High Courts, all have rules for disclosure of information both administrative and judicial. The only requirement is that applicant must adhere to the particular rules in making an application under the RTI Act. This Commission has also examined the rules made by the competent authorities in these cases in light of the RTI Act and where required has, under the authority vested in the Commission under sub sec. 5 of Sec. 25 and directions permissible u/s 19(8)(a) advised / directed the concerned Courts to rectify such rules or has, as was usual in most cases, upheld these, as being 9 consistent with the RTI Act. In the case of ITAT, which is a part of Government, the rules regarding the means of disclosure of information with regard to carrying out the provisions of the Act and fees / costs to be charged are covered by rules 27(1) & 28 in both of which appropriate Government and the competent authority are defined in sec. 2(a) & 2(b). Clearly ITAT will fall under the appropriate Government described in Sec. 2(a).
This brings us to the question of whether the information sought by appellant Shri Rakesh Kumar Gupta is to be treated as information, the disclosure of which would amount to invasion of privacy. Sec 8(1) (j) is the clause relied upon by respondents in refusing information. In the case of Ms. Raj Kumari vs. Chief Commissioner of Income Tax, Haryana, in File No. CIC/AT/A/2007/01339 dated 25th March, 2008, relied upon by respondents, we have decided as follows:
" In overall consideration of the submissions made during hearing and after considering the records and documents placed before me, it is directed that respondents will disclose the statistical details about the information requested by the appellant ― the numbers of those who applied for registration as Trusts, the numbers of the Trusts registered and the numbers of the applicants whose request for registration was rejected― shall be provided to the appellant within 2 weeks from the date of the receipt of this order. No information regarding the names and addresses of the applicant- Trusts shall be disclosed to the appellant."
In both the cases at present before us in appeal, what appellant Shri Rakesh Kumar Gupta has sought is inspection of case files of third parties. The decision of this Commission upon which appellant Shri Gupta has relied CIC/LS/A/2009/000647 dated 14.12.2009, has been stayed. Earlier decisions of this Commission like the one quoted above will clearly apply in this case. Equally clearly, Sec 8 (1) (j) or indeed the state cannot apply to the following information sought in File No CIC/LS/A/2010/000378:
7. Kindly provide the form, procedure, rules through which third parties are allowed to become intervener. This is Section 4 of RTI Act, 2005 information.10
8. Kindly provide the procedure (and to whom to deposit and form of request letter and deposit challan etc.) for the Inspection and copying fee (for inspection and copies as per ITAT Rules).
9. Inspection of all records related to Section 4 of RTI Act, 2005 compliance. Kindly provide also provide the procedure and to whom vigilance complaints too be made for ITAT.
10. Kindly provide copy of documents including note sheet / orders pointed out at the time of inspection for above requests Therefore although both appeals are, therefore, dismissed in regard to inspection of files. However, with regard to the remaining information sought, the above information suo moto disclosure of which is mandated by Sec 4 (1) (b)(vii),
(xv) and (d) of the Act will be provided to appellant Shri RK Gupta within ten working days of the receipt of this Decision Notice. Appeal No .
CIC/LS/A/2010/000378 is allowed to this extent Nevertheless, we must observe that the decision of the Appellate Authority Shri G.E. Veerabhadrappa, Vice President IT quoted by us extensively above, seems moved more by animosity in coming to his conclusions than in reliance upon the law. We have indeed held in our earlier decision and again by means of the present decision that disclosure of personal information will amount to invasion of privacy unless a public interest is disclosed. But as decided by us in at one of the cases, there is more than simply personal information that has been sought. In the present two cases, appellant Shri Rakesh Gupta represents a class of persons created by the ITAT itself to generate information regarding delinquent activities of tax payers. In doing this, it cannot treat such a resource as a mere pest but must accept responsibility for this requirement. It may be kept in mind that this resource is sustained only by financial returns promised by disclosure about delinquent tax payers to the Department. While encouraging such an activity, the Income Tax Department cannot then seek to keep itself aloof from the consequences. With these observations, the present appeals are disposed of.
11Reserved in the hearing, this decision is announced on this twenty second day of June, 2010 in open chambers. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 22.6.2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 22.6.2010 12