Central Information Commission
Vaibhav Rajam vs Chief Commissioner Of Income Tax (Cca) , ... on 26 June, 2020
Author: Neeraj Kumar Gupta
Bench: Neeraj Kumar Gupta
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग,मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या/Second Appeal No. CIC/CCITM/A/2019/106692
Vaibav Rajam ... अपीलकताग/Appellant
VERSUS
बनाम
CPIO, O/o the Income Tax Officer, ...प्रनतवािी/Respondent
Thane.
Relevant dates emerging from the appeal:
RTI : 09-08-2018 FA : 01-10-2018 SA : 13-02-2019
CPIO : 21-09-2018 FAO : 25-10-2018 Hearing : 22-06-2020
ORDER
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), O/o the Income Tax Officer, Thane seeking following information:-
"Please provide copies of all Audit reports submitted by 'Lokmata Savitribai Phule Mahila Sahakari Bank (Patasanstha), Kharegaon Naka, Kalwa' to income tax department from its establishment till date."
2. The CPIO responded on 21-09-2018. The appellant filed the first appeal dated 01-10-2018 which was disposed of by the first appellate authority on 25-10- 2018. Thereafter, he filed a second appeal u/Section 19(3) of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO u/Section 20 of the RTI Act, 2005 and also to direct him to provide the sought for information.
Hearing:
3. The appellant, Mr. Vaibav Rajam attended the hearing through video conferencing. Smt. Valsala Pillai, Income Tax Officer participated in the hearing Page 1 of 10 representing the respondent through video conferencing. The written submissions are taken on record.
4. The appellant submitted as follows:-
"Lokmata Savitribai Phule Mahila Sahakari Bank (Patasanstha), Kharegaon Naka, Kalwa is a credit cooperative society registered according to provisions of the Maharashtra Cooperative Society Act, 1960, therefore it cannot be considered as an "Individual" and its information cannot be treated and protected as a "Personal Information" as envisaged in the Section 8(1)(j) of Right to Information Act, 2005 (the "Act").
The Hon'ble High Court of Delhi in the decision of Naresh Kumar Trehan v. Rakesh Kumar Gupta in W.P.(C) 85/2010 & CM Nos.156/2010 & 5560/2011 dated 24.11.2014 while observing the same has stated as below:
"20. It has been contended by the petitioners that the expression "personal information" must also extend to information relating to corporate entities. Inasmuch as they may also fall within the definition of expression "person" under the General Clauses Act, 1897 as well as under the Income Tax Act, 1961. However, I am unable to accept this contention for the reason that the expression "personal information" as used in clause (j) of Section 8(1) of the Act has to be read in the context of information relating to an individual. A plain reading of the aforesaid clause would indicate that the expression "personal information" is linked with "invasion of privacy of the individual". The use of the word "the" before the word "individual" immediately links the same with the expression "personal information".
The above paragraph also has been cited in the CIC's order of Mr. Ram Kumar vs CPIO and Asst. Commissioner of Income Tax (E) (Second Appeal No.: - CIC/BS/A/2016/001647-BJ). Still in the instant case, the information has been rejected by PIO stating the Section 8(1)(j) of the Act (please see the reference no. 3) which is not correct according to the Act.
2. According to the prevailing judgement of the High Court of Judicature at Bombay, Bench at Aurangabad "Jalgaon Jilha Urban Co-Op Banks Association Ltd vs The State of Maharashtra and Others" (Writ Petition No.1304 of 2008 with Civil Application No.15469 of 2016), where a relief claimed by petitioners for declaring the urban cooperative banks, cooperative financial institutions, Patpedhis and other cooperative societies which are registered under the Maharashtra Cooperative Societies Act, 1960 Page 2 of 10 as 'Public Authorities' within the meaning of Section 2(h) of the Right to Information Act was denied by the Hon'ble High Court, the relevant extract of the decision is mentioned below:-
"10) The provisions of the Maharashtra Cooperative Societies Act if read with the definition of information given in section 2(f) of the Act, it can be said that everything which is mentioned in the definition of information needs to be supplied by the cooperative institution to the authority created under the Cooperative Societies Act. The definition of 'Public Authority' given in section 2(h) shows that such public authority can be created by any law made by the State Legislature. It is already observed that the officers like Registrar and his subordinate officers are appointed under the Cooperative Societies Act and they have the control over the aforesaid things. In view of these circumstances, the observations made by the Apex Court in the paragraphs already quoted can be used safely when the information is sought from the authority like Registrar or his subordinates under the Cooperative Societies Act. Thus, the reliefs claimed in the present petition cannot be granted as the reliefs can be used directly or indirectly by the cooperative institutions to deny the supply of the information. The circumstances that the other matters were allowed by this Court, other Bench of this Court, cannot come in the way of giving present decision by this Court as the decision of the Supreme Court was not there when other matters were decided by this Court.
This Court holds that no relief which is claimed in the present petition can be given to the petitioner. The previous interpretation made by this Court is not correct interpretation in view of the law laid down by the Apex Court. In the result, the petition stands dismissed. Rule is discharged. Civil Application is disposed of."
3. Considering the above contentions 1 & 2, the Section 11 of the Act should not have been invoked according to the Act, because the abovementioned entity (i.e. the credit cooperative society registered according to provisions of the Maharashtra Cooperative Society Act, 1960) should not have been treated as "Third Party". Thus, the asked information also does not come into the purview of "Third Party Information" as envisaged in the Section 11 of the Act. Still, the PIO has treated the said entity as a "Third Party"
Page 3 of 10(and its information as "Third Party Information") which is not correct in the view of the Judgement mentioned in contention no.
2.
4. Without prejudiced to the contention no. 3, I, myself (the Appellant) and other members of my family are the customers of the abovementioned credit cooperative society. The said credit cooperative society has blocked our funds/deposits; thus, they have caused the "deficiency in service" according to the Consumer Protection Act. The Appellant and his family members have filed the consumer complaint against the said credit cooperative society (Case No. CC/646/2019 at Thane District Consumer Forum), hearing of which is yet awaited. Nevertheless, the said credit cooperative society should not be treated as a "Third Party" for the appellant in the capacity of being a customer, because the appellant has the right to information, not only because of the statutory right given under Section 3 of the Act; but also, because of the constitutional right given under Article 19(1)(a) of the Constitution of India as well as basic principles of the Natural Justice."
5. The respondent submitted as follows:-
"The information sought by the applicant is related to the third party. Therefore, the then CPIO & Income Tax Officer, Ward- 3(5), Thane has not provided the information considering the section of 11 of RTI Act, 2005. Further, the first Authority dismissed the appeal of the applicant. The applicant in the instant case has not made a bonafide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the Institution u/Section 8(1)(j) of the RTI Act. It is seen that the applicant has not succeeded in establishing that information sought for is for the larger public interest. The Audit Reports filed by the assessee before the Income Tax Authorities are personal as well as fiduciary entrustment and hence, attracts the exemptions u/Section 8(1)(e) and Section 8(1)(j) of the RTI Act. The information required by the applicant is third party information to which the third party has objected. Therefore, information cannot be given to the applicant."
Decision:
6. This Commission observes that the matter involves determination of certain legal issues with regard to the applicability of the exemptions u/Sections 8(1)(j) and 8(1)(e) of the RTI Act, 2005 r/w section 2(n) and Section 11 of the RTI Act, 2005. Leading to the factual matrix of the case, this Commission observes that Page 4 of 10 'Lokmata Savitribai Phule Mahila Sahakari Bank (Patasanstha), Kharegaon Naka, Kalwa' did not give their consent for disclosing the information to the appellant vide their objection letter dated 11-09-2018 in response to the notice u/Section 11(1) of the RTI Act, 2005. On this point, the appellant has contended that 'Lokmata Savitribai Phule Mahila Sahakari Bank (Patasanstha), Kharegaon Naka, Kalwa' is not an individual as per Section 8(1)(j) of the RTI Act, 2005 and hence, cannot be treated as 'third party' u/Section 2(n) of the RTI Act, 2005 since it is a society registered under the Maharashtra Cooperative Society Act, 1960. In this regard, it is apt to quote 'Section 2(n)' of the RTI Act, 2005 which reads as under:-
"2(n):- "third party" means a person other than the citizen making a request for information and includes a public authority."
7. Section 11 of the RTI Act, 2005 which deals with the 'third party information' reads as under:-
"11. (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under Page 5 of 10 section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.
(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision."
8. With regards to Section 2(n) r/w Section 11 of the RTI Act, 2005, this Commission refers to the judgment dated 13-11-2019 of the Hon'ble Supreme Court of India in Civil Appeal No. 10044 of 2010 & Ors. titled as CPIO, Supreme Court of India v. Subhash Chandra Agarwal, wherein, it has been observed as follows:-
"77...The definition of a "third party" includes a public authority. 'Third party information' is information which relates to or has been supplied by any other person (including a public authority) other than the information applicant and has been treated as confidential by such third party."
9. According to section 2(n) of the RTI Act, 2005, 'third party' means a person other than the citizen making a request for information and also includes a 'public authority'. Therefore, the credit cooperative society registered under the Maharashtra Cooperative Society Act, 1960 can very well be considered within the definition of 'third party'. In view of this, 'Lokmata Savitribai Phule Mahila Sahakari Bank (Patasanstha), Kharegaon Naka, Kalwa' being other than the appellant and the respondent herein is treated as 'third party' u/Section 2(n) of the RTI Act, 2005.
10. As per Section 11 of the RTI Act, 2005, the moment CPIO puts in motion the third party notice intending to disclose the confidential information relating to or supplied by the third party, he gives a chance to the third party to voice any objections which could be based on the exemptions under the RTI Act, 2005. In this case, the CPIO has accepted the objections raised by the third party and has further formed an opinion not to disclose this information. Henceforth, this Commission proceeds to decide the matter on two counts:- (i) whether the information is exempted and, (ii) whether the appellant has shown any larger public interest in disclosure which outweighs in importance any possible harm or injury to the interests of the third party.
11. The appellant has sought very wide information regarding the tax audit report filed by 'Lokmata Savitribai Phule Mahila Sahakari Bank (Patasanstha), Kharegaon Naka, Kalwa' with the income tax department since the date of its Page 6 of 10 establishment. On the information part with regards to the applicability of Section 8(1)(j) of the RTI Act, 2005 regarding non-disclosure of the documents forming part of the income tax proceedings of an assessee, this Commission refers to the judgment dated 03-10-2012 of the Hon'ble Supreme Court of India in SLP(C) No. 27734 of 2012 titled as Girish Ramchandra Deshpande v. Central Information Commission & ors., wherein, it has been held as under:-
"12. The petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the abovementioned information sought for qualifies to be "personal information" as defined in clause (j) of Section 8(1) of the RTI Act.
13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
14. The details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is Page 7 of 10 satisfied that the larger public interest justifies the disclosure of such information.
12. With regards to the import of the term 'person' and enclosures filed by 'Lokmata Savitribai Phule Mahila Sahakari Bank (Patasanstha), Kharegaon Naka, Kalwa' with the income tax authority, this Commission refers to decision dated 02- 09-2011 of the Hon'ble Supreme Court of India in Institute of Chartered Accountants of India v. Shaunak H. Satya and Ors. in Civil Appeal NO. 7571 of 2011, wherein, it has been held as under:-
"The use of the words "person" shows that the holder of the information in a fiduciary relationship need not only be a 'public authority' as the word 'person' is of much wider import than the word 'public authority'. Therefore the exemption under Section 8(1)(e) is available not only in regard to information that is held by a public authority (in this case the examining body) in a fiduciary capacity, but also to any information that is given or made available by a public authority to anyone else for being held in a fiduciary relationship. In other words, anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary relationship".
13. The appellant has contended that 'Lokmata Savitribai Phule Mahila Sahakari Bank (Patasanstha), Kharegaon Naka, Kalwa' is a 'society' which performs 'public activity' and therefore, the income tax returns and the enclosures thereof should be disclosed to him. In this context, this Commission refers to the judgment dated 11- 06-2015 rendered by the Hon'ble Bombay High Court in Writ Petition No. 8753 of 2013 titled as Shailesh Gandhi v. The Central Information Commission, wherein, it has been observed as follows:-
"16...The Petitioner possibly being aware of the said position has therefore sought to contend that filing of the Income Tax Returns is a public activity. I am afraid the said contention is thoroughly misconceived as filing of Income Tax Returns can be no stretch of imagination be said to be a public activity, but is an obligation which a citizen owes to the State viz. to pay his taxes and since the said information is held by the Income Tax Department in a fiduciary capacity, the same cannot be directed to be revealed unless the pre-requisites for the same are satisfied."
14. With regard to the 'public interest' in the matter of assessment proceedings of third party, this Commission refers to relevant extract of the decision dated 24- 11-2014 of the Hon'ble High Court of Delhi in Naresh Kumar Trehan v.
Page 8 of 10Rakesh Kumar Gupta in W.P.(C) 85/2010 & CM Nos.156/2010 & 5560/2011, wherein, it was observed as under: -
"25...The act of filing returns with the department cannot be construed as public activity. The expression "public activity"
would mean activities of a public nature and not necessarily act done in compliance of a statute. The expression "public activity"
would denote activity done for the public and/or in some manner available for participation by public or some section of public. There is no public activity involved in filing a return or an individual pursuing his assessment with the income tax authorities. In this view, the information relating to individual assessee could not be disclosed. Unless, the CIC held that the same was justified "in the larger public interest."
15. The appellant has not established any larger public interest in the matter and therefore, in light of the legal principles enunciated in the aforesaid case-laws, this Commission comes to the conclusion that the appellant is seeking exempted information which need not be disclosed. Hence, no further intervention of the Commission is required in the matter.
16. With the above observations, the appeal is disposed of.
17. Copy of the decision be provided free of cost to the parties.
Neeraj Kumar Gupta (नीरज कु मार गुप्ता) Information Commissioner (सूचना आयुक्त) दिनांक / Date 22-06-2020 Authenticated true copy (अनिप्रमानित सत्यानपत प्रनत) S. C. Sharma (एस. सी. शमाग), Dy. Registrar (उप-पंजीयक), (011-26105682) Page 9 of 10 Addresses of the parties:
1. The CPIO, O/o the Income Tax officer 3(5), Thane, ITO & CPIO, RTI Cell, Ashar I T Park, 6th Floor, B-Wing, Room No.- 5, Wagle Industrial Estate, District Thane (West), Maharashtra-400604.
2. Vaibhav Rajam, Page 10 of 10