Central Information Commission
Pawan Kumar Sharma vs Chief Commissioner Of Income Tax (Cca), ... on 31 August, 2018
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/CCACH/A/2017/138794-BJ
Mr. Pawan Kumar Sharma,
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO & Dy. Commissioner of IT
Income Tax Department
Corporate Range-2, V.P. Rathinasamy Nadar, Road,
Madurai-625002
... ितवादीगण /Respondent
Date of Hearing : 30.08.2018
Date of Decision : 31.08.2018
Date of RTI application 11.05.2015
CPIO's response Not on Record
Date of the First Appeal 21.03.2017
First Appellate Authority's response 26.04.2017
Date of diarised receipt of Appeal by the Commission 07.06.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 06 points regarding the certified copies of Income Tax returns of Mr. Anup Sharma for the AY 2006-07 to 2008-09, details of Income Tax deducted from the salaries of the employee by M/s Paramount Airways, Guindy, Chennai for the abovementioned AYs and other issues related thereto.
Dissatisfied due to non receipt of any response from the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 26.04.2017 which referring to the judgment of the Hon'ble Supreme Court in the case of Girish Ramachandra Deshpande vs CIC and the decisions of the Commission in the case of K.K. Mahajan vs. Cantonment Executives Office in Appeal No. CIC/AT/A/2016/00014 and in the case of Sheetal S Chavan vs. Income Tax Department, Mumbai, denied disclosure of information u/s 8(1) (j) of the RTI Act, 2005.Page 1 of 6
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Pawan Kumar Sharma through VC;
Respondent: Ms. Mallarkodi R., ACIT through VC;
The Appellant reiterated the contents of his RTI application and stated that the information sought was in public interest and should have been provided to him. Attention of the Commission was drawn to the decision in File No. CIC/BS/A/2015/001685/12043 dated 09.01.2017, wherein the CPIO had advised the concerned AO to provide information in accordance with the provisions of the RTI Act, 2005. Responding further, the Respondent explained that the FAA vide its decision dated 12.04.2017 followed by decision dated 26.04.2017 had examined the matter afresh and denied information under Section 8(1)(j) of the RTI Act, 2005. In support of its decision, it relied upon the judgment of Hon'ble Supreme Court in the case of Girish Ramachandra Deshpande vs CIC and decision of CIC in the Case of Sheetal S Chavan vs. Income Tax Department, Mumbai claiming denial of information due to lack of any public interest in the queries raised by the Appellant. On being queried by the Commission, if the Appellant had filed any Tax Evasion Petition (TEP), he replied in the negative. On perusal of the records available on file it was noted that the subject matter was subjudice before the High Court and that the Appellant was well-versed with the facts of the case. The Appellant was also privy to proceedings held before the concerned Dy. Commissioner of Income Tax. He was also offered an opportunity for hearing before the FAA but he could not attend the same.
The Commission referred to the definition of information u/s Section 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 Page 2 of 6 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 referred to the judgment of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
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 satisfied that the larger public interest justifies the disclosure of such information."
In this context, the decision of the Commission in Milap Choraria v. CBDT CIC/AT/A/2008/000628 dated 15.06.2009 can be cited wherein it had been held as under:
Page 3 of 6"15. From the above discussion, it would appear that the Income Tax Returns have been rightly held to be 'personal information' exempted from disclosure under clause (j) of section 8(1) of RTI Act by the CPIO and the Appellate Authority; and the appellant herein has not been able to establish that a larger public interest would be served by disclosure of this information."
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 had observed as under:
"25. Indisputably, Section 8(1)(j) of the Act would be applicable to the information pertaining to Dr Naresh Trehan (petitioner in W.P.(C) 88/2010) and the information contained in the income tax returns would be personal information under Section 8(1)(j) of the Act. However, the CIC directed disclosure of information of Dr Trehan also by concluding that income tax returns and information provided for assessment was in relation to a "public activity." In my view, this is wholly erroneous and unmerited. 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"
The Hon'ble High Court of Bombay in the decision of Shailesh Gandhi v. CIC and Ors WP 8753 of 2013 dated 06.05.2015 had held as under
"16......the said contention is thoroughly misconceived as filing of Income Tax Returns can by 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 prerequisites for the same are satisfied.
23...........Since the right to privacy has been recognised as a fundamental right to which a citizen is entitled to, therefore unless the conditions mentioned in Section 8 (1) (j) is satisfied, the information cannot be provided."
Furthermore, the Hon'ble High Court of Gujarat in the matter of Vinubhai Haribhai Patel (Malavia) v. Assistant Commissioner of Income Tax, Special Civil Application No. 7187 of 2014 dated 16.07.2015 had held as under:
5. Now, turning to the facts of the present case, it is evident that the kind and nature of the information demanded by the petitioner clearly falls within the expression "personal information". The personal character of the information demanded in the nature of Page 4 of 6 Income-tax Returns of the private parties to get disclosure about the payment of tax by them which was again in order to know about their status as agriculturists declared to be so by the authorities in the legal proceedings, could be indeed said to be personal. It was in the background of litigation between the petitioner and the said private persons relating to their property rights wherein the Will in favour of private parties was disputed and the disputes of civil nature were being agitated before the forum concerned and the court. This information being personal in nature, could not be claimed as a matter of right by the petitioner, rather they were clearly exempted information under Section 8(1)(j). The contention of larger public interest justifying the disclosure does not exist. In disclosing the said information asked for by the petitioner relating to the private parties, there was no element of public interest to be sub-served. The information was personal information relating to third parties. The attendant facts and circumstances and the litigation between the petitioner and those parties, instead indicated that the information was personal information which was asked for by the petitioner for his own personal interest and private purpose. Respondent No. 3-Central Information Commissioner was eminently justified in taking a view that there was no public interest present in the information claimed to be supplied, rightly denying the same by dismissing the appeal. The Hon'ble Supreme Court in R.K. Jain vs. Union of India, SLP(C) No. 22609 of 2012 dated 16.04.2013 had held as under:
"17. In view of the discussion made above and the decision in this Court in Girish Ramchandra Deshpande(supra), as the appellant sought for inspection of documents relating to the ACR of the Member, CESTAT, inter alia, relating to adverse entries in the ACR and the 'follow up action' taken therein on the question of integrity, we find no reason to interfere with the impugned judgment passed by the Division Bench whereby the order passed by the learned Single Judge was affirmed."
The Hon'ble High Court of Sikkim in the matter of Sancha Bahadur Subba vs. State of Sikkim W.P. (C) 31/2017 dated 30.04.2018 had held as under:
"30. What concludes therefore from the gamut of discussions herein above is that in a given case information pertaining to assets and liabilities can be disclosed with the rider that there must be larger public interest involved justifying such disclosure. As can be culled out from the averments and submissions, the Petitioner herein suspects that the Respondent No. 5 is in possession of assets disproportionate to his known sources of income, however mere suspicion without any prima facie material to substantiate it does not justify the disclosure of such information of the Respondent No. 5 as rests with the concerned government authority. This situation indeed appears to be a fishing expedition embarked upon by the Petitioner without any bona fide public interest. In these circumstances, it obtains that disclosure of such information would cause unwarranted invasion of the privacy of the individual and falls under the ambit of Section 8(1)(j) of the RTI Act."Page 5 of 6
The High Court of Delhi in the matter of Municipal Corporation Delhi vs. Rajbir W.P.(C) 13219/2009 and CM 14393/2009, decided on 24.08.2017 had held as under:
"9..................Respondent has not provided any credible justification for seeking information regarding the personal assets of the MCD employee in question.
10. There can be no doubt that the information sought by respondent is personal information concerning an employee of MCD. Such information could be disclosed only if respondent could establish that disclosure of such information was justified by larger public interest. Even if the PIO was satisfied that disclosure of such information was justified, the PIO was required to follow the procedure given under Section 11 of the Act; that is, the PIO was required to give a notice to the concerned employee stating that he intends to disclose the information and invite the employee to make submissions on the question whether such information ought to be disclosed."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of aforesaid judgments, no further intervention of the Commission is required in the matter.
The Appeal stands 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: 31.08.2018
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