Central Information Commission
Shri S.P. Goyal vs Commissioner Of Income Tax, Mumbai on 31 March, 2009
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
1. File No. CIC/S/A/2009/000033
2. File No. CIC/S/A/2009/000036
3. File No. CIC/S/A/2009/000037
4. File No. CIC/S/A/2009/000046
5. File No. CIC/S/A/2009/000047
6. File No. CIC/S/A/2009/000049
7. File No. CIC/S/A/2009/000054
8. File No. CIC/S/A/2009/000055
9. File No. CIC/S/A/2009/000056
10. File No. CIC/S/A/2009/000088
11. File No. CIC/S/A/2009/000090
12. File No. CIC/S/A/2009/000093
13. File No. CIC/S/A/2009/000094
14. File No. CIC/S/A/2009/000098
15. File No. CIC/S/A/2009/000111
16. File No. CIC/S/A/2009/000113
17. File No. CIC/S/A/2009/000126
18. File No. CIC/S/A/2009/000129
19. File No. CIC/S/A/2009/000130
20. File No. CIC/AT/A/2008/01102/LS
21. File No. CIC/AT/A/2008/01103/LS
Appellant : Shri S.P. Goyal
Public Authority : Commissioner of Income Tax, Mumbai
(through Shri L.C. Joshi, CIT (Appeals) XII,
Mumbai)
Date of Hearing : 23.3.2009/27.3.2009
Date of Decision : 31.3.2009
Facts
The background of the matter is that Shri Anand Nagrale, ITO, 12 (2) (1), Mumbai, had passed an assessment order dated 10.2.2006 in respect of Shri S.P. Goyal (appellant herein) for assessment year 1999-2000. Aggrieved with the assessment order, the appellant had filed an appeal dated 2.3.2006 before the Commissioner of Income Tax (Appeals) XII, Mumbai. Shri Pargati Kumar, the then CIT (Appeals) XII, Mumbai, had passed an order dated 25.6.2007 in Appeal No. CIT(A)-XII/12 (2)(1)/IT-396/05-06. The concluding para of the order is reproduced below :-
"116. Therefore, on all the accounts and all the contentions, the ground of appeal is dismissed subject to the relief of Rs. 11,96,000/- only and, therefore, the addition of Rs. 2,45,42,112/- under section 2 (22) (e) is confirmed."
2. Aggrieved with this order, the appellant has filed a statutory appeal before ITAT, Mumbai. Side by side, he also filed a number of RTI applications and first appeals against the decisions of CPIOs. Dissatisfied with the decisions of the CPIOs & Appellate Authorities, he has filed the above cited second appeals before this Commission. On careful perusal of these appeals, it is noticed that the appellant has quoted certain paras from the Appellate order in each RTI application and sought information in regard to the observations/comments/findings of the CIT (Appeals) as contained in the extracted paras. As all the above cited appeals have arisen out of the order passed by Shri Pargati Kumar, the then CIT (Appeals) XII, Mumbai, it has been decided to dispose them of by a common order.
3. These appeals were heard on 23.3.2009 & 27.3.2009. The appellant appeared before the Commission on these dates. Shri Joshi, however, could not appear on 23.3.2009 due to personal problems, but he did appear on 27.3.2009. The parties were heard. The appellant would make the following submissions :-
(i). that Shri Pargati Kumar, the then CIT (Appeals) XII, Mumbai, has passed certain observations/comments in his order under reference which are contrary to facts;
(ii). that before passing the impugned order, Shri Pargati Kumar was required to verify all the transactions - whether advances or loans or other business transactions - from the books of accounts before arriving at any conclusions /findings which he did not do;
(iii). that under section 4 (1) (d) every public authority is mandated to provide reasons for its administrative or quasi-judicial decisions to the affected persons. Hence, he is entitled to seek replies to his queries on the extracted paras in his RTI applications under this provision of law;
(iv). that the impugned order lacks bonafides and is nothing but misuse of authority;
(v). that he is entitled to seek information not only u/s 4 (1) (d) but also under section 2 (f) of the RTI Act;
(vi). that denial of information under section 4 (1) (d) by CPIOs and the Appellate Authorities is due to their mis-appreciation of the provisions of law; and
(vii). that information sought by him cannot be denied on the ground that the order dated 25.6.2007 passed by Shri Pragati Kumar is a quasi-judicial order which is appealable before ITAT/High Court etc. If it were so, the Parliament would not have incorporated section 4 (1) (d) in the RTI Act.
4. The overall submission of the appellant is that he is legally entitled to seek information on the paras extracted from Shri Pragati Kumar's order dated 25.6.2007 in his various RTI applications under section 4 (1) (d) & 2 (f) of the RTI Act.
5. On the other hand, Shri L.C. Joshi, CIT (Appeals) XII, Mumbai, would make the following submissions :-
(i). that the order deated 25.6.2007 was passed by Shri Pargati Kumar as an Appellate Authority under the Income Tax Act and the appellant is at liberty to file appeals before the judicial hierarchy viz. ITAT, High Court/Supreme Court etc. against his order;
(ii). that the reasoning behind the paragraphs selectively quoted by the appellant in the aforesaid matters is contained in the detailed order itself which runs into 66 pages;
(iii). that the appellant has already filed an appeal before the ITAT, Mumbai, and the matter is subjudice. Hence, no further information is disclosable to him.
(iv). that in certain queries, the appellant has sought reasons as to how and why the impugned order happened to be passed. Under the RTI Act, the CPIO can not sit over judgement on the order passed by the CIT (Appeals) as an Appellate Authority under the Income Tax Act.
Besides, CPIO is not required to give his opinion on any part of the order passed by the CIT (Appeals);
(v). that no information is due to the appellant under section 2 (f) of the RTI Act in as much as the CPIO is not in a position to give any additional information in regard to the appellate order other than that which is contained in the order itself;
(vi). that the decisions of CPIOs & AAs in the matters in hand are in conformity with the decisions of this Commission viz. Appeal No. CIC/AT/A/2007/00333 decided on 17.8.2007 (P.K. Shah Vs Mahanadi Coal Fields Limited) and Appeal No. CIC/AT/A/2006/00045 decided on 21.4.2006 (Dr. D.V. RAo Vs Departmetn of Legal Affairs);
(vii). that this Commission has also held in its various decision that the RTI Act cannot be used as a substitute for a appeal to be filed before the Tribunal or High Court/Supreme Court;
(viii). that the cumulative impact of the petitions/appeals filed by the appellant imposes a heavy cost on the public authority in terms of drain of its physical and financial resources.
6. Overall, it is the submission of Shri Joshi that the above cited appeals filed before this Commission are frivolous and malicious and deserve to be dismissed out of hand.
7. To this, the appellant would respond that the impugned order passed by Shri Pargati Kumar is a malafide exercise of authority in connivance with certain junior officials of the IT Department from whom he obtained false remand report and the officer from whom remand report was received has a tainted record. It is also his submission that malafides is writ large on the view taken by officials of the Income Tax Department in as much as they went out of their way to impose fee @Rs. 50/- per page as against the fee of Rs. 2/- per page prescribed by the Central Government. It is his forceful submission that he is seeking information in exercise of his right under section 4 (1) (d) and 2 (f) of the RTI Act and the information sought should be provided to him without any further delay. It is also his submission that the alternative remedy available to him by way of filing appeal before ITAT or High Court/Supreme Court etc does not deprive him of his rights under the RTI Act.
8. As mentioned above, Shri Pragati Kumar, the then CIT (Appeals)XII, Mumbai, had passed a detailed order dated 25.6.2007 running into 66 pages as Appellate Authority under the Income Tax Act and had arrived at conclusion to the detriment of the appellant. The question for consideration before this Commission is whether the appellant is legally entitled to seek information in regard to the above mentioned order by way of a raising queries and asking questions relating to selectively extracted paras from the aforesaid order in his RTI applications.
9. Clause (f) of section 2 of RTI Act is extracted below :-
"(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;"
A bare reading of the above clause would indicate that this clause endeavours to define the type of information that can be sought by a citizen under the RTI Act. This information is to be provided by the public authority which is the repository of information. In my view this clause does not contemplate any information to be provided by the CPIO in connection with an appellate order passed by a statutory authority under the provisions of a specific statute, i.e. Income Tax Act in the matter in hand. Therefore, the plea of the appellant does not appear to have force.
10. Clause (d) of sub-section (1) of section 4 is extracted below :-
"Every Public Authority shall -
(a) .............................
(b) .............................
(c) .............................
(d) provide reasons for its administrative or quasi-judicial decisions to
affected persons."
It is the submission of the appellant that Shri Pragati Kumar, the then CIT (Appeals) XII, Mumbai, had passed a quasi-judicial order referred to above in his capacity as a Appellate Authority under the Income Tax Act and, therefore, under clause (d) quoted hereinabove, he is entitled to seek information on the observations/comments/remarks made by him in various paragraphs of his order and the conclusion arrived at by him. The plea of the appellant appears to be far fetched in as much as if the appellant were to be allowed to seek information in regard to the order passed by Court or Tribunal and to ask questions as to its factual accuracy or legal validity under the RTI Act, not only the independence of such Court or Tribunal is likely to be compromised, which is a pre-requisite for its efficient and objective functioning, but also the very purpose of creating a hierarchy of courts and Tribunals, where these issues can be agitated by the interested parties, would be defeated. It is to be noted that in the matter in hand, CIT (Appeals)XII, Mumbai (Shri Pragati Kumar) has passed a detailed order running into 66 pages. It is also an admitted fact that aggrieved with this order, the appellant has filed an appeal before ITAT, Mumbai and the matter is sub-judice. The Appellant is, thus, availing of a legal remedy available to him under the law.
11. It may be added that this issue came up before this Commission in Shri Rakesh Kumar Gupta Vs ITAT, New Delhi and a Full Bench of this Commission decided this matter vide this decision dated 18.9.2007. It would be apt to extract para 49 of the said decision :-
"It is our conclusion, therefore, that given that a judicial authority must function with total independence and freedom, should it be found that an action initiated under the RTI Act impinges upon the authority of that judicial body, the Commission will not authorize the use of the RTI Act for any such disclosure requirement. Section 8 (1) (b) of the RTI Act is quite clear, which gives a total direction to the court or the tribunal to decide as to what should be published. An information seeker should, therefore, approach the concerned court or the tribunal if he intends to have some information concerning a judicial proceeding and it if for the concerned court or the tribunal to take a decision in the matter as to whether the information requested is concerning judicial proceedings either pending before it or decided by it can be given or not."
The Full Bench of this Commission has categorically laid down that if any action initiated under the RTI Act impinges on the authority of judicial body, the Commission will not authorize the use of RTI Act for such purposes. It, thus, appears that RTI Act is not the proper instrumentality and this Commission not the proper forum for soliciting information in regard to the Appellate order passed under the provisions of Income Tax Act, and the grievances, if any, of the appellant can be redressed by the higher judicial authority i.e. ITAT/High Court/Supreme Court. As mentioned above, the appellant has already availed the opportunity of agitating this matter in the ITAT, Mumbai.
DECISION
12. In view of the above discussion, it is held that seeking information in regard to various paras of the order dated 25.6.2007 passed by Shri Pragati Kumar, the then CIT (Appeals)XII, Mumbai, either u/s 2 (f) or section 4 (1)
(d) is misconceived and not sustainable in law. The remedy lies elsewhere and the appellant has already availed of this remedy. The appeals cited above have no merit and are dismissed.
Sd/-
(M.L. Sharma) Central Information Commissioner 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 (K.L. Das) Assistant Registrar