Central Information Commission
Manoj Kumar Singh vs Chief Commissioner Of Income Tax (Cca), ... on 15 May, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CCITD/A/2022/158058
Manoj Kumar Singh ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
O/o ACIT, Central Circle 29,
Delhi. RTI Cell. Room No. 318,
Income Tax Building. ARA
Centre, Jhandewalan Extn,
New Delhi 110055. .... ितवादीगण /Respondent
Date of Hearing : 18/04/2023
Date of Decision : 08/05/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 11/07/2022
CPIO replied on : 15/07/2022
First appeal filed on : 10/08/2022
First Appellate Authority's order : 12/09/2022
2nd Appeal/Complaint dated : 13/12/2022
Information sought:
The Appellant filed an RTI application dated 11.07.2022 seeking the following information:1
"Subject Matter: In the Assessment Orders issued in the case of Applicant (PAN: AAXPS2824H) for Assessment Year 2011-12 to 2020-21 by DCIT, Central Circle-29 in search and seizure proceedings under Section 153A of the Income Tax Act ('Act), the reference to the requisition proceedings under Section 132A of the Act, of Mr. Devesh Singh conducted on 17.10.2019 by Investigation Officer, Income Tax Department, Aayakar Bhawan, HSIIDC Building, Udyog Vihar Phase V, Gurugram, Haryana, has been referred and also the data found in such requisition proceedings have been relied upon in the case of the Applicant.
1. Request to provide the outcome, Order(s), direction(s) passed in Section 132A of the Income Tax Act, 1961 proceedings in the case of Mr. Devesh Singh which has been relied upon in the case of Applicant.
2. Request to provide the statement(s) recorded, documents (including those recovered from the electronic devices, Forensic image Form 658/Hash Value COC form, etc) as taken into account (impounded during the said Section 132A proceedings of Mr. Devesh Singh and relied upon in the case of the Applicant."
The CPIO furnished a reply to the appellant on 15.07.2022 stating as under :-
"As per the provisions of section 8 of the RTI Act, 2005, the information cannot be disclosed to the applicant, as the applicant, ln his application had nowhere submitted as to how the larger public interest warrants the disclosure of such information. Moreover, the information as sought for ls confidential and highly sensitive pertaining to third party i.e. sh. Devesh Singh, which will not be provided to the applicant.
The information sought for had already been provided to the assesses during the process of post-search investigation on 28/12/2020 by the o/o DDIT (lNV.) (HQ.), Chandigarh and again by the office of the undersigned during the course of search assessment proceedings on 11/02/2022, 12/02/2022 and 14/02/2022."
Being dissatisfied, the appellant filed a First Appeal dated 10.08.2022 stating as under:
"...It is to be noted that the Applicant has been assessed basis the requisition proceedings under Section l32A of the lncome Tax Act, 1961 of Mr. Devesh Singh for Assessment Years 2011-12 to 2020-21 and in the Show Cause 2 Notice issued for the Assessment Year 2021-22 which is currently been assessed by Ld. DCIT, Central Circle-29. The Ld, DCIT has placed reliance on the information/documents received from the said Section 132A requisition proceedings as referred to in the said assessment order(s) as well as in the said show cause notice. It is incorrect on the part of the Ld. DCIT passing the order u/s 7 of the RTI Act, that 'the information cannot be disclosed to the applicant, as the applicant, in his application had nowhere submitted as to how the larger public interest warrants the disclosure of such information. Moreover, the it as sought for is confidential and highly sensitive pertaining to third party i.e., Devesh Singh, which will not be provided to the applicant.'
(iii) It is humbly submitted that Ld. JCIT had failed to appreciate that any information which is used in the case of the Applicant, the Applicant can request for such information and in such case the Applicant is not required to submit as to how the larger public interest warrants the disclosure of such information and/or such information cannot be provided as its a confidential and sensitive information. Such requirements while seeking information under RTI are unknown to law.
(iv) The Applicant is also aggrieved from the response given in Para 3.2 of the Order u/s 7 of the RTI Act, 2005 passed by the Ld JCIT wherein the Ld. JCIT had mentioned that "the information sought for had already been provided to the assessee during the process of post-search investigation on 28.12.2020 by the 0/o DDIT (Inv.) (HQ), Chandigarh and again by the office of the undersigned during the course ofsearch assessment proceedings on 11.02.2022, 12.02.2022 and 14.02.2022. ". The Appellant Authority may respectfully appreciate that in Para 3.1 the Ld JCIT itself have referred that the information sought cannot be disclosed to the applicant for reasons mentioned in the said para including that it's a third party confidential and highly sensitive information and in Para 3.2 the Ld JCIT is answering the information sought has already been provided. Such contradictory and mutually destructive plea are required to be set aside and the information as sought by the Applicant may kindly be provided.
(v) That it is submitted that the Applicant's AR was provided with the unsigned and uncertified information in a pen drive (unverified) on 28.12.2020 pertaining to the Applicant as alleged to be found from the premises of the Applicant. The Applicant has separately filed the grievance for such incomplete information with Investigation wing. Be that as may be, it is to be noted that no information as requested in RTI dated 11.07.2022 i.e. "the statement(s) recorded, 3 documents (including those recovered from the electronic devices, Forensic Image, Form 65B/Hash Value, COC form, etc) as taken into account/impounded during the said Section 132A proceedings of Mr. Devesh Singh" was provided to the Applicant during the said post search proceedings. The Appellant Authority can verify this fact from the note sheet dated 28.12.2020. The copy of the order as provided to the Applicant during assessment proceeding is annexed and marked as Annexure-A
(vi) That it is further humbly submitted that during the course of search assessment proceedings on 11.02.2022, 12.02.2022 and 14.02.2022 i.e. during the Mazharnama proceedings, certain incomplete information was provided w.r.t premises of the Applicant and no information as requested in RTI dated 11.07.2022 i.e. "the statement(s) recorded, documents (including those recovered from the electronic devices, Forensic Image, Form 65B/Hash Value, COC form, etc) as taken into account/impounded during the said Section 132A proceedings of Mr. Devesh Singh" was provided to the Applicant. The Appellant Authority can verify this fact from the Mazaharnama proceedings and order sheets recorded by Ld JCIT during the said proceedings."
FAA's order dated 12.09.2022 held as under:
"For point No. 1 Please refer to my letter dated 17.08.2022 where Assessing Officer was found to be right while rejecting your application because the information was related to third party where no larger public interest is involved. Further, In the light of the view of judgment of Hon'ble jurisdictional High Court in the case of (Dr RS Gupta vs GNCTD) held that "in absence of any larger public interest, disclosure of personal information is exempted under the Right to Information (RTI) Act, as the same would cause unwarranted invasion of privacy under Section 8(1)(j) of the Act". In your submission dated 26.08.2022, the explanation of larger public interest is misplaced by you. Even on seeing the tax payer's charter (manual procedure), it has no where mention that the outcome of any assessment proceeding related to third party may be shared. Therefore, the outcome of assessment order of Shri. Devesh Singh (alias Sunny) cannot be shared with you as per Section 8(1)0) RTI Act, 2005 as it has no larger public interest and is highly confidential in nature.
4. In regard to your second request, it has been observed that the additions in your case have been relied upon the data which were not only found from Shri. Devesh Singh during search dated 14.10.2020 but also on other documents which 4 were seized from your residential and office premise. It is the fact that the similar nature of data were also found from your residential and office premise which have been already provided along with hash value and 65B certificate. On perusal of assessment order, it is found that the additions have been relied upon the following data not only restricted to 132A proceedings in Devesh Singh-
1. Pen drive found and seized from possession of Sh. Chander Prakash, employee of M/s Singh and Associates, at the office of M/s Singh and Associates at E-337, east of Kailash, New Delhi on 14.10.2020.
2. Server disk forensically imaged and seized from the office of M/s Singh and Associates at E-337, east of Kailash, New Delhi on 14.10.2020, Annexure A-11.
3. Dairies Impounded from Office of M/s Singh and Associates from E-337 East of Kailash, New Delhi.
3. The Mahzarnama proceedings were made on 11.02.2022, 12.02.2022 and 14.02.2022 the following seized data had already been provided along with hash value, form 65B as detailed below:-
The data seized from Shri. Devesh Singh during 132A proceedings dated 18.10.2019 was also found and seized during search and seizure proceedings dated 14.10.2020 on the premises of Shri. Manoj Kumar Singh which has already been provided to you as tabulated above. As the similar nature of data found and seized during search dated 14.10.2020 therefore the reliance was made on this data. The data seized from Sh. Devesh Singh during 132A proceedings was not complete hence, it has been used for only reference purpose during questionnaire 5 issued u/s 142(1) of Income Tax Act. Even the similar data was found and seized from the pen-drive of one of your employee Sh. Chander Prakash which was provided to you during Mahzarnama proceedings dated 12.02.2022. Therefore, all the materials on the basis of which the additions have been made in your case have already been provided to you. Hence, your request made through point no. 2 in your application is not sustainable and hence is being rejected."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal stating as under:
"e. That Appellant/Applicant is further aggrieved from the order under Section 19(1) of the RTI Act, dated 12.09.2022 of First Appellate Authority i.e. Ld. JCIT, Central Circle-29, Central Range-8, Delhi due to following reasons:
i. The Appellant/Applicant on not receiving any satisfactory response to the RTI Application filed by him to Ld. CPIO, had filed the Appeal before Ld. First Appellate Authority i.e., Ld. JCIT, Central Circle-29, Central Range-8, Delhi on 10.08.2022. The copy of the said First appeal dated 10.08.2022 of First Appeal and Order dated 12.09.2022 is enclosed and marked as Annexure- V and Annexure- VI respectively.
ii. That in the said Order dated 12.09.2022 of First Appellate Authority, has reiterated the same observations as given by Ld. DCIT (CPIO) and that the Ld. First Appellate Authority has also not appreciated that what the Applicant/Appellant has sought is different from the one which has been relied upon by IA. DCIT (CPIO) and IA. JCIT (First Appellate Authority) as provided to the Appellant/Applicant allegedly by the Investigation Wing (who has conducted search) and/or provided during the Mazaharnama Proceedings dated 11.02.2022, 12.02.2022 and 14.02.2022.
iii. That the First Appellate Authority have during the pendency of appeal have sought clarification from the Appellate/Applicant vide letter dated 17.08.2022.
iv. That the Appellate/Applicant has submitted the details response to the letter dated 17.08.2022 wherein the Appellate/Applicant has clarified and again submitted that the information sought by the Appellant/Applicant in his RTI Application is not an issue which need to be examined on the point of "public interest", "third party information "and/or "confidential nature" as the 6 information sought has been relied upon in the Assessment proceedings of the Appellant/Applicant.
v. Furthermore, the information (even though incomplete, unauthenticated) provided to the Appellant/Applicant is different from the information sought by the Appellant/Applicant.
vi. That the First Appellate Authority failed to take note of the clarification and reasons for seeking the information as submitted by the Appellant. That the First Appellate Authority though have confirmed that the reliance was placed on the data/information seized from Shri Devesh Singh during Section 132A proceedings however still failed to provide the same to the Appellant on frivolous grounds."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Vijay Kumar Singh through intra-video conference. Respondent: Not present.
The Rep. of the Appellant was heard at length extrapolating on the grounds of First and Second Appeal as detailed above and the underlining argument for seeking relief in the matter was that since the requisition proceedings under Section 132A of the Act of Mr. Devesh Singh was relied upon in the assessment proceedings conducted against the Appellant, the information sought for cannot be denied as being related to a third party.
Decision:
The Commission based on a close scrutiny of the facts on record observes that admittedly, the Appellant is simply asking for the information related to a third party's assessment proceedings and disclosure of the same is squarely exempt under Section 8(1)(j) of the RTI Act as being the personal information of the averred third party. For the sake of clarity, Section 8(1)(j) of the RTI Act provides as under:
"(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public 7 Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:.."
In this regard, the attention of the Appellant is further drawn towards a judgment of the Hon'ble Supreme Court in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794. The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..." Emphasis Supplied Further, on the aspect of larger public interest, the Commission places reliance on a catena of judgments of the superior Courts on the import of "public interest" as under:
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi & Anr. [CIVIL APPEAL NO.9052 OF 2012] observed as under:8
"23. The expression 'public interest' has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act.
The expression 'public interest' must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression 'public interest', like 'public purpose', is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs. [State of Bihar v. Kameshwar Singh (AIR 1952 SC 252)]. It also means the general welfare of the public that warrants recommendation and protection; something in which the public as a whole has a stake [Black's Law Dictionary (Eighth Edition)]. Emphasis Supplied "24. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision. Certain matters, particularly in relation to appointment, are required to be dealt with great confidentiality."
".... Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India." Emphasis Supplied Similarly, in another judgment of the Hon'ble Supreme Court in the matter of S. P. Gupta v President of India, [AIR 1982 SC 149], with reference to 'public interest' it has been maintained that:
"Redressing public injury, enforcing public duty, protecting social, collective, 'diffused' rights and interests vindicate public interest... [in the enforcement of which] the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected." Emphasis Supplied 9 And, in the matter of State of Gujarat vs. Mirzapur Moti Kureshi Kasab Jamat & others [Appeal (Civil) 4937-4940 of 1998], the Hon'ble Supreme Court has held that:
"the interest of general public (public interest) is of a wide importance covering public order, public health, public security, morals, economic welfare of the community, and the objects mentioned in Part IV of the Constitution [i.e. Directive Principles of State Policy]". Emphasis Supplied Since there is no material on record to ascribe larger public interest in the disclosure of the information related to the averred third party in any of the above referred contexts, the denial of the information by the CPIO is appropriate.
Moreover, the FAA has issued a detailed order explaining to the Appellant the context of mentioning the references of the third party's requisition proceedings in the assessment proceedings of the Appellant, although considering or questioning the merits of the same is not within the scope of adjudication of the Commission under the RTI Act.
Nonetheless, since the CPIO remained absent during the hearing proceedings to present their case and has not even placed on record any written submissions, considering the insistence of the Rep. of the Appellant during the hearing that the information desired in the RTI Application was used in the assessment proceedings against the Appellant, the CPIO is directed to revisit the matter to ascertain if any information as sought for in the instant RTI Application figures in the relevant Appellant's assessment proceeding records. A revised reply to this effect shall be accordingly provided to the Appellant, incorporating such information, if available, free of cost, within 15 days from the date of receipt of this order under due intimation to the Commission.
Further, the CPIO is directed to send a proper written explanation for disregarding the Commission's notice of hearing by not appearing before the bench. The said written explanation of the CPIO shall be sent to the Commission within 7 days of the receipt of this order.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) 10 Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 11