Central Information Commission
S Radhakrishnan vs Chief Commissioner Of Income Tax (Cca) , ... on 27 June, 2019
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/CCITH/A/2018/109323-BJ
Mr. S. Radhakrishnan
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
ITO (Hqrs.), Office of the Pr. CIT - II
6th Floor, Signature Towers, Kondapur
Hyderabad - 500084
... ितवादीगण /Respondent
Date of Hearing : 25.06.2019
Date of Decision : 27.06.2019
Date of RTI application 30.10.2017
CPIO's response 30.11.2017
Date of the First Appeal 14.12.2017
First Appellate Authority's response 29.01.2018
Date of diarised receipt of Appeal by the Commission 09.02.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 27 points inter alia regarding whether the O/o the CIT-2 had received a letter dated 14.10.2015 from Mr. M. V. Joshi, partner at P. Murali and Co., Chartered Accountants; action taken on the purported letter, etc. The CPIO and ITO (Hq) o/o the Pr. CIT, II, Hyderabad, vide its letter dated 30.11.2017 denied disclosure of information u/s 8 (1) (e) and (j) of the RTI Act, 2005 on the ground that it pertained to a Third Party and no larger public interest warranting its disclosure was justified by the Appellant. A reference was also made to the decision of the Apex Court in the matter of Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 and the decision of the Commission in CIC/BS/A/2016/000800-BJ dated 10.04.2017. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 29.01.2018 while dismissing the Appeal stated that the information sought did not relate to any public activity and no public interest was demonstrated.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 4
Appellant: Mr. S. Radhakrishnan through VC;
Respondent: Mr. B. P. Rao, CPIO through VC;
The Appellant reiterated the contents of the RTI application and stated that the information sought was incorrectly denied to him on the ground of Third Party Information despite his submission before the FAA regarding his significant shareholding of 50% of paid up capital of the company "Pollution Controls Ltd", Hyderabad. In support of his contention, the Appellant referred to the order of the NCLT dated 26.10.2017 wherein it was affirmed that he had a 50% shareholding in the said Company. In its reply, the Respondent, re-iterated the CPIO/ FAAs reply and submitted that the information sought being related to a Third Party was exempted from disclosure u/s 8 (1) (e) and (j) of the RTI Act, 2005. On being queried regarding their comments on the Appellant's submission regarding 50 % stake in the company "Pollution Controls Ltd", Hyderabad, no satisfactory response was offered by the Respondent who stated that no larger public interest warranting disclosure of information was justified by the Appellant. It was noted that initially the Respondent sought protection being Third Party information but subsequently took the stand that the larger public interest did not warrant disclosure.
The Commission was in receipt of a written submission from the Appellant dated 25.06.2019 wherein it was inter alia stated that the NCLT vide order dated 26.10.2017 in CP No. 40/0211 (filed before the erstwhile Company law Board, Chennai Bench and subsequently transferred to NCLT after its constitution in 2016) had inter alia directed the 1st Respondent (the Company) and the 2nd Respondent therein (his elder brother) to maintain the shareholding pattern in the Company by the petitioners family and the Respondent family at 50:50. A copy of the order was provided to the CPIO- ITO-2. While reiterating his RTI application, CPIOs reply, First Appeal and the order of the FAA, it was stated that it was a fact on record that the balance sheet, profit and loss account, auditor's report dated 01.09.2011, the Tax Audit Report dated 15.09.2011 in 3CA and statement of particulars in 3CD for the AY 2011-12 (FY 2010-11) were certified and signed by Mr. M.V. Joshi, partner of M/s P. Murali and Co., Chartered Accountants as stated in the ITR-6 and that none of the statutory documents such as Directors Report, Balance Sheet and Profit and Loss Account, Annual Returns, Auditor's Report, Tax Audit report, ITR-6 filed with the IT Department were approved by any validly convened and conducted Board of Directors Meeting nor adopted in any validly convened and conducted AGMs for want of quorum of 5 Directors to be present for any Board Meetings as per Article 40 of the AoA of the Company for Board Meetings and five members to be present as quorum for any AGM/ EGM for a public limited company as per Companies Act, 2013. Thus, serious fraud was played on the Company and its stakeholders by the audit form in collusion with the so called Management and under these circumstances he had filed a Company Petition No. CP 225/241/HDB/ 2019 before NCLT, Hyderabad Bench in this regard seeking declaration of ITR-6, Balance Sheet, Auditors Report and Tax Audit report as non-est and void ab initio. The next hearing in the matter was scheduled on 05.07.2019. Hence, the information and documents available with the public authority was important to prove the facts to meet the ends of justice. Thus, it was prayed to allow his Appeal and direct the concerned information to furnish the required information/ documents.
The Commission observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005 Page 2 of 4 While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
Moreover, as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection.
Furthermore, with regard to providing a clear and cogent response to the Appellant, the Commission referred to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."
A reference can also be made to the decision of the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under: "9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only.
Page 3 of 4DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Chief Commissioner of Income Tax, Hyderabad, to depute an officer of an appropriate seniority to re-examine the RTI application and provide a clear, cogent and precise response to the Appellant in accordance with the provisions of the RTI Act, 2005 within a period of 15 days from the date of receipt of this order.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
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: 27.06.2019
Copy to:
1. Mr. Atul Pranay, Chief Commissioner of Income Tax, IT Towers, Masab Tank, Hyderabad- 500004 Page 4 of 4