Central Information Commission
Dushyant Singh Tanwar vs Director General Of Income Tax (Inv.) ... on 10 April, 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/DGITJ/A/2017/608047-BJ
Mr. Dushyant Singh Tanwar
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Chief Commissioner of Income Tax (Inv.)
Office of the Director General of Income Tax (Inv.)
N C R Building, Statue Circle, Jaipur - 302005
... ितवादीगण /Respondent
Date of Hearing : 09.04.2019
Date of Decision : 10.04.2019
Date of RTI application 17.08.2017
CPIO's response 29.08.2017
Date of the First Appeal 28.09.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding the outcome/ status/ progress of Tax Evasion Petition dated 05.01.2017 (complete RTI application not on record, content taken from the written submission of the Appellant.) The CPIO, vide its reply dated 29.08.2017 denied disclosure of information u/s 24 of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Dushyant Singh Tanwar through VC;
Respondent: Mr. Sanjay Chhabra, ITO (Inv.) (HQ) and Mr. Naresh Sharma, ITO/ CPIO through VC;Page 1 of 5
The Appellant reiterated the contents of the RTI application and stated that the information sought was incorrectly denied by claiming exemption u/s 24 of the RTI Act, 2005. He referred to his written submission dated 31.03.2019 and submitted that being the Complainant himself he was entitled to know about the broad outcome of the investigation of the TEP which was required to be completed in a time bound manner. He also submitted that the First Appeal filed by him was not decided after granting an opportunity of fair hearing and that his written submissions were also not taken into consideration before passing the order. In its reply, the Respondent submitted that the Appellant had filed several RTI applications on similar subject matter and that in March, 2017 they had transferred the application to the Pr. CIT, Alwar after its categorization being the appropriate jurisdictional authority in the matter. The Appellant contested the aforementioned submission and argued that his TEP pertained only to Jaipur and that the same was incorrectly forwarded to Alwar since the PAN based jurisdiction of the concerned Assessee against whom he had filed the Complaint pertained to Jaipur. However, the Respondent maintained that within the Public Authority the jurisdiction of the Ward Nos. mentioned by the Appellant were being dealt with by Pr. CIT, Alwar. In support of his contention, the Appellant also referred to the decision of the Commission in CIC/SB/C/2016/900232-BJ (Mr. Sushanta Malkandy vs. CPIO, O/o Dy. Director of Income Tax (Inv.) Admn.) dated 14.02.2017 and the judgement of the Hon'ble Delhi High Court in Bhagat Singh vs. Chief Information Commissioner and Ors. WP (C) No. 3114/2007 dated 03.12.2007 where in para 13, the Court had observed that Section 8 (1) (h) and other such provisions would become the haven for dodging demands for information. The Respondent distinguished the observations made by the Hon'ble Delhi High Court in the matter of Bhagat Singh on the ground that in the present instance they had claimed exemption u/s 24 of the RTI Act, 2005 whereas in the said decision, the Court had given its observation specifically with regard to Section 8 only.
The Commission was in receipt of a written submission from the Appellant dated 31.03.2019 wherein it was stated that the RTI application was filed to know the outcome/ status/ progress of the TEP dated 05.01.2017. While re-iterating the CPIOs response, he stated that the FAA had passed an order on 04.05.2018 without considering his written submissions and that he had made continuous follow up regarding non-delivery of notice on time and for not being given an opportunity for making representation and also for not considering the written submission made to the FAA. He subsequently filed an RTI application dated 12.07.2018 to the o/o the FAA to provide the certified copy of the written submissions made by him which was rejected by the CPIO on 02.08.2018 with remarks that the revised order was passed on 30.07.2018. The revised order was passed on 30.07.2018 by the FAA considering his written submission but again no opportunity or notice was given to him for hearing conducted by the FAA. As regards the Second Appeal, the Appellant submitted that there should be a definite time frame within which the investigation needs to be concluded. In support of his contention, the Appellant referred to the decision of the Commission in CIC/LS/A/2009/001113 (Shri Chetan Anand Parashar vs Income Tax Department, Ghaziabad) dated 19.02.2010 and CIC/LS/A/2009/001179 (Shri Virag R. Dhulia vs. Income Tax Department, Kolkata) dated 18.02.2010. It was also submitted that the CPIO cannot deny information citing Section 24 of the RTI Act, 2005. In this context, he referred to the decision of the Commission in CIC/SB/C/2016/900232-BJ (Mr. Sushanta Malkandy vs. CPIO, O/o Dy. Director of Income Tax (Inv.) Admn.) dated 14.02.2017 and the judgment of the Hon'ble High Court of Delhi in WP (C) No. 3114/2007 dated 03.12.2007. He also submitted that the broad outcome of the TEP should be communicated to the Complainant. Thus, it was prayed to direct the CPIO to conclude the investigation on the TEP within a specified time frame and provide him the outcome in a time bound manner.Page 2 of 5
The Commission referred to the definition of information u/s 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 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 also observed that the DGIT (Inv) was included in the list of organization exempted from the purview of the RTI Act, 2005 as per Section 24 r/w Second Schedule of the RTI Act, 2005. Furthermore, the Hon'ble High Court of Delhi in a similar matter in Pr. DIT (Inv) (1) vs. Ashwani Page 3 of 5 Kumar, W.P.(C) 11591/2017 dated 22.12.2017 stayed the decision of the Commission wherein a direction was issued to the Pr. DIT (Inv) (1) to inform the status of the Petition/Complaint dated 12.02.2016 addressed to PMO, within a period of 30 days from the date of receipt of this order. In the said matter, the Hon'ble High Court had also directed the Department to file an affidavit unequivocally stating that the complaint in question is a matter being investigated by the DGIT (Inv.) and not any other office of the IT Authority.
Moreover, the Commission also observed that in similar such matters where information was sought from organizations exempted from the purview of the RTI Act, 2005 as per Section 24 r/w Second Schedule of the RTI Act, the Hon'ble High Courts had inter alia in several decisions held as under:
1. The Hon'ble High Court of Delhi in the matter of CPIO, Directorate of Enforcement vs. Mr. Bimal Kumar Bhattacharya WP (C) No. 345/ 2018 dated 19.02.2018 held:
"6. Plainly, the impugned order cannot be sustained as it is contrary to the expressed language of Section 24(1) of the Act. Section 24(1) of the Act expressly excludes intelligence and security organizations specified in the Second Schedule of the Act from the purview of the Act. Admittedly, the Directorate of Enforcement is included in the Second Schedule to the Act and, thus, cannot be called upon to disclose information under the provisions of the Act. The only exception carved out from the exclusionary clause of Section 24(1) of the Act relates to information pertaining to allegations of corruption and human rights violation. Undisputedly, the information sought for by the petitioner cannot be categorized as such information.
7. The aforesaid question has also been considered by a Coordinate Bench of this Court in CPIO Intelligence Bureau v. Sanjiv Chaturvedi : 242 (2017) DLT 542, wherein this Court held that an organisation specified in the Second Schedule of the Act was excluded from the purview of the Act.
8. In view of the above, the petition and the pending application are allowed and the impugned order is set aside. However, it is clarified that this would not preclude the respondent from instituting any proceedings that he may be advised against M/s Thomas Cook (India) Limited, if so, entitled in law."
2. The Hon'ble High Court of Punjab and Haryana in its decision in Palwinder Sondhi v.
Central Information Commission and Ors. WO (C) No. 13211 of 2010 dated 28.07.2010 had held as under:
"Be that as it may, in the context of information sought, I find no fault with the reasons given in the impugned order for not supplying the information as the provisions of Section 24(1) of the Act clearly provide that nothing contained in the Act shall apply to the DRI, it being an organization established by the Central Government. Surely the information sought does not relate to corruption and human right violations as is evident from the nature of information sought. The order under the circumstances does not suffer from arbitrariness."
The Commission in the decision of Shri Virag R. Dhulia v. Income Tax Department, Kolkata in CIC/LS/A/2009/001179 dated 18.02.2010 had held as under:
"It is to be noted that investigation into a TEP cannot be allowed to go on ad-infinitum and that it should be concluded in a reasonable time frame whereafter the broad outcome thereof needs to be communicated to the appellant i.e. whether the allegations made in the TEP are fully true, partially true or untrue. No further information needs to be disclosed at this stage."Page 4 of 5
This Commission referred to the order dated 18/06/2013 (File No. CIC/RM/A/2012/000926 Sh. Ved Prakash Doda v/s ITO) wherein it was held as under:
"6. It has been the stand of the Commission that in respect of a tax evasion petition, once the investigation is completed, the appellant should be informed the broad results of the investigation, without disclosing any details. The appellant has a right to know as to whether the information provided by him was found to be true or false."
DECISION:
In the light of the facts available on record and the submissions made by both the parties, no further intervention of the Commission is required in the matter at this stage. However, the broad outcome of the investigation should be disclosed to the Appellant as soon as the investigation is completed.
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: 10.04.2019
Copy to:-
1. The Pr. CIT, Alwar, Aayakar Bhawan, Moti Doongri, Alwar 301-001 Page 5 of 5