Central Information Commission
Bhawna Jain vs Chief Commissioner Of Income Tax (Cca) , ... on 7 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/CCAKP/A/2017/122479-BJ
Ms. Bhawna Jain
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO & ITO (Exemption)
Income Tax Department
Room No.604, 6th Floor,
Aayakar Bhawan, Sanjay Place,
Agra, Uttar Pradesh - 282002
... ितवादीगण /Respondent
Date of Hearing : 06.08.2018
Date of Decision : 07.08.2018
Date of RTI application 28.12.2016
CPIO's response 09.01.2017
Date of the First Appeal 14.01.2017
First Appellate Authority's response 31.01.2017
Date of diarised receipt of Appeal by the Commission 04.04.2017
ORDER
FACTS:
The Appellant vide her RTI application sought information on 03 points regarding the registration details of Shri Digambar Jain Shiksha Samiti u/s 12 AA of the Income Tax, 1961, the period from which the Samiti was filing an ITR along with the source of income and other issues related thereto.
The CPIO, vide its letter dated 09.01.2017 stated that the information sought was pertaining to the third party information hence, the same could not be provided. However, it was intimated that the society was registered u/s 12AA of the Act w.e.f 01.04.2014 and it was regularly filing its return from the A.Y. 2012-13. Dissatisfied with the CPIOs response, the Appellant approached the FAA. The FAA, vide its order dated 31.01.2017 concurred with the CPIOs response and further relied upon the decision of the Commission dated 30.07.2008 in the case of Shri Pratik Gautam vs. Income Tax Department to substantiate his case.Page 1 of 4
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. Vijay Singh, ITO (Exemption) through VC;
The Appellant remained absent during the hearing. The Respondent reiterated the submissions of the CPIO / FAA and stated that the RTI application was examined and replied suitably.
The Commission at the outset observed that as per the provisions of the RTI Act, 2005 only such information that is held and available with the public authority can be disclosed. In this context 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 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."Page 2 of 4
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 observed that the matter of disclosure of Income Tax Return of an individual/ person is no longer res integra and has been adjudicated by several High Courts and the Hon'ble Supreme Court of India in a series of decisions mentioned as under:
The Hon'ble Supreme Court 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."
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 while observing that the act of filing returns with the department cannot be construed as public activity held that information contained in the income tax returns would be personal information under Section 8(1)(j) of the Act. The relevant extract of the decision is mentioned below:
"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 Page 3 of 4 information relating to individual assessee could not be disclosed. Unless, the CIC held that the same was justified "in the larger public interest"
Similarly 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 be 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."
The Appellant was not present to contest the submissions of the Respondent or to establish the larger public interest in disclosure which outweighs the harm to the protected interests.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, 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: 07.08.2018
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