Central Information Commission
Naresh Kadyan vs Directorate General Of Goods And ... on 28 December, 2022
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/DGSTX/A/2021/625096
Naresh Kadyan ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Directorate General of Goods
and Service Tax, RTI Cell
5th Floor, Telephone Exchange
(MTNL) Building, 8, Bhikaji Cama Place,
New Delhi-110066
CPIO,
DGST, GST Policy Wing, RTI Cell,
North Block, New Delhi-110001. .... ितवादीगण /Respondent(s)
Date of Hearing : 15/12/2022
Date of Decision : 27/12/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 08/04/2021
CPIO replied on : 03/05/2021
First appeal filed on : 04/05/2021
First Appellate Authority's order : 21/05/2021
2nd Appeal/Complaint dated : NIL
Information sought:
1The Appellant filed an RTI application dated 08.04.2021 seeking the following information:
"1.DARPG/E/2021/08226 was lodged by replied by Principal Director General for information relating to GST Rates, you may visit hrrps://cbic-gst.gov.in/gst- goods-servises-rates.html, and we have visited and found wildlife trophies, as stated above, which were covered under the Wildlife Protection Act 1972:Ivory,tortoise-shell, whalebone and whale bone hair, horns etc.
2.Action taken reports on legal notice under section 55 of the Wildlife Protection Act, 1972 as MOEAF/E/2021/00534.
3. Ivory, tortoise-shell, whalebone and whalebone hair, horns etc., banned being wildlife trophies as per section 49 of the Wildlife Protection Act, 1972
4. All copies of advices, communication made - received with concerned file notings, related to Ivory, tortoise-shell, whalebone and whalebone hair horns etc, as trophies.
5. Complete details related to Central with States GST, charged since beginning till date.
6. Any proposal to withdraw Central with State GST on wildlife trophies, which is prohibited by law."
The CPIO, DGGST replied to the appellant on 03.05.2021 as under:-
"1. In respect of point no.1 the reply has already been given, no further answer needs to be given.
2. The reply in respect to point no. 2,3 & 4 ie: Legal notice, the same would be replied by Chief Wildlife Warden of Delhi as the legal notice is addressed to Chief Wildlife Warden of Delhi.
3. The reply in respect of point no.5 & 6, these points are related to GST charging and any proposal to withdraw GST on wildlife trophies, this pertains to the GST Policy wing."
Being dissatisfied, the appellant filed a First Appeal dated 04.05.2021. FAA's order dated 21.05.2021, upheld the reply of CPIO while making the following observations:
2"He submitted that he had no problems if the department issued a Notification that trading was legally allowed of the items such as Ivory, Tortoise shell, Whalebone and Whalebone hair and horns etc which are wildlife trophies and covered under the Wildlife Protection Act, 1972. Shri Naresh Kadiyan was made to understand that the Protection, preservation or trading of such items are banned under the Wildlife Protection Act, 1972, wherein the powers have been vested and is exercised by the Wild Life Authorities and that the DGGST has no role in policy framing of Wild Life Protection Act, 1972. Shri Naresh Kadiyan, was informed that the GST Taxation only recognises "Supply of Goods and Services"
and the tariff applicable is subject to Laws applicable under Various Acts. The Policy framed and to be framed under the GST are examined by the GST Policy Wing and the Policy which considers merits are proposed to the GST Council which is the final constitutional body to decide upon the Policies and GST Rates. The Appellant again reiterated w.r.t to his Appeal on the subject RTI Application that the details provided by the department was not complete and satisfactory. Therefore, the details of the RTI application filed by him, was brought to his attention and the same was dealt serially."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through intra-video conference. Respondent: Virendra Singh Kalshain, Assistant Commissioner DGGST & CPIO; Deepak Panwar, Inspector; Manish Deo Mishra, CPIO, GST Policy Wing and Abhinav Singh, Suptd. present through intra-video conference.
The Appellant argued on the same lines as mentioned in the observations of the FAA's order quoted above and did not as such agitate on any aspect of the RTI Act.
Virendra Singh Kalshain, Assistant Commissioner DGGST & CPIO reiterated the reply provided to the RTI Application and submitted as under:
"In the good faith of law and spirit of the RTI Act, 2005, the concerned CPIO has already responded to the Query requesting the applicant to refer to CGST Act, 3 2017 which is freely available in the public domain which can be accessed through the link https://cbic-gst.gov.in/gst-goods-services-rates.html There was no role of the CPIO in this matter by this office since these are not in the nature of any information held by or under his control.
Point No. 2,3 and 4 did not pertain to DGGST, New Delhi Point No. 5 & 6 were forwarded under Section 6(3) of the RTI Act to GST Policy Wing."
Manish Deo Mishra, CPIO, GST Policy Wing invited the attention of the bench to his written submissions stating as under:
"2. That the information sought did not pertained to GST Policy Wing, hence the application dated 21.05.2021 was partially transferred to CPIO, TRU-II, CBIC, North Block, New Delhi on 27.05.2022 electronically.
3. That for replying in respect of Point No. 5 a copy of the RTI application was partially transferred to CPIO, GSTN physically vide letter F. No. 20/11/119/2017-GST dated 28.05.2021 bearing the following remarks:
'Since the requested information in respect of Point No. 5 does not pertain to the GST Policy Wing and more closely concerns to CPIO, GSTN, New Delhi, the application is being forwarded to the concerned CPIO, GSTN, New Delhi under Section 6(3) of the RTI Act, 2005 with request to provide the requisite information if available directly to the applicant, subject to the provisions of the RTI Act and the Rules made thereunder. If any part of the application falls under any other office, it may please be further transferred to the Public Authority to which the subject Matter pertains.' A copy of the letter F.No. 20/11/119/2017-051- dated 28.05.2021 had also been sent to the RTI applicant.
xxx
5. That since the RTI application 22.05.2022 received by the GST Policy Wing had been transferred to CPIO, TRU-II and CPIO, GSTN and the response had already been provided to the appellant on 28.05.2021 on online portal, the RTI application stands disposed of."4
Decision:
The Commission at the outset observes that the instant appeal lies against points 1, 5 & 6 of the RTI Application and the information sought therein does not conform to Section 2(f) of the RTI Act as the Appellant has not sought for any specific record but is merely putting forth a grievance and expressing conjecture. The same is also evinced from the observations made by the FAA during the First Appeal hearing as well as from the arguments made by the Appellant before this bench, none of which was amenable to the mandate of the RTI Act as the Appellant is insisting on certain policy changes. The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(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;.."
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it washeld as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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 5 opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....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...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(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;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating 6 authorities and cannot properly be classified as information." (Emphasis Supplied Having observed as above, the Commission finds no reason to call into question the merits of the replies provided by the CPIO or the decision of the CPIOs to transfer the RTI Application to other concerned public authorities perhaps in a bid to facilitate the Appellant to the best extent possible.
The Appellant is advised to agitate the issues raised by him before the appropriate forum.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7