Central Information Commission
Seema Mittal vs Chief Commissioner Of Income Tax (Cca), ... on 14 November, 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.(s):- CIC/CCITD/A/2017/171690-BJ +
CIC/CCITD/A/2017/171692-BJ
1. Mrs Bhuwan Mittal
2. Ms Seema Mittal
....अपीलकता
/Appellant
VERSUS
बनाम
1. CPIO
Asst. Commissioner of Income Tax (Hqrs) (E)
Office of the Commissioner of Income Tax (Exm.)
E-2 Block, 26th Floor,
Prataykash Kar Bhawan
Civic Centre, New Delhi - 110001
2. CPIO
ITO (Exmp.), Ward -1(4)
Office of the ITO (E), Ward -1(4)
Pratyaksh Kar Bhawan
E-2 Block, Civic Centre
New Delhi - 110001
... ितवादीगण /Respondent
Date of Hearing : 12.11.2018 and 13.11.2018
Date of Decision : 14.11.2018
ORDER
RTI: 1: CIC/CCITD/A/2017/171690-BJ Date of RTI application 06.07.2017 CPIO's response 12.07.2017 Date of the First Appeal 18.08.2017 First Appellate Authority's response 25.08.2017 Date of diarized receipt of Appeal by the Commission 13.10.2017 FACTS The Appellant vide her RTI application sought information on 05 points regarding list of current members of Mass Media Education Society, last return filed and assessment conducted of the society, period for which he was the member of the above referred society and current status of his membership and issues related thereto.
Page 1 of 9The CPIO and Asst. CIT (Hqrs) (E), New Delhi vide its letter dated 12.07.2017 transferred the application to the ITO (E), Ward 1 (4), New Delhi. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 25.08.2017 also transferred the RTI application to the ITO (Exemptions) Ward 1 (4), New Delhi.
RTI 2: CIC/CCITD/A/2017/171692-BJ Date of RTI application 06.07.2017 CPIO's response 25.07.2017 Date of the First Appeal 03.08.2017 First Appellate Authority's response 25.08.2017 Date of diarized receipt of Appeal by the Commission 13.10.2017 FACTS
The Appellant vide her RTI application sought information on 06 points regarding list of current members of Mass Media Education Society, last return filed and assessment conducted of the society, period for which she was the member of the above referred society and current status of her membership and issues related thereto.
The CPIO and ITO (Exemption) Ward 1(4), New Delhi vide its letter dated 25.07.2017 stated that the as per the system no member of Smt. Bhuwan Mittal was there in the list. Furthermore, the information on point no. 01, 03, 04, 05 and 06 related to a third party and no larger public interest warranting its disclosure was justified by the Appellant. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 25.08.2017 denied disclosure of information as per Section 8 (1) (e) and (j) of the RTI Act, 2005.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Yogesh Mittal (Adv.) and Ms. Swati Bhatnagar (Adv.) Appellant's representatives;
Respondent: Mr. G. C. Bhardwaj, ITO Ward 1 (4);
Both the matters were considered for decision together since they pertained to similar RTI applications. The Appellant's representative reiterated the contents of the RTI application and stated that no information was provided in Appeal No. CIC/CCITD/A/2017/171690-BJ despite the transfer of RTI application to the ITO (E), Ward 1 (4), New Delhi and the order of FAA. As regards Appeal No CIC/CCITD/A/2017/171692-BJ, it was submitted that incomplete, misleading and evasive reply was furnished by the CPIO. While explaining that the information was desired regarding the period for which the Appellants were the member of the Society mentioned in the RTI application, copy of the income tax return filed by it, etc, the Appellant's representative submitted that they had also approached the Registrar of Societies in the matter who had informed him that they did not possess any information for the period from 2001-14 and that no other action could be initiated at their end. He further submitted that an FIR was also filed against the Society claiming exemption under the IT Act, 1961, in 2016 under intimation to the Respondent Public Authority and that they were making periodic correspondence with the Respondent Public Authority since 2014. During the hearing on 13.11.2018, the Appellant's representative also furnished a copy of an FIR No. 226 dated 05.04.2016 registered with the Page 2 of 9 Madhu Vihar (P.S., East Delhi District) and notices issued against the society u/s 142 (1) of the IT Act, 1961. It was also submitted that he had received certain documents from the Registrar of Societies pertaining to modification/ amendment in the registration of the Society as per which it was revealed that the Appellant was a member of the society prior to 2014. In its reply, the Respondent submitted that a reply was provided to the Appellant vide letter dated 25.07.2017 informing her that the name of the Appellant did not feature in the list of members of the society. On being queried by the Commission regarding the status of the Society and the action taken based on the copy of FIR furnished by the Appellant, no satisfactory response was offered by the Appellant who submitted that they solely acted based on the details provided by the Assessee in their IT returns and that the verification of societies was carried out only on the specific complaints received by them. On being further questioned if action could be taken in co- ordination with the Registrar of Societies regarding the verification of status of such societies, the Respondent replied in the affirmative. The Appellant asserted that he had been informing the IT Authorities consistently about the fraudulent activities of this society but no action was initiated by the Respondent. In reply, the Respondent feigned ignorance about any such correspondence and that his attention was drawn to the correspondence produced by the Appellant during the hearing.
Having heard both the parties, the Commission observed that several alarming allegations pertaining to forgery of documents were made by the Appellant which pointed towards the process of verification of societies that were claiming IT exemption under the provisions of the IT Act, 1961. It also indicated a perceptible lack of periodic co-ordination between the IT (Exemption) Department and the Registrar of Societies regarding compliance of the relevant provisions of law by the Societies claiming exemption under the provisions of the IT Act, 1961. The Commission felt that the issues raised certainly involved larger public interest since the Government was granting exemption to the Third Party from payment of taxes hence there ought to exist transparency and accountability in their activities.
As regards any claim of the third party personal information regarding the affairs of the Society, the Commission took note of the issue regarding the "personal information" held by an individual in its personal capacity and the information held by the entities/corporations/trusts in their private capacity. In this context, a reference was drawn on the Hon'ble Delhi High Court decision in Naresh Trehan vs. Rakesh Kumar Gupta and Ors.( 2015) 216 DLT 156 wherein it was held:
"20. It has been contended by the petitioners that the expression "personal information"
must also extend to information relating to corporate entities. Inasmuch as they may also fall within the definition of expression "person" under the General Clauses Act, 1897 as well as under the Income Tax Act, 1961. However, I am unable to accept this contention for the reason that the expression "personal information" as used in clause (j) of Section 8(1) of the Act has to be read in the context of information relating to an individual. A plain reading of the aforesaid clause would indicate that the expression "personal information" is linked with "invasion of privacy of the individual". The use of the word "the" before the word "individual" immediately links the same with the expression "personal information"
Page 3 of 921. Black's law dictionary, sixth edition, inter alia, defines the word "personal" as under:- "The word "personal" means appertaining to the person; belonging to an individual; limited to the person; having the nature or partaking of the qualities of human beings, or of movable property."
23. In my view, the aforesaid reasoning would also be applicable to the expression "personal" used in Section 8(1)(j) of the Act. The expression 'individual' must be construed in an expansive sense and would include a body of individuals. The said exemption would be available even to unincorporated entities as also private, closely held undertaking which are in substance alter egos of their shareholders. However, the expression individual cannot be used as a synonym for the expression 'person'. Under the General Clauses Act, 1897 a person is defined to "include any company or association or body of individuals, whether incorporated or not". Thus, whereas a person would include an individual as well as incorporated entities and artificial persons, the expression 'individual' cannot be interpreted to include such entities. The context in which, the expression "personal information" is used would also exclude it application to large widely held corporations. While, confidential information of a corporation is exempt from disclosure under Section 8(1) (d) of the Act, there is no scope to exclude other information relating to such corporations under Section 8(1)(j) of the Act as the concept of a personal information cannot in ordinary language be understood to mean information pertaining to a public corporation."
22. A perusal of the above definition also indicates that the ordinary usage of the word "personal" is in the context of an individual human being and not a corporate entity. The U.S. Supreme Court has also interpreted the expression "personal" to be used in the context of an individual human being and not a corporate entity. In the case of Federal Communications Commission v. AT&T Inc: 2011 US LEXIS 1899 the US Supreme Court considered the meaning of the expression "personal privacy" in the context of the Freedom of Information Act, which required Federal Agencies to make certain records and documents publically available on request. Such disclosure was exempt if the records "could reasonably be expected to constitute an unwarranted invasion of personal privacy". The U.S. Supreme Court held that the expression "Personal" used in the aforesaid context could not be extended to corporations because the word "personal" ordinarily refers to individuals. The Court held that the expression "personal" must be given its ordinary meaning. The relevant extract of the said judgment is as under:
"Person" is a defined term in the statute; "personal" is not. When a statute does not define a term, we typically "give the phrase its ordinary meaning," [Johnson v. United States, 559 U.S., 559 U.S. 133, 130 S. Ct. 1265, 176 L. Ed. 2d 1, 8 (2010)]. "Personal"
ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word "personal" to describe them. Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, "I have something personal to tell you," we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, "that's personal." A company spokesman, when asked for information about the company, would not. In fact, we often use the word "personal" to mean precisely the opposite of business related: We Page 4 of 9 speak of personal expenses and business expenses, personal life and work life, personal opinion and a company's view."
Furthermore, the Hon'ble High Court of Gujarat in Rajendra Vasantlal Shah vs. Central Information Commissioner and Ors AIR 2011 Guj 70 had observed that any statutory body/ Institution/association meant to serve public good cannot claim to be working in a fiduciary capacity, and held as under:
"8.4. Respondent No. 4 is a religious charitable Trust, functioning under the Scheme formulated by the District Court, having considerable public importance and registered under the Bombay Public Trust Act, as a religious charitable Trust. Considering its nature and activities, emerging from the objects of the Trust, it can be stated that disclosure of such information is in relation to any public interest of activity. The Trust is engaged, in public activities, disclosure of its statements and accounts of income-tax returns and assessments orders cannot be withheld under Section 8(1)(e) or (j)of the R.T.I. Act."
It was observed that the aforementioned decision was challenged before the a larger bench in LPA No. 49 of 2012 In SPECIAL CIVIL APPLICATION No. 7538 of 2010 With CIVIL APPLICATION No. 368 of 2012 In LETTERS PATENT APPEAL No. 49 of 2012, dated 19.01.2012, wherein the Division bench had upheld the order of the Single Bench and dismissed the Letters Patent Appeal.
Moreover, the Commission draws reference to the observations made by the Hon'ble Delhi High Court in WRIT PETITION (CIVIL) NO. 7265 OF 2007 (Date of Decision: 25th September, 2009) wherein the Court has clarified the definition of "information" under Section 2(f) of the RTI Act,2005 and held as under:
8. "Information as defined in Section 2(f) means details or material available with the public authority. The later portion of Section 2(f) expands the definition to include details or material which can be accessed under any other law from others. The two definitions have to be read harmoniously. The term ―held by or under the control of any public authority in Section 2(j) of the RTI Act has to be read in a manner that it effectuates and is in harmony with the definition of the term ―information as defined in Section 2(f). The said expression used in Section 2(j) of the RTI Act should not be read in a manner that it negates or nullifies definition of the term ―information in Section 2(f) of the RTI Act. It is well settled that an interpretation which renders another provision or part thereof redundant or superfluous should be avoided. Information as defined in Section 2(f) of the RTI Act includes in its ambit, the information relating to any private body which can be accessed by public authority under any law for the time being in force. Therefore, if a public authority has a right and is entitled to access information from a private body, under any other law, it is ―information as defined in Section 2(f) of the RTI Act. The term ―held by the or under the control of the public authority used in Section 2(j) of the RTI Act will include information which the public authority is entitled to access under any other law from a private body.
13. Information available with the public authority falls within section 2(f) of the RTI Act. The last part of section 2 (f) broadens the scope of the term information' to include information which is not available, but can be accessed by the public authority from a private authority. Such information relating to a private body should be Page 5 of 9 accessible to the public authority under any other law. Therefore, section 2(f) of the RTI Act requires examination of the relevant statute or law, as broadly understood, under which a public authority can access information from a private body. If law or statute permits and allows the public authority to access the information relating to a private body, it will fall within the four corners of Section 2(f) of the RTI Act."
Furthermore, the Commission referred to the observations made by Hon'ble Courts in the light of disclosure of information in "public interest", keeping in view the true spirit behind the promulgation of the RTI Act, 2005, which are as under:
The Commission further referred to the decision of the Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 wherein while explaining the term "Public Interest" held:
"22. 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 recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
The High Court of Bombay in Shonkh Technology International Ltd. v. State Information Commission Maharashtra Konkan Region, Appellate Authority and United Telecom Limited v.
Page 6 of 9State Information Commission Maharashtra Konkan Region and Ors., W.P. Nos. 2912 and 3137 of 2011 decided on 01.07.2011 held as under
"The RTI Act is an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. The preamble of the RTI Act itself refers to this aspect and the constitutional principles enshrined in several articles of the Constitution. It is very clearly postulated that democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold the Governments and their instrumentalities accountable to the governed. The revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Therefore, the RTI Act seeks to harmonize these conflicting interests while preserving the paramount nature of democratic ideals."
Moreover, the purpose and object of the promulgation of the RTI Act, 2005 was to make the public authorities more transparent and accountable to the public and to provide freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto. It is noted that certain issues have been raised in the RTI application which relate to a society claiming exemption under the provisions of the IT Act. Moreover, during the course of the hearing, it was categorically stated by the Respondent that several exemptions/ benefits were claimed by the Society under the said Act. Therefore it is apparent that the matter certainly involved larger public interest to usher in transparency and accountability on the activities of such entities claiming exemptions under the IT Act, 1961.
Also, the Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015, while dealing with significance of free flow of information had stated as under:
"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy."
The Commission further referred to the full bench decision of the CIC in File No.CIC/LS/A/2009/00190 dated 09.03.2010 wherein the CIC had decided on the issue of disclosure of information by the public charitable trusts as under:
10. "We have given a serious thought to the matter. We have also taken note of the pre-
amble of the RTI Act which aims at promoting transparency and accountability in the working of the every Public Authority. In this context, it would be apt to advert to sub section 15 of section 2 of the IT Act which defines "charitable purpose". This sub section is extracted below :- "15. 'Charitable purpose' includes relief of the poor, education, medical relief and advancement of any other object of general public utility.
Page 7 of 9Needless to say, avowed purpose for which these institutions/entities come into existence is charity. Charity and secrecy are contradiction in terms. Any charitable institution should have no secrets and should be open to public for all purposes, including its finances. In other words, in our opinion, it will be in the larger public interest if the identity of the charitable trusts/institutions/entities which are granted exemption from income tax under the statutory provisions are placed in the public domain. Hence, in exercise of powers under section 25(5) of the RTI Act, we hereby recommend that the identity of the charitable trusts/institutions/entities which have been granted exemption from income tax under section 10 & under section 11/12 of the Income Tax Act is placed in public domain by way of suo-motu disclosure by the CBDT in terms of section 4(1)(b) r/w section 4(2) of the RTI Act."
The above mentioned decision of the CIC had been referred in File no.CIC/RM/A/2014/004628 (dated 23.12.2016) File no. CIC/RM/A/2014/ 003758/BS/9478 (dated 11.01.2016) and File No.CIC/DS/A/2012 /000688/RM (dated 10.04.2013).
The Commission felt that the Supreme objective/ motive with which the Central/ State Information Commission were constituted were to set out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. In the light of the preamble of the RTI Act, 2005 there are several exemptions carved out under Section 8 of the RTI Act, 2005 which can be used by a Public Authority to deny information depending on the facts and circumstances of each case.
The purpose of the RTI Act, 2005 is transparency and accountability in the functioning of entities which impact citizens' daily lives. Recognizing the significance of the RTI Act, 2005 in empowering people with the means to scrutinize government action, the Hon'ble Delhi High Court in its judgment delivered by Justice Ravindra Bhat in Indian Olympic Association -Vs- Veerish Malik and others(WP)(C) No. 876/2007 had held as below:-
"The Act marks a legislative milestone in the post independence era to further democracy. It empowers citizens and information applicants to demand and be supplied with information about public records. Parliamentary endeavor is to extend it also to public authorities which impact citizens daily lives. The Act mandates disclosure of all manner of information and abolishes the concept of locus standi of the information applicant; no justification for applying (for information) is necessary; decisions and decision making processes, which affect lives of individuals and groups of citizens are now open to examination. Parliamentary intention apparently was to empower people with the means to scrutinize government and public processes, and ensure transparency. At the same time, the need of society at large, and Governments as well as individuals in particular, to ensure that sensitive information is kept out of bounds have also been accommodated under the Act."
The Commission also observed that in a similar matter where information regarding charitable trusts claiming exemption u/s 12A of the IT Act, 1961 was sought, the Division Bench of the Commission in Appeal No. in Appeal No. CIC/BS/A/2016/001091-BJ-Final dated 05.01.2018 while observing that the matter certainly involved larger public interest since the Government was granting exemptions to the Third Party from payment of taxes allowed for disclosure of information.
DECISION:
Page 8 of 9Keeping in view the facts of the case and the submissions made by both the parties and in the light of the observations made in the preceding paragraphs, the Commission instructs the Chief Commissioner (Exemptions), New Delhi to constitute a Committee led by an officer not below the rank of a Joint Secretary to inquire into the matter and submit its report fixing responsibility on the delinquent officer together with the information sought by the Appellant under intimation to the Commission within a period of 30 days from the date of receipt of this order. The Commission noted with concern about the recalcitrant attitude of the CPIO (ITO (Exemption) Ward 1 (4), New Delhi) who had dealt with the RTI application in a casual and callous manner. The CPIO is therefore cautioned to exercise due care in future to ensure that correct and complete information is furnished timely to the RTI applicant(s) in-line with the spirit of the Act, failing which penal proceedings under Section 20 shall be initiated.
The Appeals stand disposed with the above direction.
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: 14.11.2018
Copy to:
1. Chairman, CBDT, Department of Revenue, M/o Finance, North Block,
New Delhi - 110001;
2. Mr. P. K. Gupta, Chief Commissioner of Income Tax (Exemptions), Pratyaksh Kar Bhawan, E-2 Block, Civic Centre, New Delhi - 110001
3. Mr. Sushil Kumar, CIT (Exemptions), Room No. 2602, 26th Floor, Pratyaksh Kar Bhawan, E-2 Block, Civic Centre, New Delhi - 110001 Page 9 of 9