Central Information Commission
Shri Jiwan Garg vs Income Tax Department on 26 February, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/LS/A/2009/000929
Right to Information Act 2005 - Section 19
PARTIES TO THE CASE:
Appellant : Shri Jiwan Garg
Public Authority : Income Tax Department
Date of Decision : 26.02.2010
FACTS
The origins of this second-appeal lie in appellant's RTI-application dated 25.11.2008, in which the appellant had sought, inter-alia, the following items of information (as summarized by the Appellate Authority, Ms.Garima Singh, in her order dated 26.03.2009):-
"A. Certified copies of Income Tax Returns and wealth-tax-returns along with all its annexures and documents/papers for the Assessment Years from A.Y. 2001-02 to 2004-05, as had been submitted by, (1) Shri Om Parkash (HUF) (2) Shri Om Parkash (Individual) (3) M/s. Om Parkash Krishan Chand (4) M/s. Garg Trading Co."
2. After he received a response from the CPIO, Ms.Neelam Sharma, Income Tax Officer, Sunam, dated 16.01.2009, appellant moved in first-appeal before the Appellate Authority (AA), Ms.Garima Singh, Joint Commissioner of Income Tax, Sangrur Range, Sangrur, who through her order dated 26.03.2009, directed that information relating to items at Sl.Nos.A.1 and A.2 above be disclosed. She, however, upheld the decision of the CPIO not to disclose information relating to items at Sl.Nos.A.3 and A.4 under section 8(1)(j) of the RTI Act. AA also cited exemptions under Sections 8(1)(d) and 8(1)(e) in support of her decision prohibiting disclosure of two items of information.
3. The reason why Appellate Authority authorized disclosure of two pieces of information listed at Sl.Nos.A.1 and A.2 above was as follows:-
As regards item at Sl.No.A.1, Appellate Authority's reasoning was that as the appellant was himself a part of the HUF, he was entitled to receive all information relating to the family. As regards Sl.No.A.2, disclosure of information was authorized because the third-parties did not object to such disclosure.Page 1 of 7
4. Appellate Authority had also consulted the third-parties in regard to the information listed at Sl.Nos.A.3 and A.4 in appellant's RTI-application and considered their objections. She concluded that these items of information were given over by the third-parties into the control of the Income Tax Department, which was obliged to maintain its confidentiality. She also concluded that, though held by the Income Tax Department, the information had all the characteristics of being personal to the third- parties who filed them before the department, and should not be authorized to be disclosed within the meaning of Section 8(1)(j) of the Act. She held that there was no public interest that would warrant disclosure of this admittedly personal information.
5. While upholding the CPIO's decision not to authorize disclosure of information relating to queries at Sl.Nos.A.3 and A.4 above, Appellate Authority noted as follows:-
Item at Sl.No.A.3:
a). The matter relates to a Firm going by the name and style M/s.Om Parkash Krishan Chand.
b). The Firm had several partners, one of whom was late Shri Om Parkash, in his capacity as the Karta of an HUF. The said Om Parkash has since died.
c). When the concurrence of the partners of the Firm for disclosure of the requested information was sought, they strongly opposed the proposal claiming that a family partition had taken place among the members of late Shri Om Parkash's HUF, in which appellant, as a member of HUF, had received his share following the partition. He, therefore, could not claim to continue to be a member of the HUF and had no locus-standi, to seek personal information.
d). Appellate Authority noted further that a civil dispute between the members of the erstwhile HUF was pending in the Court and no final decision had yet been made. Appellate Authority, therefore, reasoned that till the Court case finally settles, the entitlements of the members of the HUF, including the appellant, allowing him access to the HUF-
related information would be inappropriate lest it should have deleterious impact on the interests of the other parties to the ongoing litigation. She also noted that contrary to the claims of the appellant that he was a member of this partnership firm, the other members of the firm strongly opposed his claim.
e). Appellate Authority, therefore, proceeded to hold that there was no public interest in disclosing to the appellant the information which was so clearly personal to the members of the Partnership Firm on whose behalf the Income Tax Returns were filed before the Income Tax Department.
Page 2 of 7Item at Sl.No.A.4:
a) As recorded in her order by the Appellate Authority, the Firm in question i.e. M/s.Garg Trading Company, have had two partners, viz. Shri Vijay Kumar and Shri Darshan Kumar. Late Shri Om Parkash was a partner in this firm in his individual capacity before his death. The present partners of the Firm objected to the claim of the appellant to receive all information relating to the Firm on behalf of his late father. The third-
party members of the Partnership Firm referred the Appellate Authority to the family arrangement before the death of Shri Om Parkash, in which the appellant was given a share in the HUF and ceased to have any claim as its member. He had already separated from the HUF. Reference was also made to the civil suit initiated by the appellant to assert his rights as legal heir of late Shri Om Parkash.
b). In this case as well, Appellate Authority noted that appellant was using the RTI Act to access an information (which the third-parties had provided to the Income Tax Department in the process of filing their Income Tax Returns) without first having established through a judicial process his (appellant's) right to be treated as the legitimate legal-heir to Late Shri Om Parkash, both relating to the HUF and the Partnership Firms. She, therefore, concluded that till such time as the dispute regarding the appellant's claims to be Late Shri Om Parkash's legal heir remained unsettled, it would be inappropriate to predetermine his right and allow him access to all the information relating to the HUF and the Partnership Firms. If allowed, this would seem like an indirect acknowledgement of appellant's claims which have not yet been judicially determined, and which other members of the HUF as well as the members of the Partnership Firm were strenuously questioning.
6. The present appeal is directed against the orders of CPIO/AA.
7. The matter was initially heard by the Bench of Shri M.L. Sharma, IC, on 31.12.2009. The appellant appeared before the Commission. The Income Tax Department was represented by Ms Neelam Sharma, ITO. The appellant was briefly heard and on his request it was decided to refer the matter to the Full Bench.
8. The Chief Information Commissioner constituted the Full Bench consisting of the following :-
1. Shri A.N. Tiwari, Information Commissioner
2. Shri M.L. Sharma, Information Commissioner
3. Smt Deepak Sandhu, Information Commissioner
9. The Commission issued notices to the necessary parties, namely the appellant, the Income Tax Authorities and the 03 brothers of appellant viz. Shri Kamal Kumar Page 3 of 7 Garg, Shri Darshan Kumar Garg & Shri Vijay Kumar Garg and the matter was scheduled for hearing on 25.2.2010.
10. As scheduled the matter was heard on 25.2.2010. Appellant was present. Nobody appeared for the Income Tax Department, nor any of the 03 brothers the third parties of the appellant appeared before the Commission.
11. Appellant has challenged the AA's decision urging the following grounds:-
a. Appellant was the son and one of the legal-heirs of late Shri Om Parkash and was also a member of the HUF of which late Shri Om Parkash was the Karta.
b. During his lifetime, Late Shri Om Parkash had been filing Income Tax Returns both as the Karta of the HUF and as a partner in the family business firms i.e. M/s.Om Parkash Krishan Chand and M/s. Garg Trading Company.
c. In filing these Returns, Late Shri Om Parkash was representing the appellant as well as his other progenies.
d. Appellant claims that he was naturally entitled to have access to all the information which Late Shri Om Parkash filed on behalf of the family as well as the family-run businesses since appellant as the son of Late Shri Om Parkash could not be denied such an information.
12. In his further submissions, appellant has articulated the same point, arguing that a reference under Section 11(1) of the RTI Act to third-parties by the respondents was uncalled for because what the appellant was seeking was not any third-party information but an information to which he had a direct natural claim, being the son of Late Shri Om Parkash. He has argued at length about how he was victim of a criminal conspiracy by other members of the HUF and the partnership firms following the death of their father. He has alleged corruption and malpractices by the Income Tax Officers and criminal acts by the so-called third-parties to defraud the government of its rightful revenues. Besides, the appellant has also relied on the Single Bench decision dated 14th December, 2009 of this Commission in File No CIC/LS/A/2009/000647 (Rakesh Kumar Gupta Vs Commissioner of Income Tax). He has also relied on another Single Bench decision dated 21.12.2009 of the Commission in File No CIC/LS/A/2009/000626 (Smt Milly Ghosh Vs Commissioner of Income Tax) to buttress his case.
REASONING AND DECISION:
13. We have seen from the submissions in this case that a lot of effort has gone into the appellant claiming natural ownership of the requested information and others arguing that he had no such claim, or, at least, not till such time as his rights are judicially determined vis-à-vis others who contest them. It is somewhat odd for the appellant to claim that he had a natural right to own the information and yet he approaches the Commission for its disclosure. We would like to believe that if Page 4 of 7 appellant has a natural right to access a set of information, he must also possess that information. Not only in the present case, the appellant does not have automatic access to the information, i.e. the Income Tax Returns filed by the HUF and the partnerships in which he claims to be naturally included. Other parties object to his claim. Both parties are now before a civil court to recognize their respective rights. It is clear, therefore, that a dispute exists, in which appellant is pitted against third-parties. Appellant's claim, therefore, that there are no third-parties in this matter does not have legs to stand.
14. The definition of third-parties in the RTI Act is contained in Section 2(n), which reads as follows:-
(n) "third party" means a person other than the citizen making a request for information and includes a public authority.
15. The words are clear and unambiguous. Any party other than the applicant in a given RTI-matter is a third-party for the purposes of this Act.
16. In our view, the right of a person to be treated as a third-party vis-à-vis a certain RTI-application cannot be extinguished merely because the RTI-applicant claims that he has had a natural right to receive the information which the third-party either possesses or has lent into the control of a public authority such as the Income Tax Department, as in this case. For the purposes of the RTI Act, if a set of information has been provided to the public authority by a certain individual, or by a group of individuals, that individual or the group thereof gains the role of a third-party vis-a-vis another individual, who might seek this information through an RTI-application. The fact that the latter individual is related to the former in a composite entity such as the HUF or the partnership Firm will not alter the equation between him and those other individuals regardless of whether there was an outstanding dispute between the two or there was none. In other words, if an individual seeks a set of information held by a public authority and that public authority knows that such information has not been provided to it by the same individual but by others, the public authority cannot decide to disclose this information to the former unless those who actually supplied the information to the public authority were consulted within the meaning of Section 7(7) and Section 11(1) of the RTI Act. A claim by such an individual seeking the information that he was naturally entitled to receive this information could not alter the equation of third-party between him and the others.
17. We, therefore, hold that the appellant either belonging to a HUF or partnership is not an issue to be determined by this forum. For the purposes of the RTI Act, it is sufficient that the Income Tax Returns, which appellant is seeking, were not filed by him but by others who object to their disclosure to the appellant. Disclosing or not disclosing such an information, therefore, has to be arbitrated, taking into full account the objection for its disclosure by the third-parties, who were the actual filers of the information. It has been held in a number of decisions of the Commission that the Income Tax Returns are personal to those filing it and cannot, therefore, be disclosed under Section 8(1)(j), unless an over-arching public interest is clearly demonstrated. None exists in the present case.
Page 5 of 718. We may also observe that the decisions relied upon by the appellant do not help him at all as the factual matrix of these cases is substantially different.
19. In result, we hold that disclosure of the requested information cannot be authorized in the present case. The order of the Appellate Authority is upheld.
20. Appeal disposed of with these directions.
Sd/- Sd/- Sd/-
(A.N. TIWARI) ( M.L. SHARMA) (DEEPAK SANDHU)
Information Commissioner Information Commissioner Information Commissioner
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
( K.L. DAS ) Assistant Registrar Page 6 of 7 Address of Parties :
1. Shri Jiwan Garg F-2/194, Sector-16, Rohini, Delhi-110089
2. Shri Kamal Kumar Garg, S/o Shri Om Prakash Garg, C/o Ms Om Prakash Krishan Chand (Garg Sweets), Halwai Shop, Old Anaj Mandi, Soham, Sangrur, Punjab-148028
3. Shri Darshan Kumar Garg S/o Shri Om Prakash Garg, C/o Ms Om Prakash Krishan Chand (Garg Sweets), Halwai Shop, Old Anaj Mandi, Soham, Sangrur, Punjab-148028
4. Shri Vijay Kumar Garg S/o Shri Om Prakash Garg, C/o Ms Om Prakash Krishan Chand (Garg Sweets), Halwai Shop, Old Anaj Mandi, Soham, Sangrur, Punjab-148028
5. The Income Tax Officer & CPIO Mata Modi Road, Sunam, Sangrur, Punjab-148028
6. The Jt Commissioner of Income Tax Sangrur Range, Income Tax Department, Sangrur, Punjab-148001 Page 7 of 7