Central Information Commission
Satyakam Jena vs Chief Commissioner Of Income Tax (Cca) , ... on 24 December, 2019
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No.(s):- CIC/CCABW/A/2018/106527-BJ+
CIC/CCABW/A/2018/105780-BJ+
CIC/CCABW/A/2018/147995-BJ
Mr. Satyakam Jena
....अपीलकताग/Appellant
VERSUS
बनाम
1. CPIO
ITO (Exemptions)
Office of the Income Tax Officer (Exemptions)
Aayakar Bhawan, Shelter Square
Cuttack - 753008
2. CPIO & ITO, Ward- 4(2)
Office of the ITO
3rd Floor, Aayakar Bahwan, Rajaswa Vihar
Bhubaneshwar - 751007
...प्रनतवािीगण /Respondent
Date of Hearing : 18.12.2019
Date of Decision : 24.12.2019
ORDER
RTI - 1 File No CIC/CCABW/A/2018/106527-BJ RTI - 2 File No CIC/CCABW/A/2018/105780-BJ Date of RTI application 09.09.2017 CPIO's response 20.10.2017 Date of the First Appeal 14.09.2017 First Appellate Authority's response 12.10.2017 Date of diarised receipt of Appeal by the Commission 25.01.2018/ 31.01.2018 FACTS:
The Appellant vide his RTI application sought information regarding the alleged fake institution in the name & style the Indian School of Fire and Safety Engineering, whether the institution was registered under the PAN directory or not.
Dissatisfied by the response of the CPIO (not on record), the Appellant approached the FAA. The FAA vide its order dated 12.10.2017, stated that the Appellant had been provided with the Page 1 of 8 information vide letter dated 06.09.2017 and rejected the Appeal stating the same to be devoid of any merit and thus not maintainable. In the detailed decision of the FAA it has been noted that the Indian School of Fire and Safety Engineering is a private partnership firm registered with IGR, Odisha. It was emphasized that the said institution is a firm and not an individual. Furthermore, it was stated that in case of the said institution, the owner has been booked by Shaheed Nagar Police under Section 419, 420, 467, 468, 471 and 34 IPC and is now facing trial in the Court of SDJM, Bhubaneswar. The Hon'ble High Court of Odisha has permitted the collection of evidence and their deposition with the investigating officer in the case. That the said applicant also filed repeated RTI applications dated 15.09.2017, 22.09.2017 and 27.09.2017 seeking similar information repeatedly. It was held that the applicant was seeking answers to questions which was not covered under RTI Act, 2005 (Saidur Rehman vs. CIC) decision No. CIC/AA/A/2006/00032 and 00034 dated 22.06.2007. A reference was also made to the definition of information under Section 2 (j) of the RTI Act, 2005. Another reference was made to decision dated 20.05.2016, in case of Mrs. Nalini Singhal vs. Air India CIC/YA/A/2015/000738-BJ. The FAA also made a reference to the decision of the Hon'ble Supreme Court in the matter of Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012; 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors); the Hon'ble High Court of Bombay in Shailesh Gandhi v. CIC and Ors WP 8753 of 2013 dated 06.05.2015; the Hon'ble High Court of Delhi in Shail Sahni vs Sanjeev Kumar and Ors (WP (C) 845/2014); Madras HC in P. Jayasankar vs Chief Secretary to Government of Tamil Nadu and Gunaseelan IPS (WP Nos 3776 and 3778/ 2013); Karnataka High Court in WP No. 10663/2006 (AIR 2009 Karnataka 8) and the decision of the Commission in Om Prakash Goel vs IA & AD, Shimla in CIC/AT/A/2008/597.
Subsequently, vide letter dated 20.10.2017, the CPIO and ITO (Exemption) stated that the institution named "Indian School of Fire and Safety Engineering" was not under the territorial jurisdiction of ITO (Exemption), Cuttack and no registration u/s 12AA of the IT Act had ever been granted to the above institution. Further on verification of the system on PAN query it showed that no PAN had been allotted to the said institution. On the second part of the application it was stated that all the queries were not part of information since it related to giving answers or opinions to queries which were not contemplated under the RTI Act, 2005. Therefore, the information could not be furnished.
RTI - 3 File No. CIC/CCABW/A/2018/147995-BJ Date of RTI application 05.03.2018 CPIO's response Nil Date of the First Appeal 18.04.2018 First Appellate Authority's response 24.05.2018 Date of diarised receipt of Appeal by the Commission 31.07.2018 FACTS:
The Appellant vide his RTI application sought information inter alia regarding the xerox copy of partnership deed of its own firm submitted by the Indian School of Fire and Safety Engineering (ISFSE) Bhubaneswar and the statement of the defense with all supporting documents submitted by the ISFSE related to the allegations made against the firm.
Dissatisfied by the response of the CPIO (not on record), the Appellant approached the FAA. The FAA vide its order dated 24.05.18, stated that the CPIO has rightly disposed off the Page 2 of 8 application u/s 8(1)(j) of the RTI Act, 2005 and disposed the appeal on the ground that it was devoid of merit.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Satyakam Jena through VC;
Respondent: Mr. A. K. Mallick, ITO, Ward 4 (2), Bhubaneswar and Mr. Panchanan Pradhan, Inspector, Cuttack through VC;
The Appellant reiterated the contents of the RTI application and stated that the information sought was incorrectly and malafidely denied by the Respondent since it was not the personal information of an individual but was information regarding the registration of PAN in the name of Indian School of Fire and Safety Engineering. He further objected to the contention of the Respondent that Mr. Manoj Kumar Agarwal was associated with the said firm and alleged that the Indian School of Fire and Safety Engineering was a fake institution which had to be scrutinized by the Courts of Law in the interest of unsuspecting students and parents who get duped with fake degrees and diploma issued by the institution. Furthermore, the institution had been booked for a number of offences that were pending trial and being an informant in the case he had been permitted by the Hon'ble High Court of Orissa to collect evidence and deposit the same with the investigating officer in the case. The Appellant also denied the receipt of the written submission sent by the Respondent. He thereafter referred to his written submission dated 06.12.2019, 08.12.2019, 09.12.2019 and 11.12.2019 to submit that he had elaborated his contentions regarding the larger public interest involved in the matter in the aforementioned written submissions. He also contested that the decision of the Apex Court in the matter of Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 was not applicable in the present instance since he was not seeking the copies of Income Tax Return of Third Party. He further submitted that the decision in the matter of Girish Ramchandra Deshpande was contrary to the express provisions of law as held by the Apex Court in the matter of R. Rajagopal wherein the Court clearly mentioned that the areas of privacy included family, marriage, procreation, motherhood, child bearing and education among other matters and that the decision of G R Deshpande was an overruling of a SLP while the R. Rajagopal case was a full-fledged writ petition heard on its merits. In its reply, the Respondent stated that the information sought being related to the personal information of a Third Party was denied u/s 8 (1) (j) of the RTI Act, 2005 since disclosure of information could cause unwarranted invasion to the privacy of the concerned partners. On being queried by the Commission whether the said firm was claiming any IT exemption as per the provisions of the IT Act, 1961, the Respondent submitted that being a partnership firm it was not entitled to claim any exemption under the relevant statute/ rules/ regulations/ guidelines, etc. On being further questioned regarding the existence of PAN registration of the Indian School of Fire and Safety Engineering, the Respondent replied in the affirmative. To a query from the Commission regarding the larger public interest involved in the matter in seeking the details of partnership deed of a Third Party and the statement of the defense with all supporting documents submitted by the ISFSE related to the allegations made against the firm, no satisfactory response was offered by the Appellant.
The Commission was in receipt of a written submission from the Appellant dated 06.12.2019 / 08.12.2019 (79 pages) wherein it was inter alia prayed to direct the Respondent to release the partnership deed submitted by the Indian School of Fire and Safety Engineering to the IT Page 3 of 8 Department at the earliest; order the release of the defense statement & the documents submitted in defense of its stand by the ISFSE with reference to POINT NO. 2 of his request for information in my RTI Application; to direct the JCIT,Range-4 of the IT Department, BBSR, to conduct a fair, impartial & thorough investigation into the matter expeditiously & send him a copy of the investigation results and a copy to the Saheed Nagar Police, BBSR in reference to the Case No. 91/17 lodged against the accused; direct the Commissioner of Police, Bhubaneshwar-
Cuttuck to take cognizance of the matter, lodge an FIR against the ISFSE and order a thorough investigation and to direct the Pr.. CCIT, BBSR to take cognizance of the matter and order enquiry against the ISFSE for the offences of Tax Evasion, Perjury, Forgery, Cheating and other offences committed by the Accused.
The Commission was in receipt of a written submission from the Appellant dated 09.12.2019 (20 pages) wherein it was inter alia prayed to direct the Respondent to release the information, to direct the IT Department, BBSR, to conduct a fair, impartial and thorough investigation into the matter expeditiously and send him a copy of the investigation results and a copy to the Saheed Nagar Police, BBSR in reference to Case No. 91/17 lodged against the Accused; direct the Commissioner of Police, Bhubaneshwar-Cuttack to take cognizance of the matter, lodge an FIR against the ISFSE and order a thorough investigation and to direct the Pr.. CCIT, BBSR to take cognizance of the matter and order enquiry against the ISFSE for the offences of Tax Evasion, Perjury, Forgery, Cheating and other offences committed by the Accused.
The Commission was also in receipt of a supplementary written submission (5 pages) from the Appellant dated 11.12.2019.
The Commission was further in receipt of a written submission from the Respondent (ITO, Exemptions, Cuttack) dated Nil in Appeal No CIC/CCABW/A/2018/106527 wherein it was stated that that the case did not come under the territorial jurisdiction of ITO(Exemption), Cuttack and moreover no other information regarding INDIAN SCHOOL OF FIRE & SAFETY ENGINEERING, BHUBANESWAR was available with them.
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 Page 4 of 8 '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."
Having heard both the parties and on perusal of the available records, the Commission observed that the information sought in the RTI application regarding the registration of Indian School of Fire and Safety Engineering in the PAN directory could have been replied in the affirmative or negative instead of claiming exemption under Section 8 (1) (j) of the RTI Act, 2005. In this context, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Treesha Irish vs. CPIO and Ors., WP (C) No. 6352 of 2006 dated 30.08.2010 wherein it was held as under:
23. There is no provision anywhere in the Act to the effect that information can be refused to be disclosed if no public interest is involved. Of course in a case of personal information, if it has no relationship with any public activity or interest, the information officer has discretion to refuse to disclose the same, if the larger public interest does not justify disclosure of such information. But on the ground of lack of public interest involved alone, the public information officer cannot refuse to disclose the information, without a finding first that the information is personal information having no relationship to any public activity or interest. I am at a loss to understand how disclosure of the valued answer paper would compromise the fairness and impartiality of the selection Page 5 of 8 process. If at all, it would only enhance the fairness and impartiality of the selection process by holding out to the candidates that anybody can ascertain the fairness and impartiality by examining the valued answer papers. In fact, an ideal situation would be to furnish a copy of the answer paper along with the mark lists of the candidates so that they can satisfy themselves that the answer papers have been valued properly and they secured the marks they deserved for the answers written by them. Therefore the reason given in Ext P3, by the 1st respondent, is patently unsustainable."
The Commission referred to the judgment of the Hon'ble Supreme Court of India 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."
A reference can also be made to the judgment of the Hon'ble Supreme Court of India in the matter of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, Civil Appeal No. 22 of 2009 dated 31.08.2017 had held as under:
"5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees. This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc
11) Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and dismiss the application submitted by the 1st respondent under Section 6 of the Act.
12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794, 5 it may not be necessary to re-examine any legal issue urged in this appeal.
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature;
secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No.1."
Page 6 of 8Furthermore, in a recent judgment dated 13.11.2019 in Civil Appeal No. 10044 OF 2010 with Civil Appeal No. 10045 OF 2010 and Civil Appeal No. 2683 of 2010, the Hon'ble Supreme Court of India, had observed as under:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive."
The Commission also observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
Page 7 of 86. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to disclose the factual position in respect of issuance of PAN to the Indian School of Fire and Safety Engineering to the Appellant within a period of 15 days from the date of receipt of this order as agreed. The Respondent was also advised to endorse a copy of their written submission sent to the Commission to the Appellant, as well. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
The Appeals stand disposed accordingly.
(Bimal Julka) (नबमल जुल्का) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित सत्यापित प्रतत) (K.L. Das) (के .एल.िास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दिनांक / Date: 24.12.2019 Page 8 of 8