Central Information Commission
Dr. Rohit Jain vs Central Board Of Direct Taxes on 21 December, 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/CBODT/A/2017/609364-BJ +
CIC/CBODT/A/2018/622702-BJ
Dr. Rohit Jain
....अपीलकता
/Appellant
VERSUS
बनाम
1. CPIO
Ministry of Finance, Department of Revenue
Investigation IV Branch, Central Board of Direct Taxes
Ara Centre, E-2, Jhandewalan Extension
New Delhi - 110055
2. CPIO
ITO (CRU)
Office of the ITO (Inv.) CRU
Pr. Director of Income Tax (Investigation) - 1
ARA Centre, 2nd Floor, Jhandewalan Extension
New Delhi - 110005
3. CPIO,
Office of the Pr. Commissioner of Income Tax
Pratykash Kar Bhawan, E 2 Block
Civic Centre, Dr. S P Mukherjee, Minto Road
New Delhi - 110002
4. CPIO
ITO, Ward - 35(3)
Office of the ITO, E 2 Block
Pratyaksh Kar Bhawan, Civic Centre
New Delhi - 110002
... ितवादीगण /Respondent
Date of Hearing : 21.12.2018
Date of Decision : 21.12.2018
ORDER
RTI 1: CIC/CBODT/A/2017/609364-BJ Page 1 of 6 Date of RTI application 30.10.2017 CPIO's response 27.11.2017 Date of the First Appeal 27.11.2017 First Appellate Authority's response 14.12.2017 Date of diarised receipt of Appeal by the Commission Nil FACTS:
The Appellant vide his RTI application sought information regarding the time frame/ time limit for investigation of a TEP by an IT Officer, certified copy of the standard operating procedure followed for investigation of a Tax Evasion petition as an ITO.
The CPIO, vide its letter dated 27.11.2017 provided a point wise response to the Appellant. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 14.12.2017 re-iterated the response of the CPIO.
RTI 2: CIC/CBODT/A/2018/622702-BJ Date of RTI application Nil CPIO's response 28.02.2018 Date of the First Appeal 09.04.2018 First Appellate Authority's response 16.05.2018 Date of diarised receipt of Appeal by the Commission Nil FACTS:
The Appellant vide his RTI application sought information on 03 points regarding the time frame for disposal of category Z TEP, copy of page of register indicating the date of receipt of TEP with unique no. (as mentioned in the RTI application) in category Z and the date of forwarding the TEP to the Additional/Joint Director of Income Tax (Investigation) for investigation etc. The CPIO, vide letter dated 28.02.2018 transferred the application along with enclosures to the CPIO, O/o the Pr. CIT, Delhi-23 under Section 6(3) of the RTI Act, 2005 for necessary action. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 16.05.2018 directed the CPIO & ITO Ward 35(3) to provide the copies of orders passed by his office in respect of the Appellant's e-RTI applications without any delay as the same was not received by him earlier.
HEARING:
Page 2 of 6Facts emerging during the hearing:
The following were present:
Appellant: Dr. Rohit Jain through VC;
Respondent: Ms. Bhavana Solanki, ITO, Mr. Ravi Kant, Inspector and Mr. Jameson Vaiphei, CPIO / ITO (Inv.);
The Appellant reiterated the contents of his RTI application and stated that the information sought by him was wilfully and malafidely denied. It was explained that on account of marital dispute, criminal cases were under adjudication in various Courts and that the information sought was vital to contest in these matters. The Commission was in receipt of a written submission from the Respondent (ITO, Ward 35 (3), New Delhi) dated 14/16.12.2018 wherein it was requested to adjourn the hearing by 30 days due to ongoing time barring income tax assessment proceedings. The Commission referred to para 7 of the notice of hearing which stipulated that in default of the appearance on the time and date mentioned in the notice of hearing, the case shall be heard and decided in the absence of the party and that there would be no adjournment and review. During the hearing, the Respondent (Investigation Wing) stated that after registration of the TEP, it was transferred to the O/o Pr. CIT (23) for further necessary action. The representative of Pr. CIT (23) present submitted that the TEP in the case of Shri R. K. Gupta was forwarded to ITO Ward 35 (3) under whose jurisdictional authority the matter was dealt with. Several other RTIs received on similar matters were also transferred to Pr. CIT (12) New Delhi. The Respondent Ward 35 (3) explained that the matter was under investigation and that necessary explanation from the Assessee had been called for and that the next date of hearing had been fixed for 09.01.2019. It was articulated that the matter was under investigation as per extant guidelines of the IT Department.
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 Page 3 of 6 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."
In the context of disclosing the broad outcome of the Tax Evasion Peition filed by the Appellant, the Commission referred to the judgment of the Hon'ble High Court of Delhi in the matter of Kamal Bhasin v. Radha Krishna Mathur and Ors., W.P.(C) 7218/2016 dated 01.11.2017 wherein it was held as under:
"6. In the present case, the petitioner stands as a relator party as he is also one of the complainants. The petitioner is not seeking any personal information regarding respondent No. 3, but merely seeks to know the outcome of the complaint made by him and other such complaints. The PFC Officers Association had pointed out certain conduct which according to them was irregular and warranted disciplinary action; thus, they would be certainly entitled to know as to how their complaints have been treated and the results thereof.
7. Section 8 (1) (j) of the Act reads as under:- "8. Exemption from disclosure of information.-(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- xxxxxxxxx (j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the Central Page 4 of 6 Information Commission appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information."
8. It is apparent from the plain reading of the aforesaid clause that in order to claim exemption from disclosure of any information, the essential conditions that must be satisfied are: (i) that it is personal information the disclosure of which has no relationship to any public activity or interest; or (b) that it would cause unwarranted invasion of the privacy of the individual. However, even if the aforesaid conditions are satisfied, the Central Public Information Officer or the State Public Information Officer or the Appellate Authority may disclose the information if they are satisfied that the larger public interest justifies the disclosure of such information.
9. The proviso of Section 8 (1) of the Act is also important and reads as under: "Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."
10. By virtue of the aforesaid proviso to Section 8(1) of the Act, it is enacted that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. In the present case, it was doubtful whether information as to the fate of the complaints can be considered as personal information that has no relationship with public interest or public activity. The activity of the Central Vigilance Department includes investigation and taking action in cases of corruption. Secondly, the complaint related to the allegations of misconduct and how these complaints were treated were clearly matter of public interest.
11 In the circumstances, this Court directs the respondent to disclose to the petitioner as to what action had been taken pursuant to his complaint and other similar complaints made against the then CMD. The petitioner would not be entitled to any notings and deliberations of the Group of Officers or Disciplinary Authority but only information as to what action was taken in relation to the complaints in question."
The Commission in the decision of Shri Virag R. Dhulia v. Income Tax Department, Kolkata in CIC/LS/A/2009/001179 dated 18.02.2010 had held as under:
"It is to be noted that investigation into a TEP cannot be allowed to go on ad-infinitum and that it should be concluded in a reasonable time frame where after the broad outcome thereof needs to be communicated to the appellant i.e. whether the allegations made in the TEP are fully true, partially true or untrue. No further information needs to be disclosed at this stage."
This Commission referred to the order dated 18/06/2013 (File No. CIC/RM/A/2012/000926 Sh. Ved Prakash Doda v/s ITO) wherein it was held as under:
"6. It has been the stand of the Commission that in respect of a tax evasion petition, once the investigation is completed, the appellant should be informed the broad results of the investigation, without disclosing any details. The appellant has a right to know as to whether the information provided by him was found to be true or false."Page 5 of 6
DECISION:
In the light of the facts available on record and the submissions made by both the parties and in the light of the decisions cited above, the Commission instructs the Respondent (ITO Ward 35 (3), New Delhi) to disclose the broad outcome of the investigation to the Appellant as soon as the investigation is completed.
The Appeals stand 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: 21.12.2018
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