Central Information Commission
Commodore Lokesh K Batra Retd vs Director General Of Income Tax ... on 13 June, 2023
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/DGITE/A/2021/609321
Commodore Lokesh K. Batra (Retd.) ......अपीलकता /Appellant
VERSUS
बनाम
The CPIO,
ACIT Exemption, Office of the
Commissioner of Income-tax
(Exemption), RTI Cell, E-2
Block,26 Floor, Pratyaksh Kar
Bhawan, Civic Centre, J.L.N.
Marg, New Delhi- 110002. .... ितवादीगण /Respondent
Date of Hearing : 05/04/2023
Date of Decision : 07/06/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 28/08/2020
CPIO replied on : 29/08/2020 & 19/10/2020
First appeal filed on : 15/10/2020
First Appellate Authority order : 24/12/2020
2nd Appeal dated : 13/03/2021
1
Information sought:
The Appellant filed an RTI application dated 28.08.2020 seeking the following information:
"Find attacked image-copy of : DIN & Order No. M3A/EXM/S/80G2019-20 11026893525(1), Dated 27.03.2020 (as downloaded from the Web).
(a) Provide Certified copy of the above Referred Order for Approval dated 27.03.2020, as and if available, in the RECORD of this Public Authority.
(b) Provide list of documents mandatory for approval for CIT (EXEMPTION) DELHI.
(c) Provide Date of Application for PAN submitted and Date of Allotment of PAN No: AAETP3993P."
The CPIO & Income Tax Officer (Hq.)(Exemption)-I, New Delhi transferred the RTI Application to the CPIO, O/o the Commissioner of Income-tax (Exemptions), New Delhi on 29.08.2020 under Section 6(3) of the RTI Act for taking further necessary action.
Being dissatisfied with the non-receipt of any reply or information thereafter, the appellant filed a First Appeal dated 15.10.2020 stating that the CPIO has not provided any reply despite a lapse of 49 days.
Subsequent to which, the CPIO furnished a reply to the appellant on 19.10.2020 stating as under:
"In this connection, this is to inform that the information sought is personal information in nature which is not related to any public activity or interest and which would cause unwarranted invasion of the privacy of the individual. Hence, information sought is hereby rejected by virtue of 8 (i)(j) of the RTI Act, 2005".
Further, PM CARES fund is completely financed by donations received from individuals/organizations/CSRs/ Foreign individuals / foreign organizations / PSUs and not at-all financed by the appropriate government and administered by the Private individuals as trustees, which is a compulsory condition to invoke section 2(h) of the RTI Act, 2005 and therefore, PM CARES fund cannot be considered as a "Public Authority".
2Therefore, the information as sought by the applicant cannot be provided as PM CARES Fund doesn't fall within the purview of the RTI Act, 2005."
Against the said reply, the Appellant filed another First Appeal on 08.11.2020 stating as under:
"(a) The learned CPIO has erred in his understanding of RTI Act, 2005. Just to mention few observations on his response: 'Public Sectors' are very much under RTI Act and they do provide information related to CSR. Even Private Companies are required to declare CSR details to Ministry of Corporate Affairs (MCA) under MCA Act, 2013, and also in their annual audit reports. Further, the administered of PM Cares Fund is not in hands of Private individuals as trustees but by the by Hon'ble PM and Home Minister and Finance Minister as trustees. More over Section 8(j) of the Act, relates to personal information and not to a 'Public Charitable Trust'.
Furthermore, MCA vide its 'Office Memorandum' dated 28.03.2020, has categorially stated that : "The Government of India has set up thr Prime Minister's Citizen Assistance and Relief in Emergency Situation Fund' (PM CARES Fund) xxxx .
(b) Surprisingly; CPIO gone at any length to justify "PM Cares Fund" is not under RTI Act, 2005 - instead providing information from this Public Authority. Namely 'CIT (Exemption).
(c) It is to be noted that the Information requested is Generated / Created in this Public Authority (PA) and thus belong to this PA only. This information is bound to be available in the 'RECORD' of this PA. The "RECORD" is defined in RTI Act, 2005 as :-
"Section 2(i) Defines "Record" :
(i) "record" includes--
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document;
(c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
(d) any other material produced by a computer or any other device;"3
(d) The Learned CPIO failed to see that the information requested by me in my RTI request at Queries '(a)' and '(c)', are concerning to "Information already available in Public Domain".
(e) My RTI Query '(b)' is simply seeking:-
Quote :
"(b) Provide list of documents mandatory for approval for CIT (EXEMPTION) DELHI."
(f) Going by learned CPIO response - "PM CARES Fund" is 'Non- Governmental Setup/entity' (say NGO). The Portal also mentions "PM CARES Fund" has been registered as a 'Public Charitable Trust'.
(g) However, said 'Non-Governmental Setup / entity' (say NGO), has been provided with many government services /facilities. To quote few: its operating from the complex of PMO, provision of GOV.IN, the administration is also handled by Government Officials etc. - in other words at the cost of Tax-Payers money. All these concerns generate a Huge Public Interest.
6. It is reiterated that the Information requested is Generated / Created in this Public Authority (PA) and thus belong to this PA only. This information is bound to be available in the 'RECORD' of this PA. The "RECORD" is well defined in RTI Act, 2005."
FAA's order dated 24.12.2020, upheld the reply of CPIO as under:
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal stating inter alia as under:4
"(a) There has been undue delay by the CPIO in responding to my RTI Application dated 28.08.2020 and similarly, the Hon'ble FAA has taken much over Two Months in disposing of my RTI Appeal.
(b) The grounds for Appal /Arguments narrated in my subsequent two submissions dated 08.11.2020 and 17.12.2020 respectively to Hon'ble FAA, still stand valid.
(c) It is reiterated that the Information requested is Generated / Created in this Public Authority (PA) and thus belong to this PA only. This information is bound to be available in the 'RECORD' of this PA. The "RECORD" is well defined in RTI Act, 2005."
(d). In my understanding, "IT EXEMPTION CERTIFICATE' of a 'Public Charitable Trust' ought to have been in Public Domain'.
(e) Now even PM Cares Funds 'Trust Deed', including 'Registration Certificate' - has been placed in Public Domain on PM Cares Portal."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present in person.
Respondent: Zoheb Hossain, Sr. Standing Counsel; Sanjeev Menon, Jr. Standing Counsel along with Advocate Vivek present in person.
The Appellant invited the attention of the bench to the written submissions and supporting documents filed by him on 02.04.2023. Details of the same are being reproduced here for clarity and emphasis of the Appellant's arguments during the hearing:
"1. SUPPORTING DOCUMENTS RELIED UPON :
A. PM-CARES Fund, Related Information from GOI Websites B. Order of FAA & Commissioner of Income Tax (Exemption), New Delhi DT. 24-12-2020. And 02 RTIs Documents till FAA Order 20-01- 2021.
C. PM- Cares Fund - Glimpses of RTIs filed in Indian Missions Abroad. D. 'How Government Machinery was used for PM-Cares Expenditure. E. HON'BLE MR. JUSTICE S. RAVINDRA BHAT, Judgment dated May 23, 2018 in Delhi HC Case : LPA No. 231 of 2016 NOTE : This Judgment is in context of Hon'ble Justice's 'Analysis and Reasoning' from Para 10 onward is exemplary. And in specific on Section 2(h)(d) of the RTI Act.5
2. About PM-Cares Fund:
Quote : (From PMO website link https://www.pmcares.gov.in/en) "Keeping in mind the need for having a dedicated fund with the primary objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic, and to provide relief to the affected, a public charitable trust under the name of 'Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)' has been set up. PM CARES Fund has been registered as a Public Charitable Trust. The trust deed of PM CARES Fund has been registered under the Registration Act, 1908 at New Delhi on 27th March, 2020.
"The fund consists entirely of voluntary contributions from individuals/organizations and does not get any budgetary support. The fund will be utilised in meeting the objectives as stated above. Donations to PM CARES Fund would qualify for 80G benefits for 100% exemption under the Income Tax Act, 1961. Donations to PM CARES Fund will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013.
PM CARES Fund has also got exemption under the FCRA and a separate account for receiving foreign donations has been opened. This enables PM CARES Fund to accept donations and contributions from individuals and organizations based in foreign countries"
Unquote:
IN OTHER WORDS :
3. PM CARES Fund is a 'Public Charitable Trust' of private nature (akin to NGO).
REALITY CHECK:
4. The setting up of the PM CARES Fund was notified to the public on 28th March 2020 by the 'Ministry of Corporate Affairs' (MOCA) mentioning:
"The Government of India has set up the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund."6
5. MOCA's said notification clearly reveals that PM CARES Fund is a Government Fund under the control of GOI.
6. PSUs come under the RTI Act - hence any donations from PSUs funds including CSR would come under the RTI Act.
7. All communications related to "PM-Cares Fund' are being sent on letterhead of 'Prime Minister's Office'.
8. Commissioner of Income Tax (Exemption), New Delhi & FAA, in its Order on December 24, 2020 on RTI Appeal filed by Commodore Lokesh K Batra (Retd.) Says:
Quote :
"After careful consideration of the matter and in view of the legal opinion of the standing counsel in respect of applicability of RTI Act on PM CARES Fund, it is observed that though 'PM CARES FUND' has been registered under the Registration Act, 1908 and being a body owned by, controlled by and established by the Government of India.
6. The RTI(s) responses reveal that PM-Cares Fund is indeed funded directly or indirectly through public expenditure?
7. Entire Government Machinery, resources that include manpower has been/ being used for 'not only obtaining funds from India and abroad - but also for spending funds from PM-Cares Fund.
ALLOTMENT OF GOV.IN
8. On 08.12.2020, in his Order on an RTI Appeal - DDG, NIC reiterated: "Domain pmcares.gov.in was allotted to Hon'ble Prime Minister's office (Apex body).
9. Earlier, the CPIO, NIC, in an RTI response had stated:
Quote :
The Pmcares.gov.in has been given to Hon'ble Prime Minister's office (Apex body) with the compliance of "Guidelines for allocation of registration at the third level under .GOV.In domain zone dates 23/10/2019" by Internet Governance Division, Ministry of electronics and Information Technology.
Unquote :
10. Screenshot from NIC response DT. 09-10-2020 7
11. On 28.12.2020, replying to another RTI the CPIO, NIC stated that on 27 March 2020, NIC had received request from the 'Apex Body', namely the Hon'ble Prime Minister's Office (PMO), for registration of 'PM CARES FUND PORTAL', as GOV.IN domain. And on the same the day that is 27.03.2020, the request was considered and decision conveyed to the Apex Body', namely the Hon'ble Prime Minister's Office (PMO).
12. My Take on NIC's Responses :
"How can a 'Public Charitable Trust' that is of private in nature (akin to NGO), is equated with Apex body- just because it is located in premises of PMO ?"
13. Careful perusal of 44 page document named "PM-CARES Fund, Related Information from GOI Websites" that requests/appeals for contribution to PM Cares funds were made at all levels - irrespective of position in the government one held.
14. On 28 March, after Hon'ble Prime Minister announced the setting up of the PM CARES Fund - donations poured in from every quarter.
15. The Hon'ble PM during his Video conference with the Heads of Indian Missions held on March 30, 2020 - had advised to Heads of Missions to suitably publicize the newly-established 'PM-CARES Fund' to mobilize donations from abroad.
MEA used closed channel of communication for contribution to PM-Cares Fund
16. RTIs also revealed that MEA on March 31, 2020 had also sent communication to various Heads of Missions / Posts by a closed channel of communication, which is not in Public Domain.
17. FACT-Check : It took nearly 30 RTIs in 'Indian Missions abroad' to learn how Government resources and manpower used seeking contribution from abroad (foreign funding).
The Factual Position:
20. The resources of nearly 175 Indian Missions / Posts were used in publicizing/ arranging 'foreign funding' for PM-Cares Fund.
21. The Government records and RTI responses clearly reveal that :
(a) Government of India, is in Control of 'PM Cares Fund'. In this context;
Hon'ble Mr. Justice S. RAVINDRA BHAT's Judgment dated May 23, 2018 in Delhi 8 HC Case : LPA No. 231 of 2016 is exemplary. And in specific - analyses on Section 2(h)(d) of the RTI Act.
(b) The PM Cares fund is indeed directly or indirectly funded through public expenditure/ Entire Government Machinery, resources that include manpower has been / being used for 'not only for obtaining donations' from India and abroad - but also for spending funds from PM-Cares Fund.
22. The above arguments made with evidence(s) qualify the PM-Cares Fund as a Public Authority under RTI Act, 2005."
The Counsel for the Respondent also relied on the arguments stated in their written submissions filed prior to the hearing stating as under:
"1. The information sought for in relation to the PMCARES fund which is a trust, having applied for an exemption u/s 80G(S)(vi) is not maintainable for the following reasons:
2. That there is a statutory bar contained in Section 138(1)(b) of the Income Tax Act wherein the special provisions governing disclosure of "any information relating to any assessee received or obtained by any income tax authority in the performance of his functions under this Act" and the statute provides that the discretion as to whether such information should be disclosed in public interest or not is that of the officers named in the said provision namely the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner.
Additionally, there is a further bar which states that his decision will be final and shall not be called into question in any court of law. Wherever a statute provides for such a restriction, the Courts have consistently held that the issue which is in the exclusive domain of the authority specified in the statute, the same issue cannot therefore be open to examination by another statutory authority under another legislation being the RTI Act 2005 herein. In other words, the principle that a special law would override a general law would be squarely applicable herein for the reason that Income Tax Act though prior in time continues to be the special law in force for disclosure of information relating to any assessee and therefore the Commission could not have passed any direction whatsoever due to lack of jurisdiction in this regard.
3. In this regard, decision of a Full Bench of the Commission in Rakesh Kumar Gupta v. ITAT (2007) SCC Online CIC 3153, decided on 18th September, 2007 dealing with the issue of applicability of special law to the exclusion of the general law is relevant. The Commission has relied upon the Hon'ble Apex Court's decision in "Chandra Prakash Tiwari v. Shakuntala Shukla-AIR 2002 SC 2322".
9xxx
4. Without prejudice to the above contention the information sought cannot be provided by virtue of section 8(1)(j) of the RTI Act as well as the Judgment of the Hon'ble Supreme Court in Girish Ramchandra Deshpande v. Central Information Commr., (2013) 1 SCC 212 wherein it was held as follows:-
"13. The details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under clause () 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."
Reliance is further placed on the Judgment of the Full Bench the Ld. CIC in Milap Choraria v. Central Board of Direct Taxes, 2009 SCC OnLine CIC 7391 wherein it was held as follows:-
"15. From the above discussion, it would appear that the Income Tax Returns have been rightly held to be 'personal information exempted from disclosure under clause (j) of section 8(1) of RTI Act by the CPIO and the Appellate Authority; and the appellant herein has not been able to establish that a larger public interest would be served by disclosure of this information."
5. The analogous principles would apply to applications made seeking exemption under the Income Tax Act as well.
6. It is well settled that judicial orders must follow a consistent reasoning and therefore if other exemption applications and their decisions were rejected on the ground of section 8(1)(j), there is no reason whatsoever as to why the same principle should not governed the requests for disclosure of information in the present case. As held by the Hon'ble Supreme Court in Chandrashekar v. LAO, (2012) 1 SCC 390 at Para 41, "Consistency in judicial determination is of utmost importance."
7. Moreover, the information sought from the CPIO in this case relates to a third party i.e. PMCARES which is registered Trust and therefore an order cannot be passed in favour of the appellant, without complying with the requirement 10 under sub-section (4) of section 19 of the RTI Act which requires that the third party with respect to whom information is sought must be given an opportunity of being heard.
8. It is well settled that income tax return of a third person are personal information which stands exempted from disclosure and if income tax returns are exempted from disclosure being personal, the same principle would pro tanto apply to the information/documents sought by the appellant in the present case relating to exemption under Section 80G of the Income Tax Act, 1961.
9. That in another case, the First Appellate Authority u/s 19 of the RTI Act, had passed a similar order holding that the PMCARES Fund is not a 'public authority' u/s 2(h) of the RTI Act and does not fall within the purview of the RTI Act. This Hon'ble Tribunal had held vide order dated 27.04.2022 in CIC/DGITE/A/2020/682444 that Section 2(h) has been unnecessarily dragged in the matter relating to PMCARES Fund. The Income Tax Department challenged the said order before the Hon'ble Delhi High Court vide W.P. (C) 10193/2022 titled CPIO vs. Girish Mittal, and the Hon'ble Delhi High Court vide order dated 07.07.2022, was pleased to issue notice and stay the said order dated 27.04.2022 passed by the CIC.
10. In a similar case relating to another Trust i.e. the Shri Ram Janmabhoomi Teerth Kshetra Trust, the Hon'ble Delhi High Court in W.P. (C) 340/2023, by way of an order dated 12.01.2023, was pleased to issue notice and stay the impugned order passed by the CIC therein."
Decision:
The Commission observes from a perusal of the facts on record that the subject matter of the instant RTI Application as well as the issue for determination herein is squarely covered by the decision of a coordinate bench issued in a series of cases (one of the recent references being File Nos.CIC/PMOIN/A/2020/683666 CIC/PMOIN/A/2020/683673 decided on 17.06.2022) filed with respect to RTI Applications seeking information on various aspects of the PM Cares Fund. The relevant decision of 17.06.2022 states as under:
"Perusal of records submitted by the parties reveals that the prime issue to be decided in this case is whether the PM Cares Fund falls within the ambit of the RTI Act or not. This issue has been dealt with previously by this Bench in various 11 cases including in Second Appeals no. CIC/PMOIN/C/2020/678341 and CIC/PMOIN/A/2020/683578 dated 02.03.2021, which had been decided on the following lines:
"The information sought in the above two cases pertains to a body, viz. the PM Cares Fund. A public interest litigation is pending before the Delhi High Court to decide whether the said organization falls within the ambit of the RTI Act, 2005. Hence at this stage, the queries raised relate to an organization which has not been declared as a public authority under Section 2(h) of the RTI Act, 2005. Thus, no infirmity is found with the replies furnished by the Respondent and no interference is warranted in the above two cases, at this stage."
Similar issues have been previously heard and adjudicated by this Commission as Second Appeals CIC/PMOIN/C/2020/672248 and CIC/PMOIN/A/2020/686431 decided on 14.02.2022; CIC/PMOIN/A/2020/675244 decided on 04.03.2022; CIC/PMOIN/A/2020/676225 and CIC/PMOIN/A/2020/683597 dated 29.03.2022, CIC/PMOIN/A/2020/676277 and CIC/PMOIN/A/2020/679575 dated 11.04.2022. The ratio of all of the above- mentioned decisions is applicable to the facts of these two appeals which deal with the same subject matter. No further adjudication is warranted in this matter at this stage, in view of the fact that the substantive issue is under adjudication before the Delhi High Court.
Similarly, it is pertinent to note that a decision of this bench vide File No. CIC/DGITE/A/2020/682444 dated 27.04.2022 relating to the same subject of the PM Cares Fund has been stayed by the Hon'ble Delhi High Court in W.P. (C) 10193/2022 on 07.07.2022.
Having observed as above, the Commission is not in a position to proceed further in the instant matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) 12 Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 13