Central Information Commission
Dheeraj Lal Harilal Andharia vs Chief Commissioner Of Income Tax (Cca) , ... on 10 June, 2019
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.:- CIC/CCITA/A/2018/104409-BJ
Mr. Dheeraj Lal Harilal Andharia
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Dy. Commissioner of Income Tax
Central Circle - 2(4), Office of the Deputy Commissioner of Income Tax
Room No. A - 304, Aaykar Bhawan, Ashram Road
Ahmedabad - 380009
... ितवादीगण /Respondent
Date of Hearing : 10.06.2019
Date of Decision : 10.06.2019
Date of RTI application 19.09.2017
CPIO's response 10.10.2017
Date of the First Appeal 24.10.2017
First Appellate Authority's response 08.11.2017
Date of diarised receipt of Appeal by the Commission 19.01.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points in respect of the cash transactions carried out by well known builder M/s JP Iscon Group, whose main office is situated in Ahmedabad, Gujarat and Branch Offices in Vadodara, Porbandar, Surat, Rajkot, Bhavnagar, etc. The CPIO, vide its letter dated 10.10.2017 informed that their organization fell under Section 24 of the RTI Act, 2005 which specifically provides that the provisions of the RTI Act stipulates furnishing of information sought for shall not apply to Intelligence and Security Organizations specified in Second Schedule. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 08.11.2017, upheld the CPIO's response and disposed off the Appeal.Page 1 of 5
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Dheeraj Lal Harilal Andharia through VC;
Respondent: Mr. J. K. Parikh, DCIT, Central Circle 2 (4) & CPIO through VC;
The Appellant reiterated the contents of the RTI application and stated that the information sought regarding action taken on the misuse of Black Money in the transactions by the said group had not been revealed, so far. In its reply, the Respondent while reiterating the reply of the CPIO / FAA as also its written submissions stated that the matter was under investigation. The Commission was also in receipt of a written submission from the Respondent dated 31.05.2019, wherein it was submitted that the information sought by the Applicant fell u/s 24 of the RTI Act, 2005 which specifically provides that the provisions of the RTI Act stipulating furnishing of information sought for shall not apply to Intelligence and Security Organizations specified in the Second Schedule. Furthermore, the Government of India, by Gazette Notification No. 155 dated 27.03.2008, had amended Schedule II of the Act thereby including the "Director General of Income Tax (Investigation)" in the list of exempted Organizations (Sr. No. 16). Since the office of the ACIT, Central Circle - 2(4), Ahmedabad functions under the administrative control of the Director General of Income Tax (Investigation), Ahmedabad, it is exempted under the provisions of the RTI Act subject to the exemption stated in the said Section. Copies of Gazette Notification No. 155 dated 27.03.2008 and Amended Schedule II of the Act were enclosed for ready reference."
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 '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."Page 2 of 5
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."
The Commission also observed that the DGIT (Inv) was included in the list of organization exempted from the purview of the RTI Act, 2005 as per Section 24 r/w Second Schedule of the RTI Act, 2005. Furthermore, the Hon'ble High Court of Delhi in a similar matter in Pr. DIT (Inv) (1) vs. Ashwani Kumar, W.P.(C) 11591/2017 dated 22.12.2017 stayed the decision of the Commission wherein a direction was issued to the Pr. DIT (Inv) (1) to inform the status of the Petition/Complaint dated 12.02.2016 addressed to PMO, within a period of 30 days from the date of receipt of this order. In the said matter, the Hon'ble High Court had also directed the Department to file an affidavit unequivocally stating that the complaint in question is a matter being investigated by the DGIT (Inv.) and not any other office of the IT Authority. Moreover, the Commission also observed that in similar such matters where information was sought from organizations exempted from the purview of the RTI Act, 2005 as per Section 24 r/w Second Schedule of the RTI Act, the Hon'ble High Courts had inter alia in several decisions held as under:
1. The Hon'ble High Court of Delhi in the matter of CPIO, Directorate of Enforcement vs. Mr. Bimal Kumar Bhattacharya WP (C) No. 345/ 2018 dated 19.02.2018 held:
"6. Plainly, the impugned order cannot be sustained as it is contrary to the expressed language of Section 24(1) of the Act. Section 24(1) of the Act expressly excludes intelligence and security organizations specified in the Second Schedule of the Act from the purview of the Act. Admittedly, the Directorate of Enforcement is included in the Second Schedule to the Act and, thus, cannot be called upon to disclose information under the provisions of the Act. The only exception carved out from the exclusionary Page 3 of 5 clause of Section 24(1) of the Act relates to information pertaining to allegations of corruption and human rights violation. Undisputedly, the information sought for by the petitioner cannot be categorized as such information.
7. The aforesaid question has also been considered by a Coordinate Bench of this Court in CPIO Intelligence Bureau v. Sanjiv Chaturvedi : 242 (2017) DLT 542, wherein this Court held that an organisation specified in the Second Schedule of the Act was excluded from the purview of the Act.
8. In view of the above, the petition and the pending application are allowed and the impugned order is set aside. However, it is clarified that this would not preclude the respondent from instituting any proceedings that he may be advised against M/s Thomas Cook (India) Limited, if so, entitled in law."
2. The Hon'ble High Court of Punjab and Haryana in its decision in Palwinder Sondhi v.
Central Information Commission and Ors. WO (C) No. 13211 of 2010 dated 28.07.2010 had held as under:
"Be that as it may, in the context of information sought, I find no fault with the reasons given in the impugned order for not supplying the information as the provisions of Section 24(1) of the Act clearly provide that nothing contained in the Act shall apply to the DRI, it being an organization established by the Central Government. Surely the information sought does not relate to corruption and human right violations as is evident from the nature of information sought. The order under the circumstances does not suffer from arbitrariness."
The Commission observed that essentially it was a TEP matter wherein the Appellant was interested to know the broad outcome of the decision taken. In this context, the Commission referred to 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 whereafter 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."
While relying on the aforementioned decision of the Commission in the matter of Ved Prakash Doda, the Commission in Mohd Naeem Ahmed vs. CPIO, ITO, CRU, New Delhi and CPIO, ITO, Ward 56 (1), New Delhi in CIC/CC/A/2015/004382/BS/10949 dated 29.07.2016 held as under:
Page 4 of 5"In the matter at hand investigation/assessment is in progress. The CPIO/ITO Ward 56(1) should disclose the broad outcome of the TEP to the appellant as soon as the assessment is completed."
The aforementioned decision was upheld by the Hon'ble High Court of Delhi in the matter of Mohd. Naeem Ahmed vs. Director of Income Tax and Ors, WP (C) 1112/2018 dated 27.03.2019. The relevant extracts of the order are mentioned hereunder:
"3. Mr. Bharat Bhushan Bhatia, learned counsel appearing for the petitioner, during his arguments stated that he would be satisfied if the petitioner is informed the ultimate outcome of the investigation / assessment. It goes without saying that in terms of the direction of the CIC, the CPIO / ITO of the Ward concerned is / are required to disclose the broad outcome of the TEP to the petitioner herein. There is no reason to disbelieve that they shall not disclose the same after the investigation / assessment is over.
4. Mr. Zoheb Hossain, learned Senior Standing Counsel appearing for the respondents assures the Court that the said procedure shall be followed in this case. Taking the statement on record, I am of the view no further orders are required to be passed in this writ petition"
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, it was noted that in the matter at hand, the investigation was in progress. However, the broad outcome of the investigation should be disclosed to the Appellant as soon as the investigation is completed.
The Appeal stands 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: 10.06.2019
Page 5 of 5