Central Information Commission
Mr.Sanjeev Jindal vs Government Of Nct Of Delhi on 10 December, 2012
In the Central Information Commission
at
New Delhi
File No: CIC/AD/A/2012/001781
Date of Hearing : December 6, 2012
Date of Decision : December 10, 2012
Parties:
Applicant
Shri Sanjeev Jindal
A2/153, 1st Floor
Paschim Vihar
New Delhi 110 063
The Applicant was present along with Shri Jaswant Singh, Advocate during the hearing
Respondents
Department of Trade and Taxes
O/o VATO, Ward No.65
Govt. of NCT of Delhi
Vyapar Bhavan
IP Estate
New Delhi 110 002
Represented by : Ms.Daisy L.R, AVATO
Third Party
Pradyuman Overseas Limited
D273, PhaseI
Ashok Vihar
Delhi 110 052
Represented by : Shri Praveen Aggarwal
(Arrived late after the hearing is over)
Information Commissioner : Mrs. Annapurna Dixit
___________________________________________________________________
In the Central Information Commission
at
New Delhi
File No: CIC/AD/A/2012/001781
ORDER
Background
1. The matter was last heard on 7.9.12. The order is reproduced below:
Order dt.7.9.12 This matter was last heard on 23.07.2012 when the Commission had issued following direction:
"During the hearing, the Appellant's counsel argued that the document (audit report) sought by him is a public document which is required to be submitted under the given law. He also claimed that he has already seen this document in the office of the public authority since the same is not kept in a secret manner. He further submitted that the firm to whom the said audit report belongs has filed a recovery suit in the High Court against the him (Appellant).
3. It is noted from the First Appellate Authority's Order that the PIO had followed the process of law pertaining to third party information and that the third party ( M/s Pradyuman Overseas Ltd.) had objected in writing that information should not be provided to the Appellant. The PIO had therefore denied the information to the Appellant u/s8(1)(d) and 8(1)(e) of the RTI Act. According to the FAA the PIO had also argued that there is a bar on providing such information u/s 98 of the DVAT Act.
4. The Appellant contended during the hearing that Section 8(1)(d) does not apply in this case since the disclosure of information will not harm the competitive position of the third party because the information sought is not of commercial confidence. He also stated that 8(1)(e) also does not apply because the audit report is filed by the dealer under statutory requirement and not pursuant to a fiduciary relationship with the Trades and Taxes Department.
5. The Appellant further stated that he requires the information to defend himself in a suit filed by the M/s Pradyuman Overseas Limited which cannot be considered as misuse of information. The Appellant reiterated his position that the said audit report is not being treated as a confidential document even by the Public Authority and has therefore not been maintained in a secret manner and that he has already perused the audit report . All that he wants now is a copy of the report that is attested.
6. While I have noted from the Appellant's submission that the audit report is apparently not as confidential as the PIO has made it out to be since the Appellant has already perused it, after careful consideration of the PIO's submission that the third party has denied its disclosure to the Appellant u/s8(1)(d) of the RTI Act, I am of the opinion that the third party should be given a fair opportunity to place its arguments before the Commission before I take a decision on whether or not to disclose the audit report to the Appellant.
7. I therefore direct all the parties concerned, including the PIO, Directorate of Trade and Taxes; the Appellant and a representative of the Third Party ie. Pradyuman Overseas Limited to appear before the Commission for a hearing on the matter on 7th September, 2012 at 3.30p.m. along with their written submissions. The PIO, Directorate of Trade and Taxes to ensure that a copy of this Order is sent to the Third Party.
8. The case is adjourned."
Decision
2. Since the third party viz., M/s Pradyuman Overseas Limited has not come for hearing today and has also not submitted any written objection to the disclosure of the information sought by the Appellant, it is assumed that it has (third party) no objection in allowing the disclosure of information to the Appellant. In any case, as already recorded by the Commission at para 6 of in its said order, the information sought by the Appellant here does not appear to be confidential since the Appellant has already inspected the said documents.
3. In view of the above, it is directed that the PIO should provide this information to the Appellant within 2 weeks of receipt of this order.
2. The Commission received a letter dt.9.10.12 from the PIO stating that the notice for the hearing held on 7.9.12 was found on her table at 5.00 pm on 7.9.12 because of which neither she nor the third party could attend the hearing and requested for another opportunity of hearing to be granted to hear her and the third party.
3. The Commission, therefore, decided to have another hearing on 6.12.12 and accordingly notices were issued to the concerned parties.
Decision
4. During the hearing, the Respondent stated that the Appellant vide his RTI Application dt.9.2.11 had sought copy of the Audit report (Balance Sheet and Profit and Loss Account along with schedules and annexures) for the year 200910 submitted by M/s.Pradyuman Overseas ltd on 17.1.11 u/s 49 of DVAT Act, 2004. He added that the third party vide his letter dt.28.12.11 had objected to disclose any information of their company to any one which was communicated to the Appellant vide letter dt.30.12.11. He further added that there is bar on providing such information u/s98 of the DVAT Act and this provision being provided under the specific Act is to be followed.
5. The Appellant during the hearing submitted that the submission of the report is a statutory requirement and the role of the Department in the audit report ends once the assessment of tax is done to which the Respondent also agreed. He added that the audit report submitted is a public document and exemptions of any sort can be invoked in denying the information.
6. The Third Party who came late submitted that the Appellant used to purchase goods on credit from the Third Party and in order to discharge his liability visàvis, the Appellant issued a cheque bearing No.216457 dt.31.8.10 drawn on Union Bank of India, Ashok Vihar, New Delhi for a sum of Rs.43,33,342.48p in favour of the present Thirty Party. But the said cheque got dishonoured and since the Appellant despite repeated demands did not pay anything, the present Third Party had to file a Civil Suit for Recovery against him in the High Court of Delhi. That the said suit for recovery is still pending against the Appellant there. Hence the Appellant is adversary to the Third Party and can go to any length to cause harm or wrongful loss to the Third Party. Appellant may use the information received about the Third Party to damage and harm the interest of the Third Party. He added that the returns, audited reports and balance sheets that are submitted in the Revenue departments by a company (Third Party) contains every kind of information and details which on falling into the hands of unscrupulous persons like the Appellant would prove fatal to the present Third Party. Some of the sensitive information and details of the present Third Party which are mentioned in the revenue documents, submitted in statutory compliances are: (i) Assets & Liabilities, (ii) Profits and losses, (iii) details of debtors and creditors; customers & suppliers; MODVAT paid and received, (iv) turnover of the company, its bank balances and cash in hand etc. (v) sales & purchase (vi) investments & deposits etc. The information sought by the Appellant are gross unwarranted invasion of privacy of the Third Party and is fully exempted u/s 8(1)(j) of the RTI Act, 2005.
The information & details submitted by the Third Party in statutory compliances are not only commercial confidence and trade secrets but also its disclosure would definitely harm the competitive position of the Third party, especially when it reaches the hands of the Appellant and hence the disclosure of the applied information is exempted u/s 8(1)(d) of the RTI Act, 2005.
The information & details sought by the Appellant are available to the Department of Sales Tax and VAT in fiduciary relationship, as contemplated by Section 8(1)(e) of the RTI Act, 2005.
The Third Party also submitted that Sec.98 was inserted into DVAT Act vide DVAT(Second Amendment0 Act 2005; No.F.14(29)/LA/2005/333 dt.16.11.2005 w.e.f 16.11.2005, specifically bars/prohibit disclosure of the information being sought for by the Appellant. The Section 98 of the DVAT Act is reproduced below:
(i) All particulars contained in any statement made, return furnished or accounts or documents produced in accordance with this Act, or in any record of evidence given in the course of any proceedings under this Act, other than proceedings before a criminal court, shall, save as provided in subsection (3) of this section, be treated as confidential, and not withstanding anything contained in the Indian Evidence Act, 1872(1 of 1872), no court shall, save as aforesaid, be entitled to require any servant of the Government to produce, before it any such statement, return, account, document or record or any part thereof, or to give evidence before it in respect thereof. (2) If, save as provided in subsection (3) of this section, any servant of the Government discloses any of the particulars referred to in subsection (i) of this section, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to a fine.
(3) Nothing in this section shall apply to the disclosure (a) of any of the particulars referred to in subsection (1) of this Section for the purposes of
investigation or prosecution under this Act or the Indian Penal Code 1860 (45 of 18600 or any other enactment for the time being in force;
(b) of such facts to an officer of the Central Government or any State Government as may be necessary for verification of such facts or for the purposes of enabling that Government to levy or realize any tax imposed by it;
(c) of any such particulars where such disclosure is occasioned by the lawful employment under this Act of any process for the service of any notice or the recovery of any demand;
(d) of any such particulars to a civil court in any suit or proceeding to which the Government or any Value Added Tax Authority is a party and which relates to any matter arising out of any proceeding under this Act or under any other law for the time being in force authorizing any Value Added Tax authority to exercise any powers thereunder;
(e) of any such particulars by any public servant where the disclosure is occasioned by the lawful exercise by him of his powers under the Indian Stamp Act, 1899 (2 of 1899) to impound an insufficiently stamped document;
(f) of any such particulars to the Reserve Bank of India as are required by that bank to enable it to compile financial statistics of international investment and balance of payment;
(g) of any such particulars to any officer appointed by the Comptroller and Auditor General of India for purpose of audit of tax receipts or refunds'
(h) of any such particulars relevant to any inquiry into a charge of misconduct in connection with incometax proceedings against a legal practitioner or chartered accountant, to the authority empowered to take disciplinary action against members of the profession to which he belongs;
(i) of such particulars to the officers of the Central Government or any State Government for such other purposes, as the Government may, by general or special order, direct; or
(j) of any information relating to a class of dealers or class of transactions, if in the opinion of the Commissioner it is desirable in the public interest to publish such information.
It was the submission of the Third Party that any disclosure of the returns, reports etc. required to be submitted under the said DVAT Act has been specifically prohibited save as provided in subsection (3). In fact violation of this section has been made a penal offence therein. He further submitted that none of the conditions mentioned in the clauses (a0 to (j) of the said act is prevalent or applicable to the present case in hand and hence of no service to the Appellant.
7. It is known fact that information sought under RTI Act can be denied only under the specific provisions as contained in the Sections 8 and 11 of the RTI Act. After hearing the submissions made by the parties concerned and upon perusal of the submissions of Third party and considering the provisions of law enunciated and relied upon by the Respondent and the Third party, the Commission observes that the Respondent in their arguments have not resorted to any of the exemptions as spelt out in the Section 8 (1) of the RTI Act 2005. The background of litigation pending between the Appellant and the Third Party as detailed by the Third party cannot be justifiable as the only ground for denial of information. The exemptions as relied upon by the Third party are Section 8 (1) (d) and (j) of the RTI Act 2005 but even these grounds fail to justify denial of information since the documents as sought by the Appellant viz. the Audit reports, balance sheet, Profit and Loss account etc. for the F.Y. 200910 cannot be considered secret or confidential documents, nor can the commercial position of any business be harmed by such disclosure. In fact it is well known that such audit reports of some companies are published even in newspapers.
8. The provisions of the RTI Act are stipulated and designed so as to have an overriding effect on any other law, in terms of the Section 22 of the Act. Thus the applicability of the aforementioned provisions of the DVAT Act as relied on by the Third party in their submissions is obviated in this case. Protection is extended in fact to this effect under Section 21 of the Act. The Third party in his submissions has simply sought exemption from disclosure under Section 8(1)(j) of the RTI Act without explaining the applicability of the said Section to his case and to such documents which are in normal course of business open to public scrutiny. Therefore, the arguments put forth by the Third party and the Respondents by way of their submissions do not hold merit. Also as already stated above, the litigation background of the Appellant with the Third party cannot be the criteria to decide about the supply of information under the RTI Act. Accordingly, the Commission rejects the plea of exemptions as sought to be taken by the Third party and directs the PIO to furnish the required information to the Appellant by or within 15 days of the receipt of this order.
(Annapurna Dixit) Information Commissioner Authenticated true copy (G. Subramanian) Deputy Registrar Cc
1. Shri Sanjeev Jindal A2/153, 1st Floor Paschim Vihar New Delhi 110 063
2. The Public Information Officer Department of Trade and Taxes O/o VATO, Ward No.65 Govt. of NCT of Delhi Vyapar Bhavan IP Estate New Delhi 110 002
3. Pradyuman Overseas Limited D273, PhaseI Ashok Vihar Delhi 110 052
4. Officer in charge, NIC