Central Information Commission
Manoj Kumar Singh vs Director Genral Of Income Tax (Inv.) ... on 19 July, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File No : CIC/DGIIC/A/2023/133866
Manoj Kumar Singh .....अपीलकर्ाग /Appellant
VERSUS
बनाम
PIO,
Dy. Director Of Income
tax(Inv) Aayakar Bhawan,
Sector-2, Panchkula- 134112 ....प्रनर्वािीगण /Respondent
Date of Hearing : 15.07.2024
Date of Decision : 18.07.2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 01.02.2023
CPIO replied on : 20.02.2023
First appeal filed on : 04.05.2023
First Appellate Authority's order : 15.05.2023
2nd Appeal/Complaint dated : 09.08.2023
Information sought:
The Appellant filed an RTI application dated 01.02.2023 seeking the following information:
"Document Identification Number (DIN) w.r.t Panchnamas and other communications issued during the proceedings under Section 132 of the Income Tax Act, 1961 undertaken at the various premises of the Applicant (AAXPS2824H) from 14th October 2020 to 19th October 2020 by Dy Director of Income Tax (HQ), Chandigarh.Page 1 of 9
The Applicant note from the Panchnamas, and other communications issued during the Search conducted at his various premises by the Investigation team were without generating the DIN. It is mentioned in each of the communications that "This communication issues manually without a DIN on account of reasons given in Para 3(ii) of the CBDT Circular No. 19 of 2019 dated 14.08.2019 and with the approval of the Director General of Income Tax (Inv.), NWH, Chandigarh with noting dated 09.10.2020".
For the ready reference few such communications issued during the search proceedings are marked and annexed as Annexure-A (colly).
You are kindly requested to provide me the information on the following:
4.1 Request you please provide the copy of the approval of the Director General of Income Tax (Inv.), NWH, Chandigarh with noting dated 09.10.2020 for issuing the communication(s) during the search proceedings of the Applicant without generating DIN.
4.2 Please inform that whether in compliance with Para 5 of CBDT Circular No. 19 of 2019 dated 14.08.2019, the communications issued during the search proceedings were regularized within 15 working days. The relevant Para 5 of CBDT Circular No. 19 is reiterated below for the ready reference:
The Communication issued manually in the three situations specified in para 3-
(i), (ii) or (iii) above shall have to be regularized within 15 working days of its issuance by- A i. Uploading the manual communication on the System.
ii. Compulsorily generating the DIN on the System.
Communicating the DIN so generated to the Assessee/any other person as per electronically generated pro forma available on the System.
The copy of the CBDT Circular No. 19 of 2019 is annexed and marked as Annexure-B. 4.3 If the answer to the above point i.e., 4.2 is affirmative, then please provide a copy of such regularization.
4.4 Please also provide proof of communicating the DIN so generated to the Applicant (Assessee) as electronically generated pro-forma available on the system."
The CPIO furnished a point-wise reply to the Appellant on 20.02.2023 stating as under:
Page 2 of 9"Point No 1 to 4 : The Second Schedule of the Right to Information Act, 2005, by notification dated 27/28.03.2008 of Ministry of Personnel, Public Grievances and Pension, New Delhi, stipulates that the offices of the Director General of Income Tax Investigation) are exempt from furnishing the information under the Right to Information Act, 2005. The said organization to which the act does not apply is included in Second Schedule of Section 24 of the Right to Information Act, 2005. Thus, this office is exempt to furnish the information under the Right to s Information Act.
Without prejudice to above it is stated that all the communications at the time of search were issued on account of reasons given in Para 3(ii) e of the CBDT Circular No. 19 of 2019 dated 14.08.2019 and with the approval of Director General of Income Tax (Inv) Chandigarh vide noting dated 09.10.2020. The same has duly been regularized within the prescribed time limit which was intimated to the approving authority within 15 days of issuance of communications."
Being dissatisfied, the appellant filed a First Appeal dated 04.05.2023. The FAA vide its order dated 15.05.2023, held as under:-
"On Perusal of the record of the O/o the CPIO, it is noticed that the Deputy Director of Income Tax (Inv-2) cum-CPIO, Chandigarh has passed the order u/s 7(1) of the Right to Information Act, 2005 dated 20.02.2023 which was dispatched to the applicant vide her office letter F.No. DDIT/Inv.- 2/CHD/RTI/2022-23/815 dated 20.02.2022. The copy of the said order is enclosed for your reference."
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Advocate Vijay Kumar Singh, Advocate Piyusha Singh and Advocate Shashwat Singh, representative of the Appellant attended the hearing in person.
Respondent: Shri Sunil Kumar, CPIO-cum-ITO (Inv.), attended the hearing through VC.
The representative of the Appellant stated that the Respondent has not provided the relevant information as sought in the instant RTI Application.Page 3 of 9
The Respondent submitted that their organization is exempt from furnishing the information in terms of the provisions of Section 24 of the Right to Information Act, 2005. Nonetheless, the Appellant vide letter dated 20.02.2023 was informed that all the communications at the time of search were issued on account of reasons given in Para 3(ii) e of the CBDT Circular No. 19 of 2019 dated 14.08.2019 and with the approval of Director General of Income Tax (Inv) Chandigarh vide noting dated 09.10.2020 and the same has duly been regularized within the prescribed time limit which was intimated to the approving authority within 15 days of issuance of communications.
After the conclusion of the hearing, a written submission has been received from the Appellant vide letter dated 16.07.2024, wherein the Commission has been apprised as under:
"1. That pursuant to the search proceedings carried out on the residential and office premises of the Appellant from 14.10.2020 to 19.10.2020, the Appellant had requested the Ld. CPIO as well as the Ld. First Appellate Authority to provide information pertaining to the Document Identification Number ("DIN") with regard to the Panchnamas, Summons, Impounding Order, Seizure note, and other letters/notices ("Communications") issued during the proceedings under Section 132 of the Income Tax Act, 1961 ("Act").
2. The Panchnamas and other communications issued during the search conducted at various premises of the Appellant by the Investigating team were issued without generating DIN which is a mandatory requirement as per Circular No. 19 dated 14.08.2019.
3. All the communications mention that "This communication issues manually without a DIN on account of reasons given in Para 3(ii) of the CBDT Circular No. 19 of 2019 dated 14.08.2019 and with the approval of the Director General of Income Tax (Inv.), NWR, Chandigarh vide noting dated 09.10.2020."
4. As per the mandate of Circular No. 19 of 2019, the communication issued manually as specified in para. 3 shall have to be regularized within 15 working days from its issuance in the following manner:
(i) Uploading the manual communication in the System.
(ii) Compulsorily generating the DIN on the System.
(iii) Communicating the DIN so generated to the Assessee/any other person as per electronically generated pro forma available on the system.
5. That no such communication with the details of DIN has ever been communicated to the Appellant at any point in time or uploaded on the online portal of ITBA. Hence, the Appellant filed an RTI Application dated 01.02.2023 annexing the aforementioned communications.
Page 4 of 96. As the Appellant had not received any response to his RTI Application dated 01.02.2023 within the statutory time period of thirty (30) days, the Appellant filed an Appeal dated 04.05.2023 before the Ld. First Appellate Authority, namely Addl. Director of Income Tax (Inv.), Chandigarh, Aaykar Bhawan, Sector 2, Panchkula - 134112. The said appeal was received by the First Appellate Authority on 08.05.2023.
7. The Ld. First Appellate Authority issued a response to the Appeal dated 04.05.2023. The Ld. Appellate Authority in the response had stated that the Ld. CPIO had already responded to the RTI Application dated 01.02.2023 vide order dated 20.02.2023. Therefore, the appeal before the Ld. First Appellate Authority was dismissed on this ground itself.
8. The Ld. CPIO in its order under Section 7(1) of the Right to Information Act, 2005 dated 20.02.2023 denied the request made by the Appellant and did not provide any information as sought by the Appellant. The Ld. CPIO denied the request on the premise that the Second Schedule of the Right to Information Act, 2005, by notification dated 27/28.03.1008 of the Ministry of Personnel, Public Grievances and Pension, New Delhi, stipulates that the office of Director General of Income Tax (Investigation) is exempt from furnishing the information under the Right to Information Act, 2005. Therefore, the office is exempt from furnishing the information under the Right to Information Act, 2005.
9. The response dated 20.02.2023 is passed by the Ld. CPIO without appreciating the request of the Appellant. It is submitted that the Ld. CPIO has miserably failed to appreciate the mandate of the CBDT Circular 19 of 2019 dated 14.08.2019 and the Ld. CPIO has in a casual manner stated that "the same (communications) have been duly regularized within the prescribed time limit which was intimated to the approving authority within 15 days of issuance of communications." However, the neither the said regularization or the DIN has been communicated to the Appellant in terms of Para. 3 of Circular No. 19 of 2019.
10. The Appellant is further aggrieved from the order under Section 19(1) of the Right to Information Act, 2005 of the First Appellate Authority i.e. the Additional Director of Income Tax (Inv.), Chandigarh as the Ld. First Appellate Authority without appreciating that no information has been provided by the Ld. CPIO, dismissed the Appeal filed by the Appellant.
11.It is submitted that several High Courts have clarified the position on importance and relevance of DIN. It has been held that paragraph 4 of the 2019 Circular, as extracted, hereinabove, decidedly provides that any communication which is not in conformity with paragraph 2 and 3 of the Circular shall be treated as invalid and shall be deemed to have never been issued. It has also been held that circulars issued by the CBDT in exercise of its powers under Section 119 of the Income Tax Act, 1961 are binding on the revenue. It has been further held that the object and purpose of issuance of the 2019 Circular, was to create an audit trail. Therefore, the communications relating to assessments which find mention in paragraph 2 of the 2019 Circular without DIN, can have no standing in law, having regard to the provisions of paragraph 4 of the 2019 Circular.
12.It is submitted that the Appellant/Assessee requires the communication/information pertaining to the issuance of DIN as per CBDT Circular 19 Page 5 of 9 of 2019 at the stage of appeal to be able to aptly defend itself. It is further submitted that in case no regularization has been done, then the said communication loses its sanctity due to implication of CBDT Circular No. 19 of 2019. The Hon'ble Supreme Court in Pradeep Goyal vs. Union of India [2022] 141 taxmann.com 64 (SC) has held that in view of larger public interest and to bring in transparency and accountability which are so vital for efficient governance, it was implemented by the CBDT from 01.10.2019 that every communication will have to have a Document Identification Number.
13.It is submitted that the information sought by the Appellant will not fall under the exception of Section 24, as most of the communications have been issued to the Appellant and there is no confidential office information in such communications. However, even otherwise the department can share information/copy of the relevant page or portion that consists of DIN after regularization of the communications within the prescribed time limit of 15 days.
14. It is submitted that non-providing of information sought which can be used by the Appellant to defend itself is violative of principles of natural justice. It is further submitted that the Appellant has strong reasons to believe that no approval from Director General of Income Tax (Inv.) as mandated by the Circular No. 19 of 2019 has been taken by the investigation Department before conducting the search proceedings and the Ld. CPIO has taken shield of Section 24 of the Right to Information Act, 2005.
15.In view of the above submissions, it is prayed that the appeal filed by the Appellant be allowed and the information sought by the Appellant be provided."
Decision:
Upon examination of the facts of the case, the Commission finds no infirmity in the reply sent by the Respondent. It is well settled position that DGIT (Inv.) is an organization exempted under Section 24 of the RTI Act and therefore, cannot be directed to furnish information under the Act provided that the information pertaining to allegations of corruption and human rights violation. Further the fact of instant case is different from the circumstances of case cited by the Appellant in Pradeep Goyal vs. Union of India [2022] 141 taxmann.com 64 (SC) and ration laid down by the Court are not applicable to the instant case. Moreover, the Respondent has not resorted to blanket denial by resorting to Section 24 and instead he has provided information/response giving due explanation.
Further, the Commission would like to draw the attention of the parties toward the recent judgement passed by the Hon'ble Delhi High Court in the case titled Central Public Information Officer v. Kailash Chandra Moondra, W.P. (C) No. 340/2023 dated 28.02.2024 wherein it was held as under -
Page 6 of 97. Learned Counsel appearing for the Petitioner states that the information pertaining to an assessee cannot be granted under the RTI Act in view of Section 138(1)(b) of the Income Tax Act, 1961. He places reliance upon a Judgment dated 22.01.2024 passed by this Court in W.P.(C) 10193/2022 in the case of "CPIO/Dy. Commissioner of Income Tax HQ Exemption, New Delhi vs. Girish Mittal" wherein this Court has observed as under:
15. Applying the said ratio to the facts of the present case, Section 138 (1)(b) and Section 138 (2) of the IT Act which lays down a specific procedure relating to disclosure of information relating to a third party under the IT Act would override Section 22 of the RTI Act. The information sought for by the Respondent herein is clearly covered by Section 138(1)(b) of the IT Act. The satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is, therefore, necessary before such information can be divulged. That satisfaction cannot be abrogated to any other authority under a general Act for divulging the information sought for.
16. The said judgment has been followed by the Apex Court in Rakesh Kumar Gupta v. Income Tax Appellate Tribunal (ITAT), 2007 SCC OnLine CIC 315.
17. In Chief Information Commr. v. High Court of Gujarat,(2020) 4 SCC 702, when an issue was raised over furnishing of information of certified copies obtained from the High Court of Gujarat by invoking the provisions of the RTI Act, the Apex Court, while resorting to the Gujarat High Court Rules, has observed as under:
"35. The non obstante clause of the RTI Act does not mean an implied repeal of the High Court Rules and orders framed under Article 225 of the Constitution of India; but only has an overriding effect in case of inconsistency. A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non obstante clause, unless there is clear inconsistency between the two legislations. In this regard, we may usefully refer to the judgment of the Supreme Court in R.S. Raghunath v. State of Karnataka [R.S. Raghunath v. State of Karnataka, (1992) 1 SCC 335 : 1992 SCC (L&S) 286] wherein, the Supreme Court held as under : (SCC pp. 356-57, para 38) "38. In Ajoy Kumar Banerjee v. Union of India [Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127 : 1984 SCC (L&S) 355] , Sabyasachi Mukharji, J. (as his Lordship then was) observed thus : (SCC p. 153, para 38)
38. ... As mentioned hereinbefore if the Scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle "generalia specialibus non derogant". The general rule to be followed in case of conflict between the two statutes is that the later abrogates the earlier one. In other words, a prior Page 7 of 9 special law would yield a later general law, if either of the two following conditions is satisfied:
"(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment."
If either of these two conditions is fulfilled, the later law, even though general, would prevail.'" (emphasis supplied)
18. Applying the said analogy to the facts of the present case, Section 138(1)(b) of the IT Act which specifically states that information relating to an assessee can only be supplied subject to the satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be, would prevail over Section 22 of the RTI Act.
19. The issue raised herein has been settled by a Bench of three Member Bench of the CIC which, in the opinion of this Court, is binding on the Bench which has passed the impugned order. A Bench of three Commissioners of the CIC in G.R. Rawal v. Director General of Income Tax (Investigation), 2008 SCC OnLine CIC 1008, while considering the very same issue has observed as under:
"15. Thus, both the Right to Information Act, 2005 and Section 138 of the Income Tax Act, 1961 deal with disclosure of information. While Right to Information Act is a general law concerning the disclosure of information by the public authorities, Section 138 of the Income Tax Act is a special legislation dealing with disclosure of information concerning the assesses. This Commission in "Rakesh Kumar Gupta v. ITAT, decided on 18th September, 2007 decided by a Full Bench, has dealt with the issue of applicability of special law to the exclusion of the general law. The Commission has relied upon the Hon'ble Apex Court's decision in "Chandra Prakash Tiwari v. Shakuntala Shukla -- AIR 2002 SC 2322". The following two paragraphs from the said decision of the Commission are pertinent and quoted below:
37. A special enactment or Rule, therefore, cannot be held to be overridden by a later general enactment or simply because the latter opens up with a nonobstante clause unless there is clear inconsistency between the two legislations -- one which is later in order of time and the other which is a special enactment. This issue came again for consideration before the Hon'ble Apex Court in Chandra Prakash Tiwari v. Shakuntala Shukla -- AIR 2002 SC 2322 and the Hon'ble Supreme Court quoted with approval the Broom's Legal Maxim in reference to two Latin Maxims in the following words: "It is then, an elementary Rule that an earlier Act must give place to a later, if the two cannot be reconciled - lex posterior derogate priori - non est novum ut priores leges ad posteriors trahantur (Emphasis supplied) - and one Act Page 8 of 9 may repeal another by express words or by implication; for it is enough if there be words which by necessary implication repeal it. But repeal by implication is never to be favoured, and must not be imputed to the legislature without necessity, or strong reason, to be shown by the party imputing it. It is only effected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together2; unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal cannot be implied; and special Acts are not repealed by general Acts unless there be some express reference to the previous legislation, or a necessary inconsistency in the two Acts standing together, which prevents the maxim generalia specialibus non derogant (Emphasis supplied) from being applied. For where there are general words in a later Act capable of reasonable application without being extended to subjects specially dealt with by earlier legislation, then, in the absence of an indication of a particular intention to that effect, the presumption is that the general words were not intended to repeal the earlier and special legislation, or to take away a particular privilege of a particular class of persons."
38. In the aforesaid case, the Hon'ble Apex Court also cited with approval an earlier decision in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey
- MANU/SC/0202/1966, in which it was indicated that an earlier special law cannot be held to have been abrogated by mere implication. That being so, the argument regarding implied repeal has to be rejected for both the reasons set out above."
Propriety demanded that the CIC ought to have followed the opinion of the larger Bench, which is binding on it...."
In view of the applicability of the above ratio, no intervention of the Commission is deemed necessary in this case.
The appeal is disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Page 9 of 9 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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