Central Information Commission
Amol Ganpat Rackvi vs Chief Commissioner Of Income Tax (Cca) , ... on 8 May, 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.(s):- CIC/CCITM/A/2017/184812-BJ+
CIC/CCITM/A/2018/101109-BJ+
CIC/CCITM/A/2018/144822-BJ
Mr. Amol Ganpat Rackvi
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO
ITO - 25(1)(4), Office of the ITO - 25(1)(4)
Room No. 405, 4th Floor, Pratyakshkar Bhawan, BKC
Bandra (E), Mumbai - 400051
2. CPIO
DCIT - 25(1), Office of the Dy. Commissioner of Income Tax - 25 (1)
Room No. 402, 4th Floor, Pratyakshkar Bhawan
BKC, Bandra (E)
Mumbai - 400051
... ितवादीगण /Respondent
Date of Hearing : 07.05.2019
Date of Decision : 08.05.2019
ORDER
RTI - 1 File No. CIC/CCITM/A/2017/184812-BJ Date of RTI application 13.06.2017 CPIO's response 19.07.2017 Date of the First Appeal 31.07.2017 First Appellate Authority's response 15.09.2017 Date of diarised receipt of Appeal by the Commission 26.12.2017 FACTS:
The Appellant vide his RTI application sought information on 14 points regarding the Tax Levied and recovered from Vinayak A Rackvi HUF for the AY 2010-11 on the basis of his TEP, date on which his TEP was received by the AO from Addl. IT Range 20-3-4 Mumbai, date on Page 1 of 6 which the AO issued notice u/s 147/ 148 to the Assessee and the date on which the Assessee filed reply to the notice, etc. The CPIO, vide its letter dated 19.07.2017 stated that the information sought did not serve any larger public interest which was required only for his individual purpose. Hence the RTI application was rejected. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 15.09.2017 while referring to the decisions of the Commission pertaining to the same Appellant in CIC/AT/A/2007/00317 dated 17.05.2007, CIC/AT/A/2007/00307 dated 31.05.2007 CIC/DS/A/2011/002195/RM dated 28.06.2012 and CIC/RM/A/2012/000929 dated 18.06.2013 stated that on looking at the information provided by the CPIO to the Appellant vide letter dated 11.05.2017 and in the light of the decisions of the Commission, it was clear that what could have been provided was provided by the CPIO who was not required to provide anything beyond broad information of the third party concerned.
RTI - 2 File No. CIC/CCITM/A/2018/101109-BJ Date of RTI application 31.07.2017 CPIO's response 01.09.2017 Date of the First Appeal 11.09.2017 First Appellate Authority's response 28.09.2017 Date of diarised receipt of Appeal by the Commission 04.01.2018 FACTS:
The Appellant vide his RTI application sought information on 04 points regarding TEP of December, 2006 with DGIT (Inv) followed up with the ITO, Ward 19 (3) (4), Mumbai who had passed assessment order for M/s Sandhya Enterprises, details of the proceedings initiated u/s 271 against M/s Sandhya Enterprises of Shri Sanjay Punamia, amount so far collected from the Assessing Officer and Tax Recovery officer from Shri Sanjay Punamia, a partner of M/s Sandhya Enterprises with Mr. Sushil Mehta, out of Rs. 8,77,77,420/- plus interest thereon, etc. The CPIO, vide its letter dated 01.09.2017 provided a point wise response to the Appellant. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 28.09.2017, while referring to the decisions of the Commission pertaining to the same Appellant in CIC/AT/A/2007/00317 dated 17.05.2007, CIC/AT/A/2007/00307 dated 31.05.2007 CIC/DS/A/2011/002195/RM dated 28.06.2012 and CIC/RM/A/2012/000929 dated 18.06.2013 stated that on looking at the information provided by the CPIO to the Appellant vide letter dated 11.05.2017 and in the light of the decisions of the Commission, it was clear that what could have been provided was provided by the CPIO who was not required to provide anything beyond broad information of the third party concerned.
RTI - 3 File No. CIC/CCITM/A/2018/144822-BJ Date of RTI application 27.12.2017 CPIO's response 01.01.2018 Date of the First Appeal 22.02.2018 First Appellate Authority's response 13.04.2018 Date of diarised receipt of Appeal by the Commission 17.07.2018 Page 2 of 6 FACTS The Appellant vide his RTI application sought information on 12 points regarding the Tax Levied and recovered from Vinayak A Rackvi HUF for the AY 2006-07 on the basis of his TEP, date on which the AO received the information, date on which the AO issued notice u/s 147/ 148 to the Assessee and the date on which the Assessee filed reply to the notice, etc. The CPIO, vide its letter dated 01.01.2018 denied disclosure of information u/s 8 (1) (j) of the RTI Act, 2005 on the ground that no larger public interest warranting its disclosure was justified by the Appellant. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated while referring to the decisions of the Commission pertaining to the same Appellant in CIC/AT/A/2007/00317 dated 17.05.2007, CIC/AT/A/2007/00307 dated 31.05.2007 CIC/DS/A/2011/002195/RM dated 28.06.2012 and CIC/RM/A/2012/000929 dated 18.06.2013 stated that the view taken by the CPIO dated 01.03.2018 was in consonance with the decisions of the Commission. Furthermore, while referring to the decisions of the Commission in CIC/AD/A/2013/001326-SA dated 25.06.2014 and CIC/AD/A/2013/001326-SA dated 25.06.2014, it was stated that the Appellant was asking information of various persons including Vinayak R. Rackvi LLP for a decade or so hence the Appeal deserved to be dismissed on ground of repetitiveness too.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Amol Ganpat Rackvi through VC:
Respondent: Mr. Nimit Mehta, ACIT and Mr. Rohitash Meena, CPIO & ITO 25 (1) (4) through VC;
The Appellant reiterated the contents of the RTI application and stated that based on his tax evasion petition, an assessment was carried out against M/s Vinayak A Rackvi HUF and M/s Sandhya Enterprises and process of tax recovery was initiated. Hence it proved that prima-facie there was merit in his TEP and that expeditious measures ought to have been taken by the Respondent Public Authority for expediting the recovery of taxes for the benefit of the public exchequer. Thus it was submitted that the RTI applications filed by him were devoid of surmises and conjectures and that the issues raised were in the larger public interest. In its reply, the Respondent reiterated the reply of the CPIO / FAA and admitted that based on the tax evasion petitions they had initiated the assessments against the entities mentioned in the RTI application and assessment orders for tax recovery had also been issued. In a specific case of M/s Sandhya Enterprises the Respondent had admitted that an amount of Rs. 8,77,77,420 (approx) was to be collected from the Third Party therein. However, it was submitted that the Appellant was resorting to misuse of RTI mechanism by filing multiple applications on similar matters seeking information relating to the income tax returns of Third Parties which was exempted from disclosure and devoid of any larger public interest. On being queried by the Commission regarding verification of the TEP leading to the initiation of process of the recovery of taxes from M/s Vinayak A Rackvi HUF and M/s Sandhya Enterprises, the Respondent replied in the affirmative.
The Commission was in receipt of a written submission from the Appellant dated 01.05.2019 (Appeal No. CIC/CCITM/A/2017/184812-BJ) wherein it was stated that the CPIO in order to hide the mistakes committed by his predecessors rejected his application without application of Page 3 of 6 mind. The FAA also upheld the decision of the CPIO. Thus, it was stated that neither the CPIO/ FAA took cognizance of the fact that information sought under points iv to xii were neither repeated as argued by the FAA nor were exempted from disclosure u/s 8 (1) (j) of the RTI Act, 2005. While referring to the decisions of the Commission in CIC/A/A/2009/000431 dated 05.08.2009 and CIC/A/A/2009/000431 vs the same ITO, Ward 20 (3) (4) dated 05.11.2009, the Appellant submitted that his purpose was to help the IT Department to recover tax arrears from the evader who had properties and still had to receive dues for the sale of properties in Bhayandar. Thus, the Appellant prayed to define the term "Broad Information" and to decide if the CPIO gave him the "Broad Information" exhaustively during the last 5 years, direct the CPIO to give information on points iv to xii and impose penalty on the CPIO/ FAA.
The Commission was in receipt of a written submission from the Appellant dated 27.04.2019 (Appeal No. CIC/CCITM/A/2018/101109-BJ) wherein while re-iterating the chronological sequence of the replies provided in the matter, it was stated that the information sought had a public interest to expedite recovery of revenue arrears and to protect lost revenue due to non- imposition of penalty u/s 271 for concealment of income hence it was prayed to define the term "Broad Information" and to decide if the CPIO gave him the "Broad Information" exhaustively during the last 5 years, direct the CPIO to give information on points v to viii and impose penalty on the CPIO/ FAA.
The Commission was in receipt of a written submission from the Appellant dated 28.04.2019 (Appeal No. CIC/CCITM/A/2018/144822-BJ) wherein it was stated that neither the CPIO/ FAA took cognizance of the fact that information sought under points iv to xii were neither repeated as argued by the FAA nor were exempted from disclosure u/s 8 (1) (j) of the RTI Act, 2005. While referring to the decisions of the Commission in CIC/A/A/2009/000431 dated 05.08.2009 and CIC/A/A/2009/000431 vs the same ITO, Ward 20 (3) (4) dated 05.11.2009, the Appellant submitted that his purpose was to help the IT Department to recover tax arrears from the evader who had properties and still had to receive dues for the sale of properties in Bhayandar. Thus, the Appellant prayed to define the term "Broad Information" and to decide if the CPIO gave him the "Broad Information" exhaustively during the last 5 years, direct the CPIO to give information on points iv to xii and impose penalty on the CPIO/ FAA.
Having heard both the parties and on perusal of the available records, the Commission observed that several pertinent issues having an impact on the larger public interest were raised by the Appellant during the hearing which require thorough examination. As submitted during the hearing, it was the contention of the Appellant that based on his TEP, the process for recovery of taxes from the entities mentioned in the RTI application was initiated which was also acknowledged by the Respondent. The Commission made reference to the decision of the Hon'ble High Court of Bombay in the matter of Union of India v. Vishwas Bhamburkar, W.P.(C) 3660/2012 dated 13.09.2013 wherein the Court had in a matter where inquiry was ordered by the Commission observed as under:
"6............It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has Page 4 of 6 been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act."
With regard to disclosure of information in TEP matters, the Commission referred to its decision in Shri Virag R. Dhulia v. Income Tax Department, Kolkata in CIC/LS/A/2009/001179 dated 18.02.2010 wherein it was 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:
"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.Page 5 of 6
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 and considering the substantive issues raised by the Appellant the veracity of which was confirmed by the Respondent, it is evident that these Appeals required a much more deeper and sincere examination rather than the casual approach in which they had been dealt with. The Commission therefore instructs the Pr. CIT to depute an officer of appropriate seniority to examine all the three Appeals with due diligence and intimate the updated status to the Appellant within a period of 30 days from the date of receipt of this order in accordance with the provisions of the RTI Act, 2005.
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: 08.05.2019
Copy to:-
1. Mrs. Suchi Smita Palai, Pr. CIT(25), 2nd Floor, Kautilya Bhawan, G Block, BKC, Bandra (E), Mumbai - 400051 Page 6 of 6