CENTRAL INFORMATION COMMISSION
Appeal No. CIC/LS/A/2010/000377 dated 12.4.2010
Right to Information Act 2005 - Section 19
Appellant - Shri Rakesh Kumar Gupta
Respondent - Income Tax Department
Decision announced: 21.6.2010
Facts:
By an application of 26.11.08 Shri Rakesh Kumar Gupta of Shalimar
Bagh, Ring Road, New Delhi applied to the PIO, Office of Chief Commissioner of
Income Tax, Central Delhi seeking the following information:
"1-A. Kindly provide the copies of letter written by juniors officers
to CCIT (concerned with above assessee) on the complaint
of Applicant (Mr. Rakesh Kumar Gupta) about non payment
of reward and helping the tax evaders by way of not taking
timely action.
B. Kindly also provide the inspection of files / records dealing
with correspondence with the junior authorities of CCIT officers as
mentioned in point 1(A) and the complaint of applicant (Mr. Rakesh Kumar
Gupta) about non payment of reward and helping the tax evaders by way
of not taking timely action.
C. Kindly provide the file number for point 1(B) and whose
possession / department, these files are kept.
D. Kindly provide copy of file noting of the file referred in point
number 1(b).
E. Kindly provide copies of documents requested at the time of
inspection of the file referred in point number 1(b).
2-A Kindly provide the copies of letter written by CCIT's
(concerned with above assessee - including other officers
related to assessee listed above) to CBDT on the complaint
of Applicant (Mr. Rakesh Kumar Gupta) about non-payment
of reward and helping the tax evaders by way of not taking
timely action.
B. Kindly also provide the inspection of files/records dealing
with correspondence with the superior / CBDT / junior authorities (of CCIT
officers as mentioned in Point 2(A) and the complaint of Applicant (Mr.
Rakesh Kumar Gupta) about non payment of reward and helping the tax
evaders by way of not taking timely actions.
C. Kindly provide the file number for point 2(B) and whose
possession / department, these files are kept.
1
D. Kindly provide copy of file noting of the file referred in point
number 2(b).
E. Kindly provide copies of documents requested at the time of
inspection of the file referred in point number 2(b)."
To this Shri Rakesh Kumar Gupta received a response dated 24.12.09
from CPIO, Shri V. K. Chopra, Asstt. Commissioner of Income Tax, HQ informing
him, as follows:
a) "Para 3 is of general nature and is a matter of record.
b) As regards Para 1(A) & 1(C), seven folders are maintained
in the office of CCIT (Central) New Delhi. These files are in the custody of
ACIT / ITO (Hqrs.), O/o the CCIT (Central) New Delhi.
c) As regards Para 1(B), as per the decision of the CIC, Club
Building, Old JNU Campus, New Delhi in the case of Shri Rakesh Kumar
Gupta vs. Public Information Officer, C/o Commissioner of Income Tax
(Central)-2, New Delhi, you are requested to attend office of the
undersigned for inspection of files / records on 15.1.2010 at 11.30 a.m.
and copies of the relevant documents / file notings as asked for in Para
1(B) & 1(D) will be provided on payment of statutory fee.
d) As regards Para 2(A), 2(B), 2(C) & 2(D), the reply to these
questions has already been given while answering question to Para 1(A),
1(B), 1(C) & 1(D). All the letters received from junior officers and written
to senior officers, if any, are part and parcel of the above folders and
copies of them will be provided after inspection of records on 15.1.10 on
paying statutory fees.
e) As regards Para 1(E) & 2(E), the same are not applicable at
present."
Shri Rakesh Kumar Gupta then went in appeal before the Chief
Commissioner of Income Tax, Central Delhi, Jhandewalan Extension, New Delhi
pleading as follows:
1. "The appellant's appeals are identical.
2. The information was being sought under preamble to the RTI
Act and CPIO has to prove that public interest in denial is stronger.
3. Relied upon order of the CIC in the case of Shri R. K. Gupta
vs. Addl. DIT (Vigilance) copy of which has been annexed alongwith
submissions.
4. The CIC order dated 14.12.09 has been accepted by the
department.
5. CIC has held in the order dated 30.10.09 in the case of Shri
R. K. Gupta vs. Addl. Director of Income Tax (Vigilance) that Section 8(1)
2
(h) of the RTI Act would only apply if the investigation is under way and
the disclosure of information would impede the process of investigation.
No explanation has been given by the CPIO which would show that
process of investigation would be impeded."
In his order of 24.12.09, the Chief Commissioner of Income Tax ordered
as follows:
"1. The contention of the respondent that the order of the CIC
dated 14.12.09 become final and the department has accepted
the same is not correct as the department has filed writ petition
before the Hon'ble Delhi High Court against the order of the
CIC on 281.10 which has been fixed for hearing along with the
writ petitions of the other third parties M/s Escorts Ltd. & Ors.
on 15.3.10. Hence, the matter has become sub-judiced.
2. The appellant too have pointed out that the matter is sub judiced
and is pending for adjudication before Hon'ble Delhi High Court
and, therefore, no information should be provided. I agree with
the aforesaid plea of the appellants and hold that no
information should be provided to the respondent till the matter
is decided by the Hon'ble Delhi High Court.
3. The issues raised by the appellant regarding the merits of the
case for not providing information to the respondent, would be
decided only after the receipt of the order of the Hon'ble Delhi
High Court."
The CPIO's arguments before Appellate Authority in this case were as
follows:
"It was informed by the CPIO in the order dated 15.1.10 that the
appellants have objected to the inspection of documents as
required by him on the following grounds:
(i) The correspondence with senior officers regarding
the reward claim by Shri Rakesh Kumar Gupta in the case of Escorts Ltd.
in a hierarchical relationship is in nature of a fiduciary entrustment and it
should not ordinarily be disclosed as the same is exempt within the
meaning of Sec. 8(1) (e).
(ii) The confidential information forwarded to the
higher authorities should remain confidential, in public interest. Section
8(2) of the Act stipulates that notwithstanding anything in Official Secrets
Act, 1923 or any of the exemptions permissible under Section 8(1), a
public authority may allow access to information, if the public interest in
disclosure outweighs the harm to the protected interests. The information
sought by the respondent is for his own interest (of obtaining the reward
3
from the department on the basis of assessments completed) and the
information used therein was already with the department.
(iii) The CIC's decision No. 640 dated 14.12.10 on
similar request of the respondent to provide inspection of files / records is
not accepted by the department and is being challenged through Writ
Petition before Hon'ble High Court, Delhi by the ACIT, Central Circle-3,
New Delhi.
(iv) In respect of Dr. Naresh Trehan, the Hon'ble High
Court Delhi has passed interim order to stay the impugned order dated
22.12.09 vide Order dated WP© No. 85 of 2010 dated 8.1.10.
(v) The CPIO's decision communicated vide F. No.
CCIT/Central/2009-10/1828 dated 11.1.2010 is against the public interest.
Disclosing and providing inspection of the records in the light of pending
Writ Petition before Hon'ble High Court, Delhi is highly objectionable."
Shri Rakesh Kumar Gupta's prayer in his second appeal before us is:
'1. Issue direction to give the information.
2. Penalize under section 20 for delay in providing
information and rejecting inspection on false pretext.
3. Direct Public Authority to maintained records as
directed under section 4 of the RTI Act, 2005.
4. Any additional payer as Respected Commissioner found
deem fit like compensation etc."
The appeal was heard on 4.6.2010. The following are present:
Appellant
Shri Rakesh K. Gupta
Respondents
Shri Sunil Chopra, Chief Commissioner of IT Central
Shri Arun S. Bhatnagar, CIT(C-II), New Delhi.
Shri P. Ray Chaudhuri, Advocate
Shri V. M. Mahidhar, ACIT, CC-3, New Delhi.
Shri I. P. Bansal, Judicial Member, ITAT
Shri V S. Dhanda, ITO HQ (Exemptions)
Shri Sunil Chopra, CCIT submitted that the case is before the High Court
of Delhi and has been stayed. The points in that case are the same, which
amounted to an appeal against the order of the Appellate Authority on the
request of the third party. In response Shri Rakesh Gupta contended that the
case before the High Court, a copy of which is with us, is regarding disclosure of
4
tax returns. The stay in this case is till 21.7.2010. In the present case, however,
Shri Gupta contended that he has not sought tax returns but the action taken on
his request regarding non-payment of reward and helping alleged tax evaders by
not taking timely action. Therefore, what he has sought is the internal
correspondence in the CCIT's Office, which, in his view has resulted in this
consequence. A copy of the decision of this Commission in appeal No.
CIC/LS/A/2009/000647, which has been stayed by the High Court, was also
presented by Chief Commr. of Income Tax. In that decision of 14.12.09, this
Commission has held as follows:
"The Commission concludes that no case has been made showing
that any of the exemption clauses apply to the information sought
by the appellant. The onus to prove that a denial of information was
justified is on the PIO as per Section 19(5) of the RTI Act. Though it
is not necessary, the appellant has also shown that a larger public
interest of increasing public revenue and reducing corruption may
be served by disclosure of the information, which would outweigh
any harm to any protected interest.
The Appeal is allowed.
The PIO is directed to provide the inspection of the records and
also the other information sought by the appellant before 15
January 2009. The Respondent is further directed to send a copy of
this order to the Third parties immediately."
In this case the information sought by appellant Shri Rakesh Gupta was,
as below:
"All records available with the income tax department including
assessment records of all the levels with regard to:
1 1. Escorts Limited AY (1998-99 to 2005-2006)
2 2. Mr. Rajan Nanda AY (1998-99 to 2005-2006)
3 3. Escorts Heart Institute & Research Centre Chandigarh
(Society) AY (2001-2002)
4 4. Escorts Heart Institute & Research Centre Delhi (Society) AY
(1998-99 to 2001-2002)
5 5. Dr. Naresh Trehan AY (1998-99 to 2005-2006)
6 6. Escorts Heart Institute & Research Centre Limited
Chandigarh AY (2000-2001 to 2005-2006)
7 7. Big Apple Clothing (P) Limited AY (1998-99 to 2005-2006)
8 8. AAA Portfolio (P) Limited (1998-99 to 2005-2006)
5
Required:
1 1. Inspection of all records in above respect.
2 2. Kindly provide the copies of documents mentioned at the time
of inspection.
3 3. Kindly provide the officers (from assessing officers to CCIT),
who are the officers to take action on "Tax Evasion Petition"
given by me from 01/08/2008 till date.
In this matter, the CCIT also presented copies of the order of the High
Court of Delhi on various WPs, namely WP( C) No. 202/2010, WP( C) No.
206/2010, WP( C) No. 207/2010, WP( C) No. 214/2010, WP( C) No. 251/2010 in
which by order of 15.3.2010, Hon'ble S. Murlidhar J. has ordered as follows:
"1. Learned Counsel appearing for the Respondent states that
he needs two weeks time to file a reply.
Rejoinder thereto, if any, be filed within two weeks.
Thereafter,
2. List on 21st July, 2010
3. Interim orders to continue"
In the case before us we have also received written arguments by e-mail
from appellant Shri Rakesh Kumar Gupta, in which he has submitted as follows:
1. Nothing is said by the opposite parties the effect on Government
revenue due to delay tactics in providing information, which
should be given to the applicant under Section 4 (1) c & d of RTI
act. (about the action / inaction on Applicant's complaint.) AND
the public interest involved in the case.
2. My case is covered fully Under the Bhagat Singh (better known
as DGIT Vs CIC Delhi High Court decision.) case approved up
to the Supreme Court of India. As per this order denial should
be strictly as per Section 8(1)/9 of RTI Act, 2005. Therefore,
more likely objection raised by the opposite party to deny the
information is Section 8(1) (b) of the RTI Act, 2005.
Basic Rules framed for interpreting the RTI Exemption by the
Delhi High Court in the Bhagat Singh case
(WP(C) No.3114/2007 Date of decision: December 03, 2007
BHAGAT SINGH (Petitioner) Versus CHIEF INFORMATION
COMMISSIONER and ORS. Central Information Commission File
Ref: Appeal No.35/IC (A)/06- F. No.CIC/MA/A/2006/00108 Dated,
the 8th May, 2006) to while applying the exemption clause.
Justice S. Ravindra Bhat, J.
Rule 1: As is reflected in its preambular paragraphs, the enactment
seeks to promote transparency, arrest corruption and to hold
6
the Government and its instrumentalities accountable to the
governed. This spirit of the Act must be borne in mind while
construing the provisions contained therein.
(From Para 12 Page 6 of the order)
Rule 2: Access to information, under Section 3 of the Act, is the
rule and exemptions under Section 8, the exception. Section
8 being a restriction on this fundamental right, must therefore
is to be strictly construed. It should not be interpreted in
manner as to shadow the very right itself.
(From Para 13 Page 6 of the order)
Rule 3: A rights based enactment is akin to a welfare measure, like
the Act, should receive a liberal interpretation. The
contextual background and history of the Act is such that the
exemptions, outlined in Section 8, relieving the
authorities from the obligation to provide information,
constitute restrictions on the exercise of the rights provided
by it. Therefore, such exemption provisions have to be
construed in their terms…
Adopting a different approach would result in narrowing the rights
and approving a judicially mandated class of restriction on the
rights under the Act, which is unwarranted.
(From Para 14 Page 6 of the order)
3. on this argument(stay by the Court) , there is direct High Court
decision that directed that information should be given even after
stay on information giving by the Supreme Court of India. Full
copy of decision is available on CIC website under the heading
High Court decisions. Direct Decision of CIC and the High
Court in favour of Applicant. In The High Court Of Punjab and
Haryana at Chandigarh C.R. No. 1051 of 2001. – Date of
Decision: 29.1.2006. Punjab Public Service Commission.
Versus Rajiv Kumar Goyal.) in favour of applicant. This appeal
is pending with Central Information Commission to decide the
matter.
4. Relevant portion of the decision is
Brief Facts of the case.
Applicant applied inspection and copies of record as per
provisions of Order 11 Rule 14 CPC, was allowed by court.
Public Authority obtains the stay order from Supreme Court of India
on the decision to allow inspection and copies.
When the Applicant applied under the RTI Act, 2005 Public
Authority opposes the same as information is exempted under
Section 8(1) (b) of RTI Act, 2005.
7
Punjab & Haryana High Court allowed the information even after
the stay order of the Supreme Court on disclosure of information as
per provisions of Order 11 Rule 14 CPC
With this, appellant has attached a copy of the order of the High Court of
Punjab & Haryana at Chandigarh in CR No. 1051/2006 dated 21.9.06 – Punjab
Public Service Commission vs. Rajiv Kumar Goyal, in which learned Hemant
Gupta J. has come to the following conclusion.
“A perusal of the order passed by the Hon’ble Supreme Court
would show that the Hon’ble Supreme Court has stayed operation
of the aforesaid orders of this Court permitting inspection but there
is no order of the Hon’ble Supreme Court which prohibits the
Commission to furnish information under the Act. Consequently,
there is no exemption available to the petitioner in terms of Section
8(1) (b) of the Act. In view of the above, I do not find any merit in
the revision petition. Hence the present revision petition is
dismissed. However, it is directed that the information sought by
the plaintiff vide Annexure P.4 except documents at Serial No. 8
thereof, be supplied to the plaintiff in terms of the provisions of the
Act on soliciting the necessary fee in terms of the Act. The amount
of fee shall be communicated to the plaintiff within one month from
today.”DECISION NOTICE
The gist of this case lies in appellant Shri Rakesh Kumar Gupta seeking
information on why his complaint regarding non-payment of reward, when in his
view he has identified tax evaders, has not been acted upon. His argument has
been that what stands stayed by the Hon’ble High Court is not the information
that he has sought. Copy of the Stay which has been issued by High Court of
Delhi in WP( C) No. 2022/2010 – Escorts Heart Institute & Research Centre
vs. Rakesh Kumar Gupta W.P.( C) No. 206/2010 Escorts Heart Institute vs.
R. K. Gupta, W.P.(C ) No. 207/2010 Rajan Nanda vs. Rakesh Kumar Gupta,
W.P.( C) No. 251/2010 Portfolio P. Ltd. & Anr. Vs. Rakesh Kumar Gupta has
indeed been stayed, as quoted by us above. The decision, which is stayed is
that of this Commission in CIC/LS/A/2009/000647 in which the information
sought was, as quoted at length above, inspection of records available with the
Income Tax Department regarding various organizations that are in appeal and8
have received the stay. In that case, by the decision of this Commission of
14.12.09, the PIO had been directed to provide the inspection of these records.In the present case, the only inspection that has been sought is that of files and
records of correspondence among officers dealing with the complaint of Shri
Rakesh Kumar Gupta, appellant. This request then has, therefore, little to do
with the appeal before the Hon’ble Delhi High Court. The order of the Chief
Commissioner of Income Tax in the present case has relied wholly on the Writs
before the High Court, which stayed the order of 14.12.09. In the present case
what has been argued is that correspondence with Senior Officers regarding the
reward claimed by Shri Rakesh Kumar Gupta is part of a hierarchical relationship
and is, therefore, exempt u/s 8(1)(e).On this matter, we have a definitive ruling regarding the application of sec.
8(1)(e) in the decision of Hon’ble Ravindra Bhat, J. in W.P. (Civil) No. 288/2009– Supreme Court of India vs. Subhash Chandra Agrawal. This decision has
also been relied upon in subsequent decisions of the Delhi High Court. In his
judgment in WP(C) 228/2009, CPO Supreme Court of India vs. SC Agrawal &
Anr. Ravindra Bhat J has discussed the concept of fiduciary relationship in
some detail. The HC ruling in the above case is as follows:“54. The petitioners argue that assuming that asset declarations, in
terms of the 1997 constitute “information” under the Act, yet they
cannot be disclosed – or even particulars about whether, and who
made such declarations, cannot be disclosed – as it would entail
breach of a fiduciary duty by the CJI. The petitioners rely on
Section 8 (1) (f) to submit that a public authority is under no
obligation to furnish “information available to a person in his
fiduciary relationship”. The petitioners emphasize that the 1997
Resolution crucially states that:“The declaration made by the Judges or the Chief Justice,
as the case may be, shall be confidential.”The respondent, and interveners, counter the submission and say
that CJI does not stand in the position of a fiduciary to the judges of
the Supreme Court, who occupy high Constitutional office; they
enjoy the same judicial powers, and immunities and that the CJI
cannot exercise any kind of control over them. In these