Central Information Commission
Room No.296, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama
Place, New Delhi110066
Telefax:01126180532 & 01126107254 websitecic.gov.in
Appeal : No. CIC/LS/A/2010/001044DS
Appellant /Complainant : Sh. Manoj Kumar Saini,
Jaipur
Public Authority : The Chief Commissioner,
Income Tax,
Jaipur (Sh.Amrit Meena, CPIO -
through
Videoconferencing)
Date of Hearing : 03 Jan, 2011
Date of Decision : 24 March, 2011
FACTS
OF THE CASE:
1. Vide his RTI Application dated 15.09.2009, the Applicant
sought information pertaining to income tax returns of
his fatherinlaw for the period 2000 to date along with
the information pertaining to process for initiating tax
evasion petition.
2. The CPIO vide his order dated 06.10.2009 denied
disclosure of information citing the provisions of
Section 8(1)(j) of the RTI Act, 2005 (hereinafter “the
Act”). Information was provided pertaining to the process
of submitting tax evasion petition.
3. The Applicant preferred appeal dated 13.10.2009 before
the FAA who adjudicated upon it vide his order of
06.11.2009 by upholding the order of the CPIO and
dismissing the appeal.
4. The Applicant has come before this Commission in second
appeal. The Appellant made an impassioned plea for
disclosure of information sought by him on the grounds
that he was a young man who is involved in defending
himself in a criminal case against the State of Rajasthan
pertaining to dowry related issues. He emphasized that
the litigation was not a private matter against his
wife / fatherinlaw and therefore, the denial of
information could not be justified on the grounds that
there was no public interest in the matter and that the
issue was purely a personal one. The Appellant stated
that in a welfare state, such as ours, the life and
security of every individual was a matter which involved
the state. Denial of information to him would result in a
prolonged litigation of 10 years and more resulting in
his losing the best years of his life and career.
5. Respondent stated that he had ascertained that Shri Munna
Lal Saini does not file any income tax returns in this
income tax office – Ward 3(1). Appellant stated that with
the issue of PAN card which is a unique number, it will
not be difficult to ascertain in which ward Shri Saini
was filing his returns.
DECISION NOTICE:
6. I have carefully considered the submissions made by the
Appellant with great thrust and also by the Respondents.
7. The conviction and thrust with which the Appellant had
pursued his case and made his submission explaining the
reasons for which he needs the information are plausible.
But, however unfortunate as it may seem, the noise of
motivation behind seeking the information falls upon deaf
ears as far as the Act is concerned. Section 6(2) of the
Act clearly states that the Applicant shall not be
required to give any reason for requesting the
information. Thus, the Act does not aim to judge the
motivation or the reason behind seeking certain
information, as each applicant may have a different line
of reasoning, each one being equally passionate and
emotionally driven.
8. What, in fact, matters is whether certain information
which has been sought can actually be furnished under the
Act. The information has been classified as either public
information or personal information under the Act. There
is no question of doubt whatsoever that every public
information need be furnished upon receiving a request to
that effect. However, in case of personal information,
the Act stands on a different footing, and the present
appeal before us is the best example of that. The
Applicant has to satisfy the legislative intent enshrined
in Sections 8(1)(j) of the Act which mandates the
requirement of “larger public interest” that can justify
the disclosure of such personal information.
9. Section 8(1)(j) of the Act is as follows:
“8. (1) Notwithstanding anything contained in this Act, there shall be
no obligation to give any citizen,–
XXX XXX XXX
XXX XXX XXX
(j) information which relates to personal information the disclosure
of which has no relationship to any public activity or interest, or
which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may
be, is satisfied that the larger public interest justifies the disclosure of
such information:
Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any person.”
10. Now I shall deal with each of the respective
contentions raised by the Appellant in the appeal before
me.
11. The Appellant has contended that the information
pertaining to the Income Tax returns filed by his father
inlaw is an information within the ambit of Proviso to
Section 8(1)(j), i.e. those IT returns cannot be denied
to the Parliament or a State Legislature. Here, we look
towards the enlargement of intent of this proviso by
Hon’ble Sanjiv Khanna J. in his decision dated 30.11.2009
in Writ Petition (Civil) Nos.. 8396/2009, 16907/2006,
4788/2008, 9914/2009, 6085/2008, 7304/2007,
7930/2009 AND 3607 OF 2007, wherein he stated ” The
proviso in the present cases is a guiding factor and not
a substantive provision which overrides Section 8(1)(j)
of the RTI Act. It does not undo or rewrite Section 8(1)
(j) of the RTI Act and does not itself create any new
right. The purpose is only to clarify that while deciding
the question of larger public interest i.e. the question
of balance between ‘ public interest in the form of right
to privacy and ‘public interest in access to information
is to be balanced.” It is now apposite to peruse through
Section 138 of the Income Tax Act, 1961 (43 of 1961),
which is as follows:
“Section 138 – DISCLOSURE OF INFORMATION RESPECTING
ASSESSEES.
(1)
(a) The Board or any other income-tax authority specified by it by a
general or special order in this behalf may furnish or cause to be
furnished to –
(i) Any officer, authority or body performing any functions under any
law relating to the imposition of any tax, duty or cess, or to dealings
in foreign exchange as defined in section 2(d) of the Foreign
Exchange Regulation Act, 1947 (7 of 1947); or
(ii) Such officer, authority or body performing functions under any
other law as the Central Government may, if in its opinion it is
necessary so to do in the public interest, specify by notification in the
Official Gazette in this behalf, any such information received or
obtained by any income-tax authority in the performance of his
functions under this Act as may, in the opinion of the Board or other
income-tax authority, be necessary for the purpose of enabling the
officer, authority or body to perform his or its functions under that
law.
(b) Where a person makes an application to the Chief Commissioner
or Commissioner in the prescribed form for any information
relating to any assessee received or obtained by any income-tax
authority in the performance of his functions under this Act,
the Chief Commissioner or Commissioner may, if he is satisfied
that it is in the public interest so to do, furnish or
cause to be furnished the information asked for and his decision in
this behalf shall be final and shall not be called in question in any
court of law.
(2) Notwithstanding anything contained in sub-section (1) or any
other law for the time being in force, the Central Government may,
having regard to the practices and usages customary or any other
relevant factors, by order notified in the Official Gazette, direct that
no information or document shall be furnished or produced by a
public servant in respect of such matters relating to such class of
assesses or except to such authorities as may be specified in the
order.”
12. The legislative mandate is absolutely clear on the
front that the Income Tax Returns of an assessee are held
by the Chief Commissioner, Income Tax only and such
cannot be accessed by any other body or authority except
when the Chief Commissioner himself is of the opinion
that such returns be furnished to a third party in light
of public interest. In R. K. Jain Vs. Union of India
(1993) 4 SCC 120 it was held that factors to decide the
public interest immunity would include (a) where the
contents of the documents are relied upon, the interests
affected by their disclosure; (b) where the class of
documents is invoked, whether the public interest
immunity for the class is said to protect; (c) the extent
to which the interests referred to have become attenuated
by the passage of time or the occurrence of intervening
events since the matter contained in the documents
themselves came into existence; (d) the seriousness of
the issue in relation to which the production is sought;
(e) the likelihood that production of the documents will
affect the outcome of the case; (f) the likelihood of the
injustice if the documents are not produced……” It was
further stated “The courts would allow the objection if
it finds that the documents relates to the affairs of the
state and its disclosure would be injurious to the public
interest, but on the other hand, if it reaches the
conclusion that the document does not relate to the
affairs of state or that the public interest does not
compel its nondisclosure or that the public interest in
the administration of justice in the particular case
before it overrides all other aspects of public interest,
it will overrule the objection and order disclosure of
the document”. I am inclined to say that the information
sought is not granted immunity from disclosure as class
of information. Protection of disclosure has to be
ensured by balancing the two competing aspects of public
interest i.e. when disclosure would cause injury or
unwarranted invasion of privacy and on the other hand if
nondisclosure would throttle the administration of
justice.
13. It brings me to the second contention of the
Appellant which revolves around the concept of “larger
public interest”. According to the Appellant, the “State”
is pursuing a criminal case against him and that since
“State” has decided to prosecute him because of legal
fiction created under Section 405 of IPC, automatically a
“larger public interest” is involved in the matter.
Section 405 of the IPC states that “Whoever, being in
any manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts to
his own use that property, or dishonestly uses or
disposes of that property in violation of any direction
of law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied,
which he has made touching the discharge of such trust,
or willfully suffers any other person so to do, commits
‘criminal breach of trust’.” Dowry Cases invariably have
the component of ‘Criminal Breach of Trust’ relating to
misappropriation of property. In case, the State relies
upon the fiction of misappropriation, then the other
party should have a right to know the details of property
reflected in IT Returns which is alleged to be
misappropriated.
14. The mandate of the RTI Act to disclose personal
information under Section 8(1)(j) is even stricter since
it appends the expression “larger” to “public interest”.
Mere public interest will not suffice in the disclosure
of personal information such as the IT Returns of an
assessee unless the Applicant can prove that a “larger”
public interest demands such disclosure. The expression
“larger” cannot be defined or carved into a straight
jacketed formula and neither can it be easily disposed
of. If the Applicant incessantly stresses on the argument
that false dowry cases are a matter of “larger public
interest” and that the information relating to IT returns
of his fatherinlaw be furnished to him, then an equally
challenging rebuttal could be that the Income Tax Act,
which defines the procedure of disclosure of such IT
Returns to him, is a public policy which has been enacted
by the State keeping in mind the larger good of the
society. It is not the case of the Respondents that
objection to disclosure of the documents is taken on the
ground that it belongs to a class of documents which are
protected irrespective of their contents, because there
is no absolute immunity for documents belonging to such
class.
15. In my view, having assessed the factual situation
and the legal reasoning at hand, the correct position of
law is that the right forum for seeking the IT Returns of
an assessee by a third person is either the Chief
Commissioner, Income Tax or the Concerned Court, if the
matter is subjudice. My view is furthered by the fact
that the position after the repealing of Section 137 of
the Income Tax Act, 1961 by Finance Act, 1964 is that the
Court in a subjudice matter can direct the IT
Authorities to furnish the information pertaining to IT
Returns of an assessee for inspection by the Court. Thus,
disclosure will be warranted if such line of action is
followed. There is no absolute ban on disclosure of IT
returns.
16. Since, the present appeal raises important
questions of law; it is our duty to apply the law as it
stands today. In SP Gupta vs. UOI ([1982] 2 SCR 365), a
seven judges bench of the Apex Court held that “the Court
would allow the objection to disclosure if its finds that
the document relates to affairs of State and its
disclosure would be injurious to public interest, but on
the other hand, if it reaches the conclusion that the
document does not relate to the affairs of State or the
public interest does not compel its nondisclosure or
that the public interest in the administration of justice
in a particular case overrides all other aspects of
public interest, it will overrule the objection and order
the disclosure of the documents.” It was further held
that “in balancing the competing interest, it is the duty
of the Court to see that there is the public interest
that harm shall not be done to the nation or public
service by disclosure of the document and there is a
public interest that the administration of justice shall
not be frustrated by withholding the documents which must
be produced if justice is to be done.”
17. In light of the above view taken by the Apex Court,
I am inclined to make an observation in this case. I have
already discussed the settled point of law regarding
public interest but it is in the pursuance of the
principle of that public interest only where we feel that
the information pertaining to net taxable income of an
assessee for the period of year 2000 till date be
furnished by following the Section 10 of the RTI Act to
his Income Tax Returns. We shall distinguish the present
case from the decision of the CIC in the case of Milap
Choraria vs. Central Board of Direct Taxes (Appeal No.
CIC/AT/A/2008/00628) as decided on 15.06.2009 and in the
case of P.R. Gokul vs. Commissioner, Income Tax,
Kottayaam (CIC/AT/A/2007/00405) decided on 15.06.2007.
The Milap Choraria Case (supra) did not deal with the
issue of information pertaining to net taxable income per
se while the Gokul Case (supra) was not centered around
the issue of larger public interest for the purpose of
disclosure of net taxable income, unlike the present
case. In S.P. Gupta case (Supra), Supreme Court stated
“The language of the provision is not a static vehicle of
ideas and as institutional development and democratic
structures gain strength, a more liberal approach may
only be in larger public interest.”
18. We direct the CPIO to furnish the information
pertaining to the net taxable income of Shri Munna Lal
Saini, the fatherinlaw of the Appellant, for the period
of year 2000 till 15.09.2009 (i.e. the date of the
Appellant’s RTI Application) to the Appellant within 10
days.
19. The Appeal is accordingly disposed of.
(Smt. Deepak Sandhu)
Information Commissioner (DS)
Authenticated true copy:
(T. K. Mohapatra)
Dy. Registrar
Copy to:
1. Sh. Manoj Kumar Saini
Plot No. 69, Adarsh Krishna
Nagar,l Kartarpura,
Jaipur302006
2. The Central Public Information Officer
The Chief Commissioner of Income Tax
O/o the Commissioner of Income Tax
Ward 3(1) , Jaipur
3. The Appellate Authority
Addl. Commissioner of Income Tax,
Range.3 Ward 3(1), Jaipur.