CENTRAL INFORMATION COMMISSION
Block IV, 5th Floor, Old JNU Campus
New Delhi 110067
Appeal No.CIC/AT/A/2008/00523
Dated February 11, 2009
Name of the Appellant: Pallab Bhattacharya
37, Gobinda Bose Lane
Kolkata-700 025.
Public Authority: Commissioner of Income Tax
Calcutta-XX
54, Rafi Ahmed Kidwai Road
Kolkata-700 013.
Date of Hearing 27.01.2009
Date of Decision 13.02.2009
FACTS
OF THE CASE:
1. The applicant in order to seek information under the Right to
Information Act, 2005 submitted an application before the Central Public
Information Officer (CPIO) of the Public Authority on 31.7.2007. The
information so sought related to a Non-Governmental Organization called
Uttarpara Ashraya located at 14E, Rajmohan Road, P.O. Uttarpara, Dt.
Hooghly. The appellant Shri Pallabh Bhattacharya asked for the following
information:
(i) Income & Expenditure account and Balance
Sheets of the Society
(ii) Summary of expenses and collection for the
years 2000-01, 2001-02 & 2002-03 and for
Financial Years 2000-01, 2001-02 & 2002-
03 submitted by the NGO along with original
application for registration.
(iii) Agreement with premises owner at 14E/5,
Rajmohan Road, P.O. Uttarpara, Dt.
Hooghly submitted by this NGO along with
original application for registration u/s 12AA
and exemption u/s 80G or any time
thereafter for renewal of registration.
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(iv) Rent receipts for use of the space where
the NGO is situated submitted for
registration u/s 12AA and exemption u/s
80G.
(v) Certificates of donors for donation of
Rs.5000/- and above for the Financial Year
2002-03 submitted for registration u/s 12AA
and exemption u/s 80G.
(vi) Returns of the 9th AGM held on 1.5.2005
along with details of Executive Committee
members selected for 3 years from 2005-08
and similar details of 10th AGM.
(vii) Return of the society informing any change
of address during the period 1996 onwards.
(viii) Any other records and/or documents
submitted by the society along with their
original prayer for registration u/s 12AA and
80G.
The applicant submitted that he needed the above information to ensure
transparency and accountability and to safeguard public interest under the frame
of the RTI Act.
2. CPIO received the application on 10.8.2007. Since he was of the view
that the information asked for related to a 3rd party, he, therefore, issued notice
on 14.8.2007 as mandated under Sub-Section 2 of Section 11 of the RTI Act. to
M/s Urttarpara Ahraya The Secretary of the Society, Shri Tarun Dasgupta by a
written communication dated 28.8.2007 objected to the furnishing of such
information on the ground that the disclosure was not in public interest. The
CPIO considered the submissions of the 3rd party and by order dated 18.9.2007
held that such information lies with the Public Authority in fiduciary capacity and
is also private information which, if disclosed, will cause unwarranted invasion of
the privacy of the 3rd party. The disclosure is in his view, therefore, covered by
exemption provided under Section 8(1)(e) and Section 8(1)(j) of the RTI Act.
3. The appellant filed an appeal against the order of the CPIO on 13.10.2007.
The First Appellate Authority observed that the information sought by the
appellant primarily relates to accounts, expenses and collection and certificates
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of donors as submitted along with application for registration under Section 12AA
and exemption u/s 80G of the Income Tax Act and also matters relating to
tenancy. The appellant had sought the information on two categories of facts, i.e.
one that pertains to the society as charitable trust and the other, on its tenancy.
The Appellate Authority noted that —
(i) Appellant had not sought information in respect of the
performance or otherwise of the charitable work of the
society and it appears that the petition is not made with
public interest.
(ii) Allegations relating to tenancy are purely in personal
sphere of the society and in view of the objections raised
by the society as 3rd party cannot be conveyed in terms of
Section 11 and Section 8(1) (j) of the RTI Act.
The First Appellate Authority also held that the applicant has not been able
to satisfy him that the request is in public interest, let alone larger public interest.
The Appellate Authority, therefore, confirmed the order of the CPIO and rejected
the appeal by order dated 13.11.2007.
4. The appellant filed his 2nd appeal before this Commission on 13th
February, 2008. In his appeal petition, he submitted that the First Appellate
Authority has rejected his appeal without going through his submissions. The
appellant also submitted that the third party NGO could not have become a
registered NGO under Section 12AA of the Income Tax Act and that it was not
eligible to get exemption under Section 80G of the Income Tax Act and that
the appellant is seeking information under the RTI Act in order to get copies of
the forged documents on the basis of which the registration and exemption
under the Income Tax Act was granted. The appellant expressed that both the
CPIO and the First Appellate Authority have rejected his application and
appeal and have not taken into consideration his submission that for
registration and enlistment of an NGO, the normal practice prevailing in any
Government office is of demanding as to whether an NGO is working on its
owned space at the shown address or they are on rent.
5. The appeal was listed to be heard on 15.10.2008 and the Commission
issued notices to the appellant as well as to the CPIO and the First Appellate
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Authority. During the course of hearing it was submitted before the Single
Bench which heard the matter that the appeal involves disclosure of Income
Tax related details of a NGO which is functioning in public domain, receives
direct funding from the State Government and tax concessions and
permission from the Income Tax Department to collect donations from private
sources and that in that sense may qualify to be a Public Authority under the
RTI Act. It was also submitted on behalf of the appellant that by its very
nature, the NGO’s functioning cannot be behind closed doors and since they
are themselves in the forefront of promoting transparency, they should set
examples by being transparent themselves about their sources of funding in
their functions.
6. Taking into account the nature of submissions, the matter was placed
before the Chief Information Commissioner for constitution of a larger Bench
to hear this matter. The matter was finally heard on 27th January, 2009. The
following were present at the time of hearing:
Appellant
Appellant, Shri Pallabh Bhattacharya was not personally present but
was represented by the S/Shri Arijit Chakravarty and Atulan SahaRespondent
1. S/Shri B.K. Gupta, CCIT-II
16. The third party in the case who was also asked to appear before the
Commission and to present their case expressed their inability to appear.
However, they filed written submissions containing, inter-alia, as under:
(i) that the appellant is in no way connected with the
organization not as a member or as a well-wisher or as a
donor. The appellant is residing at Kolkata-25, which is
at least 30 KM from the NGO in Hooghly District. No
member of their organization except Sri Somnath
Mukherjee, son of their house owner has any connection
with the third party;
(ii) The appellant is closely connected with the NGO’s house
owner which is clearly reflected in a false court case filed
by son of the house owner on behalf of his mother4
against six members of the NGO intending to vacate the
house to get higher rate of rent by depriving their disabled
children where it is mentioned that the appellant is a
witness. The appellant is closely connected with the
house owner and has the intention to vacate the
premises by ousting the NGO.
(iv) The proposed disclosure is not for public interest, it is
only for the interest of the appellant to help in the
continuous harassment procedure of the house owner
intending to vacate the house, to upset the minds of the
parents of mentally retarded children including the
Secretary of the NGO who has a 22 years aged son of
Hyperactive, Epeleptive with 100% disability and with
behavior problem.
17. The appellant’s representatives who were present presented the
arguments advanced by the appellant in his written submission and orally
during the hearing on his behalf, which are summarized as follows:
(i) Under the provisions of RTI Act, the appellant is not
required to give any reasons for seeking information at
any stage. However, he is seeking the information as he
has doubts about the fairness and integrity of this NGO
and wants this information for transparency and in public
interest.
(ii) the third party NGO is a Public Authority and not a private
entity as it is funded indirectly by Central Government by
granting them exemption under Section 80G of the
Income Tax Act, which enables them to raise donation in
consideration of, grant of tax benefit. They are also
getting direct funding from Sarva Siksha Abhiyan Project
run by the State Government.
(iii) The information is asked for from the Income Tax
Department so as to ensure that the Public Authority
(Commissioner of Income Tax) did proper verification
before the said third party was granted benefit under the
Income Tax law.
(iv) that while seeking exemption under Section 12AA and
80G of the Income Tax Act , the third party was not an
assessee within the meaning of Section 2(7) of the
Income Tax Act and as such the information provided by
them cannot be held to be available with the Income Tax
Authorities in fiduciary capacity. Even if it be argued that
the said NGO was an assessee, the requisite
documents/information were voluntarily submitted by the5
third party for obtaining financial benefit from the Central
Government by way of grant of exemption u/s 80G of the
Income Tax Act.
(v) The documents sought by the applicant have indirect
relationship to the benefit granted by the Public Authority,
i.e. Central Government. These details are not part of the
assessment proceedings of any entity. Since the third
party has derived some benefits from the Government,
the disclosure of the basis on which these have been
granted becomes a matter of larger public interest and,
therefore, cannot be held to be exempted u/s 8(1)(j). In
support of his arguments, the appellant cited the
decisions of this Commission in Appeal
No.149/ICPB/2006 dated 2.11.2006 (P.S. Pattabiraman
Vs. Dep’t. of Post, Tamil Nadu) and Decision
No.309/IC(A)/2006 dated 28.9.2006 (Br. Pranesh
Chaitainya Vs. DIT(E).
18. The respondents in the course of hearing before the Full Bench
submitted that the representative from CIT strongly objected to the appellant’s
submissions that the NGO has direct funding from the Government. He
submitted that the department grants permission for tax concession and
collection of funds on the basis of reports of the Chartered Accountant , which
has nothing to do with lease agreement or rent agreement. The appellant
cannot ask the department to give him any copy of such agreement. He
submitted that so far as the contentions of the appellant that NGO is a public
authority is concerned, the same is wrong and denied. The department is
ready and willing to disclose all that is permissible under the Act but the NGO
is not a public authority.
DECISION AND REASONS:
19.The appellant has particularly stressed the issue that the third party NGO
is a Public Authority within the meaning of Section 2(h) of the RTI Act as it is
receiving direct funding from the State Government and deriving indirect
benefits through Government of India. In this connection, it may be
mentioned that the appellant has submitted the application under the Right to
Information Act before the CPIO in the Income Tax Department and not
before the third party NGO. It is, therefore, not at all necessary to decide that
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issue in this proceeding. In fact, there is no cause of action to determine and
decide as to whether the third party NGO is a public authority or not.
20. Insofar as the response to his RTI application is concerned, the
respondent appearing on behalf of Public Authority has stated that they are
willing to provide information which is held by them concerning grant of
exemption u/s 80G or registration u/s 12AA of the Income Tax Act as
admissible under the Act. The issue is, therefore, remanded back to the
CPIO for considering the matter de-novo for issuing such information, within
three weeks from the date of receipt of this order. The appeal petition stands
disposed of accordingly.
Announced on this the 13th day of February, 2009. Notice of this
decision be given free of cost to the parties.
(A.N. Tiwari) (Shailesh Gandhi)
Information Commissioner Information Commissioner
(Wajahat Habibullah)
Chief Information Commissioner
Authenticated true copy. Additional copies of orders shall be supplied
against application and payment of the charges, prescribed under the Act, to
the CPIO of this Commission.
(L.C. Singhi)
Registrar
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