For BCAJ August, 2007
CIC’s decisions
·
Condonation
of delay in filing 1st Appeal
One advocate, Shri Ravinder Kumar’s 1st appeal was delayed by 21 days and was rejected. CIC in its Order stated that the Commission has been liberal with condonation of delays. It condoned the delay in this case and stated “I would like this appeal to be heard once again at the first appellate level to enable Shri A. K. Jain, Chief CIT Delhi – IX to pass within 45 days a speaking Order on the communications received by the appellant from the CPIO.
·
Disclosure of information related to I.T.
return and assessment
In the case of Mr. Bhushan
Kumar vs. CIT, Patiala and Chief CIT Chandigarh, issue was whether information on Income-tax
returns and the assessment of tax liability of third party, in this case
father-in-law of the appellant with whom he had an on-going personal dispute,
can be disclosed.
CIC ruled as under:
It is quite clear that regardless of what the appellant has said about the nature of this information, it actually relates to the Income-tax Returns of the assessee and the assessment of tax liability thereof. It has been the decision of this Commission that such information should not be disclosed in view of section 8(1)(j) and section 8(1)(e) of the RTI Act. A plea of public interest in disclosing this information needs to be subjected to strictest scrutiny before it can be accepted. In the present case, the queries of the appellant do not qualify in the public-interest test. It needs to be added that disclosure of income and expenditure related information of a given assessee found in the Income-tax return, or as determined by the I.T.O. / Assessing Officer, if made public has the potentiality to expose that assessee to grave danger from unscrupulous and criminal elements. Therefore, the Commission has very rightly decided that Income-tax assessment related information of an assessee must be allowed to remain undisclosed.
·
“When an appeal is converted into an
instrument of slander”
Very
interesting and eye-catching para is written by CIC
in the case of Shri R. P. Pandeya
(ex-officer of IT department) vs. Dr. Prayag Jha, CIT,
The words and expressions used by the appellant in his appeal – petition before the Commission have been quoted in the preceding paragraph as a testimony to the fact that this appeal seems to be rooted more in the appellant’s old grudges against the AA and the CPIO, whom he has described as biased, prejudiced, vindictive and shameless high caste officials. Such aggressive anger is quite unusual in any person, especially in a person such as the appellant, who himself was a former civil servant. The RTI Act was designed and brought into force for honest dissemination of information. It was not meant to provide a battle-ground for venomous attacks and counter-attacks with no regard for decency and decorum. The appellant’s capacity to employ abusive language appears formidable, and his bitterness against the so-called high caste officers quite unremitting. These are unusual traits in any person and more so in a former civil servant, which is this appellant, who spent a lifetime learning the virtues of restraint, discipline, courtesy and decorum. Civil Servants – serving or retired are expected to be role models to others, rather than set a wrong and vicious example, no matter what the provocation. RTI Act was meant to serve a larger purpose. It was not intended to become a tool in the hands of present and former Government employees to be exploited to settle past scores, play-out ancient grudges and resolve grievances – real or imaginary. CIC will need to seriously consider the line of action to adopt, when an appeal is converted into an instrument of slander.
Note: Facts of the case and the decision are not dealt with here being too long.
·
Eligibility of an applicant for RTI
application
·
Information related to search matters
In
July issue of BCAJ on 1st issue as above, decision (dated 17.5.2007)
was reported wherein CIC (Wajahat Habibullah)
has decided that application from any entity other than citizen of
A perusal of the records shows that the appellant herein is a Firm (sic),
and the appeal has been signed by the authorized representative of the firm
(sic). It has been the consistent view of this Commission that the right to
invoke the provisions of the RTI Act vests only in citizens of
“Reason
to believe with the Deputy Commissioner of Income Tax (investigation) Unit IX(3), on the basis of which a search was conducted on Shankar Sharma / Devina Mehra and the information in possession of the officer on
the basis of which the said reason to believe was formed.”
Respondents, Director of Income Tax (Inv.)-II Mumbai and Director General of IT (Inv), Mumbai presented elaborate arguments about why this information should not be disclosed-crucial as it is to the very functioning of the public authority.
CIC gave new meaning to the word “investigation” by saying that it can be “an extended investigation”. Thus he held that information sought is exempt u/s 8(1)(g) and 8 (1)(h) and rejected the appeals.
Though appeals are rejected and some of the earlier Orders of CIC are negated by extending the meaning of “end of investigation”, I believe it is very crucial and interesting decision and correct decision. Space does not permit to quote various paras from it. Hence, full judgement is posted on BCAS website and can be read there.
I would also like readers to post their views and the issue can be blogged by many.
[Shri Shankar Sharma / Ms. Devina Mehra vs. The Director of IT (Inv.) – II Mumbai and Shri S. S. N. Moorthy. D. G. of IT (Inv.) Mumbai: decided on 10.7.2007]
·
The RTI Act:
To continue the study…..
Section 29: Section provides that every Rule made by the Central Government under the Act shall be laid before each House of Parliament for 30 days. If both Houses agree in making any modification or that rule should not be made, the rule thereafter shall have effect only in such modified form or be of no effect, as the case may be. However, validity of anything previously done under that rule will not be affected. Sub-section (2) provides that every rule made by a State Government shall be laid before the State Legislature.
Section 30: It provides that if any difficulty arises in giving effect to the provisions of the RTI Act, the Central Government may make such provisions not inconsistent with the provisions of the Act for removal of the difficulty. This power is limited by providing that no such order shall be made after the expiry of two years from the date of commencement of the Act (i.e. 15.6.2005). Thus, time limit has already ended.
Section 31: provides for the repeal of The Freedom of Information Act, 2002. That Act, readers may note, though enacted in 2002 was never notified and never came into force.
The Act has two Schedules. The first Schedule: It provides form of oath or affirmation to be made by CICs and SICs. The second schedule: It provides for 22 intelligence and securities organisations established by the Central Government to which the Act is not to apply to the extent provided in section 24.
With this issue the study of the RTI Act comes to an end. However, whenever any interesting interpretation of any section or words therein are reported anywhere, this part will appear. Two terms under the Act which are creating lot of confusion are:
‘Controlled’ and ‘Substantially financed’ used in section 2(h)
Many organisations claim that they are not covered under the RTI Act as they are not controlled / substantially financed directly or indirectly by funds provided by the Government.
This was one of the issues involved in the full bench decision of CIC declaring BSE and NSE as covered under the RTI Act (July issue of BCAJ p. 479). Some details from this decision discussing word ‘controlled’ will be reported in the next issue.
·
Other News
·
12 year old boy is expert on RTI application
The
father - son duo in Pune have filed as many as 150
RTI applications in last two years. Son is 12 year old and the father is
illiterate. Father was denied a job by garden department of Pune
Municipal Corporation (PMC) which claims his job application did not fit with
the rules. Son, Kumar Laxman makes RTI applications,
reads the replies from PMC’s PIO and makes appeals. Father
is of the view that he should have been given the job. He asked his son to read
the RTI Act and then instructs him to write applications and appeals. Son hopes
that RTI would one day help his “Baba” to get the job at the earliest so that
he can look after the family well.
·
Bofors case
Name
“Bofors” shall perennially remain in news. Now CIC
has directed the CBI to furnish details within 15 days to
·
BPL status to avoid payment of RTI fees
A retired senior officer of Nationalised Bank and owner of a house arranged to get a certificate from Delhi South District’s Deputy Commissioner that his status is ‘below the poverty line’ and that his income is only Rs. 1,316 per month. CIC refused to accept the income certificate.
·
RTI to empower villages
Per
Kewal Semlani, the RTI
activist, has mooted the idea of taking the RTI movement to the villages and
his NGO, Mahadhikar will train rural activists in
·
SEBI and IPO Scam
In
2006, SEBI had banned Indiabulls Securities from
trading for its alleged involvement in an IPO scam, but revoked the ban within
24 hours. RTI applicant Y. P. Singh, former IPS officer and a lawyer, sought
files from
The SEBI sought protection under section 8(1)(h) of the RTI Act, which states that any matter that impedes the process of investigation cannot be given. In first appeal, Singh argued that it was suspected that several bureaucrats and politicians had invested their clandestine funds in the company and they had exercised their influence to get the ban revoked.
He contended that the major course of action in this reference happened almost a year ago, in April 2006, when SEBI suddenly withdrew its own Order whereas it could have been done only by the Securities Appellate Tribunal under section 15T of the SEBI Act.
After the Appellate Authority having rejected the appeal, matter has now gone to CIC for final decision.
·
Interesting write up by Arvind
Kejriwal
Mr. Arvind Kejriwal, ex Income-tax official, now the founder and head of Parivartan, a citizen’s movement for improving governance writes in “MINT”:
It is one and a half years since the Central Right to Information (RTI) Act was passed. There were huge expectations that this law would bring in much-needed transformation in governance. And rightly so. The experience with the RTI Acts in many states earlier had been quite encouraging.
However, the experiences with the central RTI Act have been mixed. A trend can be seen - when you file an RTI application, either you get information in the very first instance, if you do not and if you file an appeal, there is very little chance that you will get information. The appellate process, notably the information commissioners, barring a few exceptions, is perceived to be functioning against citizens rather than protecting their interests.
There is one area where the RTI Act has so far been used with great precision – if any legitimate work was pending in any government department and government officials were not doing it, either because they expected a bribe or simple bureaucratic lethargy. The RTI Act has proved very effective in such situations. Whether it is a pending passport or an Income-tax refund or an old age pension or a caste certificate or any other work – earlier people used to feel completely helpless in their day-to-day dealings with government. RTI has given ordinary people the power to be able to challenge bribery. There are thousands of people across the country who used RTI and said no to bribes.
How does it work? When you ask questions such as – give me the names of the officials who were responsible for doing my work and who have not done it, why has my work not been done so far, when will my work be done now – it becomes difficult for government departments to reply to your queries. Because the responsibility gets fixed. In most cases, before they provide information, they end up doing your job.
·
RTI in action (No. 3)
My partner filed RTI application dated 26.04.2007 addressed to PIO: CBDT, Government of India seeking following information:
Particulars of the information
required:
(i) Subject matter of information:
Information on Implementation of Citizens’ Charter
(ii) The period to which the information relates:
Year ended 31.3.2007 and of the current year.
(iii) Description of the information required:
§ Information on any efforts made or monitoring done on implementation of this charter, specially whether any report related to Mumbai Charge is available. If yes, copy thereof.
§ It is observed that by and large the commitments made are not being carried out e.g.
§ Is there any record as to how many rectification applications u/s.154 of the Act are received in above period in Mumbai charge and how many are disposed off within 30 days and if not, whether any actions are being taken to meet the commitment?
§ It is observed that rarely refunds are issued within 30 days of determination and in the process interest u/s.244A is also under-issued, whether any study or survey is made of any charge in Mumbai and if yes, please give copy of the findings. If not, whether CBDT has any plan to implement this commitment shortly and if yes, where & how?
2. Vide letter dated 8th May, Director (HQ) CBDT transferred the application to Director of Income tax (DOMS) u/s 6(3) of the RTI Act.
3. Vide letter dated 30th May, Director of Income-tax (O & M) has replied as under:
i) The existing Citizens’ Charter was formulated in November, 1998. However, there was no mechanism to monitor the commitments listed in the Charter. There is no report available in this Directorate relating to Mumbai charge.
ii) No statistics in regard to receipt and disposal of rectifications u/s 154 relating to Mumbai Charge are maintained in this Directorate.
iii) The report regarding study or survey, if any, made in Mumbai Charge relating to issue of refund is not available in this Directorate. However, it is pertinent to mention here that the Department is in the process of reviewing and re-writing Citizens’ Charter. Care is also being taken to put in place a robust monitoring mechanism for all the commitments made in the Citizens’ Charter including issue of refunds.
As far as information of Mumbai charge is concerned, I have also written to the CPIO at Mumbai. You may also get in touch with him. The name and address of the CPIO at Mumbai is given below:
Shri Sanjay Kumar CPIO Addl. Commissioner of Income-tax (Headquarters) (Vig. & Tech) Aayakar Bhawan,
4. Mr. Sanjay Kumar, CPIO, CCIT (CCA), Mumbai vide letter dated 11th June has provided following information
The information obtained from the O/o Jt. Commissioner of Income Tax (OSD) (HQ) Co-ordination, Mumbai is furnished as under:
i) No. of rectification applications received during F.Y. 2006-07 : 20049
ii) No. of rectification applications disposed off within 30 days: 9896
Reasons
for pendency beyond 30 days:
1. Credit for prepaid taxes not given for want of necessary proofs and due to defective TDS certificates etc.
2. Failure on the part of assessee to produce the required details, furnish indemnity bonds etc.
3. With effect from 01.06.2004 credits for Advance-tax and Self-Assessment tax payments are coming through OLTAS, but in some cases said tax payments were not coming through OLTAS, either due to a mistake committed by the assessee in mentioning his PAN or mistake committed by receiving bank in punching the PAN / assessment year / major head / minor head for which the tax payment was being received.
Readers would find it difficult to believe that all pendency on rectification applications beyond 30 days arise only on account of some deficiencies on the part of the tax-payers / banks etc. and not one matter of pending application is because of inefficiency or lack of care on the part of the department official. Readers are requested to bring such cases to the notice of the department to disprove what is stated by CPIO, Mumbai.
|
The dates for next RTI Clinic are
Saturdays, 11th August, 18th August and 25th
August: |