The
Right To Information
For the
BCAJ July 2006
Narayan Varma
It appears
that the case of applicant Mrs. Farida Hoosenalli seeking information from income-tax files of
Applause Bhansali Films Pvt. Ltd. (Producers of movie
‘BLACK’) shall continue for long. In May 2006 issue, the decision of the
Central Information Commissioner (CIC) was reported. The CIC had directed the
CCIT to supply relevant copies of the income-tax assessment orders, provided
that the same are not exempted u/s.8(1) of the RTI
Act.
The CCIT now
has held that the assessment orders are exempted under clauses 8(1)(e) and (g) of the RTI Act.
The said
clauses read as under :
(e) Information
available to a person in his fiduciary relationship, unless the competent
authority is satisfied that the larger public interest warrants the disclosure
of such information;
(g) Information,
the disclosure of which would endanger the life or physical safety of any
person or identify the source of information or assistance given in confidence
for law enforcement or security purposes;
The text of
the Order dated
In the Office
of the
Chief
Commissioner of Income-Tax-IX
Appellate
Authority u/s.19 of
The Right to
Information Act, 2005
Room 321, Aayakar Bhavan,
Mumbai-400020
Name and
address of appellant :
Ms. Farida Hoosenalli
522,
Appeal
No. : 1/RTI Act/CCIT IX/2006-07
Date of Order :
Order
under the Right to Information Act, 2005
In this case,
an order has been passed by the Central Information Commission on
2. The
Commission, however, directed that copies of income-tax orders may be supplied
to the petitioner if such documents are not exempted u/s.8(1) of the Act.
3. In order to
decide whether the assessment order is exempted u/s.8(1)
of the Act, an opportunity of hearing was given to the petitioner. On behalf of
the petitioner, Mr. Kewal Semlani
attended. It was explained to Mr. Kewal Semlani that the income-tax assessment order contains the
details regarding the income of a person. It also contains the scrutiny and
investigation carried out by the Assessing Officer during the course of the
assessment proceedings. A question was put to Mr. Semlani
whether he would like such information in his own case to be disclosed to
anybody. He was also asked to comment whether anybody would like the details of
his income being known to anybody else. A proposition was made that no husband
or wife would like his or her income details to be told to a third person. He
was also asked whether disclosure of such information would not endanger the
life and physical safety of the person.
4. In reply
Mr. Semlani read out the following portion of the
order of the Commission :
“In the
spirit of the RTI Act, the public authority is required to adopt an open and
transparent process of evaluation norms and procedures for assessment of tax
liabilities of various categories of assessees. Every
action taken by the public authority in question is in public interest, and
therefore, the relevant orders pertaining to the review and revision of tax
assessment is public action. There is, therefore, no reason why such orders
should not be disclosed.’’
With reference
to the above action of the Commission, it was submitted that the public
authority is required to adopt an open and transparent process of evaluation
and norms and procedures of assessment of tax liabilities. He argued that every
action taken by the public authority is in public interest, and therefore, the
copy of the assessment order should be made available to him. He also argued
that in this particular case, the information sought by the petitioner was in
public interest. Because the information she is asking as the party has defrauded
the insurance company inasmuch as the value of articles or things, which were
insured by the insurance company, was declared to be much less than the actual
value. Therefore, there was a public purpose involved in seeking the
information by the applicant.
5. I have carefully considered the
observations of the Central Information Commission, submissions and the
arguments of the petitioner’s representative. U/s.8(1)(e)
of the Right to Information Act, disclosure of information is exempted if the
information is given by the person in his fiduciary capacity. Similarly,
disclosure of information is exempted u/s.8(1)(g) if
it would endanger the life or physical safety of a person. The income-tax
assessment order contains the details of income, which are disclosed by the assessee in the return of income. The assessment order also
discusses the various points which are picked up by the Assessing Officer for
investigation. It gives details of investigations carried out and the
conclusions arrived at by the Assessing Officer.
6. The information about income is given to
the Department in a fiduciary capacity. It is a public knowledge that
information about the income of any person may endanger his life and his
physical safety. Therefore, supply of the copies of assessment order has to be
held as exempted under the provisions of S. 8(1)(e)
and (g) of the Right to Information Act, 2005.
H. Tulsyan
Chief
Commissioner of Income-tax — IX
Appellate
Authority u/s.19 of the RTI Act, 2005
Mumbai
I am informed
that the applicant is now filing 2nd appeal to the CIC, hopefully after that
the matter may come to an end. May be not, as it is understood that probably a
writ petition challenging the decision may also be filed in the Bombay High
Court.
The RTI
Act :
To continue the
study . . . . .
S. 8 and S. 9
are two very important Sections of the RTI Act. They provide for exemption from
disclosure of information. S. 8 starts with an obstante
clause : “Notwithstanding anything contained in
this Act”. Hence, the Section has an overriding effect on all the provisions of
the RTI Act. The PIO is not obliged to give any citizen information pertaining
to 10 different items contained in 10 clauses U/ss.(1). They include :
(a) Information, disclosure of which would prejudicially affect
the sovereignty and integrity of
(b) Information which has been expressly forbidden by any
court, etc.
(d) Information including commercial confidence, trade secrets
or intellectual property, the disclosure of which would harm the competitive
position of a third party, unless the competent authority is satisfied that
larger public interest warrants the disclosure of such information;
(e) Information as reproduced earlier;
(g) Information as reproduced earlier;
(h) Information which would impede the process of investigation
or apprehension or prosecution of offenders;
(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 PIO, etc. is satisfied that the larger public interest justifies the
disclosure of such information.
Even though
words underlined above already appear in 3 out of 10 clauses, Ss.(2) again emphasises : “Notwithstanding anything in the Official
Secrets Act, 1923, nor any of the exemptions permissible in accordance with
Ss.(1), a public authority may allow access to information, if public interest
in disclosure outweighs the harm to the protected interests.”
Thus, it may
be observed that as such, there are very few items of information which need
not be given, but it may be noted that it is neither mandatory not to give, nor
mandatory to give. The PIO is only not obliged to give. Further, in any case,
if public interest in disclosure outweighs the harm to the protected interests,
the PIO is authorised to allow access to information.
I understand
that a number of RTI applications received by the Mumbai Municipal Corporation
seek building plans of third parties. The PIOs are
confused whether under clause (d) they can refuse to give such plans.
As you may
have observed in Mrs. Farida Hoosenalli’s
case, clauses (d) & (j) were applied by the CIC to refuse the copies of
return of income and now the CCIT has applied clauses (e) and (g) to refuse
copies of assessment orders.
The CIC has in
one another case decided,
“Investigations
of the complaint on tax evasion by the IT Department is
a part of the process of identifying the offenders and assessing the extent of tax
evasion by them. Until the nature of offence is duly examined and thoroughly
investigated and necessary action is taken under the relevant provisions of tax
laws, the disclosure of investigation report on tax evasion is barred
u/s.8(1)(h)”.
Thus, out of
10 clauses, five have become related to income-tax matters. Incidentally, the
CIC has also surprisingly ruled that personal information like PAN and TAN of
the complainant cannot be disclosed.
S. 9 is simple and provides additional grounds for rejection to
access in certain cases. The PIOs are authorised to reject a request for information where such a
request for providing access would involve an infringement of copyright
subsisting in a person other than the State.
Other News :
·
U/s.4, every public authority
is obliged to publish 17 manuals including (a) a directory of its officers and
employees and (b) information on the monthly remuneration received by them
including the system of compensation as provided in its regulations.
The CIC now
has confirmed the above requirement in one ruling in the case of Punjab
National Bank when the said Bank had refused the information sought for one
clerk/typist with the PNB Zonal Office, Dehradun.
·
I am unable to trace a Section
which empowers the CIC to fine anyone other than PIOs.
However, for the first time, the CIC has ordered the Centre to pay Rs.5,000 to an RTI applicant. The case was of one M. N. Trivel. She wanted information on her father’s medical
history from the Central Government Health Scheme Officials. They went on
harassing her by seeking additional details about the case and giving flimsy
excuses. At the last count, the officials “invented a new and novel
justification that the information cannot be given in the economic interest of
the government”. All this, probably because they did not even have the
information which was sought. Of course, the officials did give her some
information, but charged her Rs.50 instead of Rs.4.
·
In another case, the CIC has
recommended to the Government that departmental action be initiated against one
Mr. Chaubey and warning be issued to him for the
delay in giving information under the Act. Mr. Chaubey
is General Manager of South Eastern Coalfields. This decision was arrived at
after hearing Mr. Chaubey through a video conference
between
·
It is believed that Courts
& Tribunals are covered under the RTI Act. In February, the Bombay High
Court had issued a circular saying RTI applications would be kept pending till
it decides whether the RTI Act can apply to judicial fora
at all. In a sweeping disclaimer, the rules drafted by the Delhi High Court
exempt it from disclosing any “such information which is not in the public
domain or does not relate to judicial functions and duties of the court and
matters incidental and ancillary thereto”.
This goes far
beyond the exemption provided by S. 8(1)(b) of the
Act, which is limited to “information which has been expressly forbidden to be
published by any court of law or Tribunal or the disclosure of which may
constitute contempt of court”. Even otherwise, if the
High Court proposes to disclose only what is already in the public
domain, the draft rules fly in the face of the RTI Act
which seeks to “promote transparency and accountability in the working of every
public authority”, including the judiciary.
·
RTI Clinic run by BCAS
Foundation at BCAS office continues to be doing fine. Our members and other
citizens are being provided required guidance. It is interesting to note that
our members are using the RTI Act for various purposes outside their
professional activities.
·
Mumbai will be one of the 40
cities to run RTI campaign from 1st to 15th July. In Mumbai, it shall be at the
Government Law Collage, Churchgate. Hectic
preparations are on. NDTV shall widely cover it, so also Hindustan Times and
some regional newspapers. BCAS Foundation is one of the supporting NGOs for
this campaign.
·
It is gratifying to note the
result of the last poll as reported in June 2006 BCAS Newsletter in reply to
the question “Can the Right to Information Act be used as a catalyst in
transforming the working of Income-tax Department ?
91% have replied : YES
In a later article, I shall report on how the RTI Act is benefiting the assessees.