For BCAJ September, 2007
CIC’s decisions
· Income–tax
Refunds :
S. 8(1)(j) of the RTI Act reads
as under :
8. Exemption from disclosure of information
:
(1) Notwithstanding anything contained in this Act, there
shall be no obligation to give any citizen :
Provided that
the information which cannot be denied to the Parliament or a State Legislature
shall not be denied to any person.
The case dated
Information was denied by the PIO and AA, holding
that the same is barred by exemption u/s.8(1)(h) and
in respect of one (out of 3 items of information sought) additionally exemption
u/s.8(1)(j) is also attracted.
At the time of hearing before the CIC, the respondents
firmly denied the allegations of the appellant that the vigilance enquiry in
respect of which the appellant had sought the 3 items of information was
launched against him in order to curb his crusading zeal and as a measure of a
veiled threat to him for being a whistleblower. The vigilance enquiry is
already under way. The respondents alleged that the appellant was holding out
all manners of threats to the officers of the Vigilance Wing who filed reports
against him and were engaged in conducting the investigations. The appellant,
according to the respondents, is motivated by a sense of personal vendetta and
as such, disclosure of the names, etc. of the officers involved in filing reports
against him, as well as those engaged in investigations shall expose these officers
to avoidable risk.
The appellant’s case is that information is wrongly being
denied to him by the respondents quoting S. 8(1)(h)
and S. 8(1)(j) of the Right to Information Act. There is nothing in the record
or the submissions of the respondents that would prove that the disclosure of
this information would, in any way, impede investigation. The respondents
cannot prevent disclosure of information to the appellant simply by instituting
an investigation against him. He reiterated that he was being victimised for being a whistleblower.
The CIC’s conclusion was
that all 3 items of information requested by the appellant are barred by the
exemption of S. 8(1)(h).
Then, as obiter dicta, the CIC added the
following para :
There is one other aspect,
which also needs to be highlighted in matters such as this. S. 8(1)(j) exempts from disclosure personal information, which
have had no relationship to any public activity or interest. In my view, the
information solicited by the appellant pointedly attracts this exemption. The
information pertains to no one but himself and hence is ‘personal’ as defined
in S. 8(1)(j) of the Act. This information also has
had no relationship to any public activity or interest being wholly personal to
the appellant. No amount of reference to victimisation
and concerned attempt to distract him from his role of whistleblower will
succeed in removing this case from the orbit of exemption of S. 8(1)(j).
The CIC further added :
It also needs to be emphasised that the Commission is receiving several appeals from officers facing vigilance enquiries, departmental proceedings and investigations. To grant access to information, the disclosure of which at a stage earlier than mandated by the rules of such enquiries and investigations would cause the weakening of the investigation process or delaying it. The attempt in most cases, as in this one, is to know the names of those officers who recommend vigilance proceedings, enquiries or investigations. There is an ever-present danger of such disclosures exposing the officers who perform thankless functions in the line of duty to avoidable risks. It is, therefore, important that confidentiality of certain types of information is maintained in the interest of the integrity of the investigation process, as well as the officers who conduct the vigilance enquiry. A combined reading of S. 8(1)(h) and S. 8(1)(j) unerringly points to the conclusion that the disclosure of the information as requested by the appellant must be barred not only as enjoined by these exemption clauses, but also in the context of the preamble of the RTI Act which mandates containment of corruption as an avowed objective of the Act.
The above decision now
is being used by number of Commissioners of Income-tax in Mumbai in response to
RTI applications seeking information on one’s own tax refunds and pending rectifications. In
one such order, the CIT writes :
The particulars of information requested for cannot be
supplied due to the following reasons :
i)
The information asked for pertains to no one but the
applicant herself and hence is ‘personal’ in nature as termed in S. 8(1)(j) of the RTI Act, 2005.
ii)
S. 8(1)(j) of the RTI Act,
2005 exempts from disclosure of personal information which has no relationship
to any public activity or interest. In this context, the expression ‘public
interest’ as referred u/s.8(1)(j) of the RTI Act, 2005
means those interests which concern the public at large. Matter of public
interest means matter in which a class of the community has a pecuniary
interest or some interest by which their legal rights or liabilities are
affected. Public interest concerns welfare and rights of the community or a
class thereof. In the instant case, the information solicited by the applicant being
only for personal interest having no relation with public interest, attracts
exemption u/s.8(1)(j) of the RTI Act, 2005 from
disclosure.
iii)
He then notes para 9 of the
above decision as reproduced herein above and then states :
Following the above observation of the Central Information
Commissioner, in this instant case also, the information asked for is held to
be personal in nature and therefore falls under exemption u/s. 8(1)(j) of the
RTI Act, 2005.
In view of the above facts and legal position, the application
for seeking information under the RTI Act, 2005 of the applicant is rejected
considering the provisions of S. 8(1)(j) of the RTI
Act.
It is interesting to note that in almost all cases
that have come to my notice while the RTI application is rejected, the refunds
due are being issued.
32. Insofar as application of S. 8(1)(j) to deny disclosure on the ground that personal information which has no public interest is concerned, it is necessary to explain the scope and ambit of this sub-section. S. 8(1)(j) reads as under :
(as noted above)
This Section has to be read as a whole. If that were done, it would be apparent that ‘personal information’ does not mean information relating to the information seeker, but about third party. That is why, in the Section, it is stated “unwarranted invasion of the privacy of the individual”. If one were to seek information about oneself or one’s own case, the question of invasion of privacy of one’s own self does not arise. If one were to ask information about a third party and if it were to invade the privacy of the individual, the information seeker can be denied the information on the ground that disclosure would invade the privacy of a third party. Therefore, when a citizen seeks information about his own case and as long as the information sought is not exempt in terms of other provisions of S. 8 of RTI Act, this Section cannot be applied to deny the information. Thus, denial for inspection/verification of his own answer sheets by a citizen applying the provisions of S. 8(1)(j) is not sustainable.
The RTI Act
S. 2(h) of the RTI Act defines ‘public authority’. Vide
Full Bench decision of CIC dated 7th June 2007, CIC held : Stock exchange being
a quasi government body working under the statute and exercising statutory
powers has to be held to be a ‘public authority’ within the meaning of S. 2(h)
of the RTI Act, 2005.
To understand the meaning of ‘control’ (v. regulation)
the observations of the Supreme Court in the case of Pradeep
Kumar Biswas v. Indian Institute of Chemical Biology
and Others, 2002 (5) SCC 111 are cited :
“40 . . . The question in each case would be — whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive . . . when the control is merely regulatory, whether under statute or otherwise, it would not serve to make the body a State.”
The Commission then writes :
The submission of the Ministry of Finance before the
Commission was :
The control, if any, by the
Government on a stock exchange including DSE is only a regulatory control like
the Government exercising regulatory control over an incorporated company under
the Companies Act, 1956 or an industrial undertaking under the Industries
(Development and Regulation) Act, 1951 or SEBI exercising control over registered
entities under the SEBI Act, 1992. This is not financial, functional or administrative
control, which is required for the purpose or RTI Act, to determine if any
entity is public authority under the Act.
The Commission noted in para 25 :
The Commission has carefully
considered the submissions made by the parties. Although the National Stock
Exchange, and for that matter even the Jaipur Stock
Exchange, may have been incorporated as a company and may have been registered
under the Companies Act, but still they do discharge an important public
function as they regulate and control the business of sale and purchase of
securities. This business cannot be taken by any other company or any body or institution
u/s.4 of the SCRA. Mere incorporation does not give them any right to function.
It is the grant or recognition by the SEBI which exercises the powers of the
Government under SCRA that enables them to function as a stock exchange. Thus,
it is not the incorporation, but the recognition which makes them function. Although
the day-to-day functions of the stock exchange are managed by a Board and the
stock exchanges do have the powers to make the byelaws, these powers are also
conferred on them u/s.9 of the Securities Contracts (Regulation) Act, 1956.
It then concluded in para 27 :
S. 11 of the SCRA confers
powers on the Government and the SEBI to supersede the governing body of a
stock exchange. The Government’s control can be further inferred from the
provisions of S. 11 of the SCRA, which enables the Government and the SEBI to supersede
the governing body of a stock exchange. The Central Government also has powers
to suspend the business of the stock exchange. Thus, a stock exchange starts
its function only after recognition and even while so functioning, remains
under the implicit control of the Government through SEBI, which has to be categorised as ‘pervasive’.
Based on the above, the Commission held that stock exchanges
are “public authority” within the meaning of S. 2(h) of the RTI Act, 2005.
Note :
Other News
·
Mr. O. P. Kejariwal,
CIC in
Activists later claimed that during the 40 days of their
campaign, they received as many as 200 complaints, of which they had taken 36
to the High Court and were exploring possibilities of challenging more.
The CIC states that both sides have squandered opportunities
to learn from each other. Neither side has been able to appreciate that the CIC
and the activists are fellow travellers.
He concludes : “The media
has failed to take up social issues which could result in bringing about systemic
changes, one of the major objectives of the RTI Act. The law is arguably the
single-most powerful piece of legislation enacted in independent
· Cash-for-query
scam :
The CIC has pulled up the CBI for denying information
to an RTI applicant on the cash-forquery scam in
which MPs were accused of taking bribes to ask questions in the Parliament. The
CIC termed the denial of information as “symptomatic of a larger malaise which
is an unsystematic servicing of the right to information (RTI) by the CBI” and
directed the agency to provide the details within 10 days.
· CAT
examination :
In this column, I had reported one case of Vaishnavi Kasturi, a visually
impaired B.com student, related to CAT examination (Pg. 93 of April 2007). In a
landmark order the CIC has directed IIM-Bangalore to spell out the criteria and
procedures while
admitting students,
especially those with visual disability. In his order dated
· CIC
differs with Union Minister on disclosing file notings
:
The Central Information Commission has differed with a Union Minister’s assertion in Rajya Sabha that the denial of file notings under the Right to Information Act is in accordance with law.
The Minister of State for Personnel, Public Grievances
and Pensions Suresh Pachouri had said in a written
reply in the Parliament on May 10 that the decision to deny file notings under the RTI Act was in accordance with ‘legislative
intent’.
Referring to its Full-Bench order of January, the commission
said, “the response to the unstarred
question submitted to the Parliament is not in accordance with the RTI Act”.
Pachouri’s reply, made in
response to an unstarred question in Rajya Sabha, was placed before
the Commission during a hearing by the Department of Personnel and Training to
justify its decision to deny certain file notings.
The Commission was hearing an application by IAS Officer
Naresh Chaturvedi, who had
sought from the Department file notings of its
correspondence with the Central Vigilance Commission regarding departmental
proceedings against him.
Rejecting the Department’s contention on
nondisclosure of notings, the Chief Information Commissioner
Wajahat Habibullah directed
it to provide the information to Chaturvedi within 10
days. It also directed that a copy of the order be placed before the
Vice-President in his capacity as chairman of the Rajya
Sabha.
The Department of Personnel and Training’s website
has been maintaining that information disclosable
under the RTI Act does not include file notings.
While the Government says it was the ‘legislative intent’
to keep file notings beyond the ambit of the RTI Act,
the Commission has consistently held a different view.
The
clock at Crawford Market :
Please refer to the item under ‘Crawford Market clock
to start functioning, thanks to RTI’ on page 94 of BCAJ April, 2007. It was
reported as under :
“The clock at
Crawford Market has kept time for 134 years, but it stopped in 2003. Help has
now come from RTI to get it restarted. One Mr. Aziz Amreliwala applied under the RTI Act asking if there is any
intent to set the clock right, and if so, how much time it would still take. In
reply, the BMC has stated that the repair work will begin as the annual
contract of maintenance is finalised. Mr. Amreliwala is determined and says that he will pester the
BMC every two days on the progress of the work.
At last the clock that occupies pride of place atop the
famous Crawford Market building began ticking once more on Friday, 6th July
2007. The 137- year-old clock had stalled for the last three years. No ceremony
accompanied its restoration.
Amreliwala had applied three
times under the Right to Information Act, asking if and when it would be set
right. His persistence prompted the Dorab Tata Trust to approach the ‘A’ ward officials with a
proposal to get it started once more. Expert restorer Venkateshwar
Rao, who repaired the
RTI in action (No. 4)
RTI application was made on
— What are the amounts of
Education Cess collected in each year ending on
31-3-2005, 31-3- 2006, and 31-3-2007 separately on income tax, corporation tax,
excise duties, custom duties and service tax ?
— The amounts of collected
Education Cess spent in the above-referred three
years. Please give detailed information of major amounts as to where spent, how
spent, etc. to cover at least 60% of the disbursements made.
— Is any separate audit done in
respect of Education Cess spending
?
— Is there any report prepared
on this subject to inform taxpayers that Education Cess
specially levied is used properly. If yes, please give
copy. If not, does the Ministry plan to do so. If yes,
when ?
·
Vide letter dated
·
Vide two letters dated 22-5-2007, CBDT informed that
on point 1 above, application is transferred to Director (Budget) and on points
2, 3 & 4, the application is transferred to D/O Expenditure, Ministry of
Finance.
·
On
Education cess collected under
direct taxes
(Amounts in crore)
|
Year |
Income Tax |
Corporation Tax |
Fringe Benefit Tax |
|
2004-05 |
620.44 |
1166.95 |
— |
|
2005-06 |
1187.35 |
2009.15 |
93.57 |
|
2006-07* |
1386.00 |
2536.00 |
103.00 |
* The
figures for the year 2006-07 are provisional
·
On 12th June 2007, the same Section Officer and CPIO
(Budget) on 1st issue on the remaining part gave the information as received by
him from the Office of Pr. Chief Controller of Accounts, Central Board of
Excise and Customs, as under :
(Amounts in crore)
|
Year |
0037-Customs |
0038-Union Excise Duty |
0044-Service Tax |
|
2004-05 |
735.00 |
1451.01 |
186.40 |
|
2005-06 |
1247.93 |
2138.28 |
442.34 |
|
2006-07* |
1709.54 |
2495.31 |
722.46 |
Note : The
figures for the year 2006-07 are up to March (Suppl) A/c.
2007 and the figures are provisional only.
Thus, it can be observed that total Education Cess collected for 3 years is as under :
|
Year |
Total education cess |
|
2004-05 |
Rs. 4159 crore |
|
2005-06 |
Rs. 7118 crore |
|
2006-07 |
Rs. 8952 crore |
|
|
Rs. 20229 crore |
On issue no. 2, again on
·
On 4th July 2007, letter is received from the Ministry
of Human Resources Development (Department of School Education and Literacy) as
under :
“Department of Expenditure has transferred application
to us vide their
From one department to another department in
Information received is as under :
In this connection, it is informed that in order to bridge
the gap between available plan resources and estimated requirements to finance
the programmes for universalisation
of elementary education, the Finance (No. 2) Act, 2004, (on 8-7- 2004) levied
an Education Cess @ 2% on Income- Tax, Excise Duty,
Customs Duty and Service Tax “to fulfil the
commitment of the Government to provide and finance universalised
quality basic education”. A non-lapsable fund called the Prarambhik
Shiksha Kosh (PSK) was
created in the Public Account of India vide orders dated 14-11- 2005 for the
purpose of crediting into it, all proceeds of Education Cess.
PSK became a separate line item for the first time in Union Budget 2006-07. A provision
of Rs.8,746 crores for the
initial transfer to the PSK was made in the Union Budget 2006-07 against
estimated receipts of Education Cess. Further, in the
3rd Batch of Supplementary Demands for Grants, a provision of Rs.189 crores was provided for additional transfer to PSK based on
additional estimated collection of Education Cess
during 2006-07. Accordingly, in the financial year 2006-07, Rs.8935 crores was transferred to PSK.
As per information furnished by the Ministry of Finance,
the amount collected through the Education Cess for
the years 2004-05, 2005-06 and 2006-07 (up to February, 2007) is as under :
(Rs.
in crores)
|
Financial Year |
Direct Taxes |
Indirect Taxes |
|
2004-05 |
1804.51 |
2514 |
|
2005-06 |
3215.75 |
4424 |
|
2006-07 (upto Feb 2007) |
2982.00* |
3851* |
*
Provisional
If required, the latest updated information regarding
the amount collected through the Education Cess
separately on Income-tax, Corporation Tax, Excise Duty, Customs Duty and Service
Tax may be obtained from the Principal Chief Controller of Accounts, CBDT &
CBEC, Department of Revenue.
As per decision taken by the Government, the proceeds
of the Education Cess credited to PSK are spent on Sarva Shiksha Abhiyan
(SSA) and Mid- Day Meal (MDM) Scheme of the Government. Each year after
exhausting the funds provided by way of Gross Budgetary Support for the schemes
for SSA and MDM, subsequent expenditure on these schemes will be financed from
the PSK. As mentioned in above, PSK became a separate line item for the first
time in the Union Budget 2006-07. Accordingly, in the financial year 2006-07,
the proceeds of Education Cess have been utilised to the following extent by the Ministry of Human Resources
Development, Department of School Education Literacy through release of grants
to various States/UTs under SSA/MDM Scheme as per
respective guidelines of these schemes as indicated below :
|
Project/Scheme |
Amount released (Rs. in crores) |
|
Sarva Shiksha Abhiyan |
5830.67 |
|
Mid-Day Meal |
2911.00 |
The Audit Reports/Utilisation
certificates in respect of funds released to the States/UTs
during 2006-07 under SSA and MDM schemes are expected to be received in due
course as per provisions given in the General Financial Rules. Moreover, as per
the Resolution regarding setting up of Prarambhik Shiksha Kosh (PSK), the
expenditure incurred out of the PSK shall be subject to internal and statutory audit.
This Department has not prepared any specific report/publication
with a view to inform taxpayers about proper utilisation
of the proceeds of Education Cess. At present, there
is no proposal under consideration to prepare/publish such a report.
It is interesting to note that out of Rs.20,229 crore collected only
Rs.5,830.67 crore is spent through Sarva Shiksha Abhiyan
and Rs.2911 crore on ‘Mid- Day Meal’. It appears that
mid-day meal is considered as expenditure on education. As can be
observed, amounts given as
grants to various States and
Now, at least members know where Education Cess we pay goes !
The dates for next RTI
Clinic are Saturdays, 8th September, 22nd September and 29th September :