Narayan
Varma
Under this
feature, in BCAJ, January 2006, I had covered an interesting case related to
“third party information”. Case was of
an antique dealer Mrs. Farida Hoosenally who had supplied goods (antiques &
artifacts) worth Rs. 4.48 crores to the film production company, Applause
Bhansali Films Pvt. Ltd. of Shri. Sanjay Leela Bhansali for the purpose of use
in the sets of the film “Black”. Due to
fire on the set, the goods worth Rs. 1.5 crores were destroyed. Instead of paying full value of the loss
suffered by her, she was paid Rs. 20 Lakhs only. She had requested the copies of the
producer’s Returns of Income for A.Ys. 2004-05 & 2005-06 and other relevant
documents applying under the RTI Act. PIO had declined to provide the papers
requested for.
The appeal
against the said refusal was furnished to CCIT – IX, appellate authority u/s 19
of the RTI Act, 2005.
Section 11
of the RTI Act provides that when PIO intends to disclose any information or
record which relates to or has been supplied by a third party and has been
treated as confidential by that third party, then PIO has to invite the third
party to make a submission regarding whether the information should be
disclosed. Shri Kewal Semlani, the
activist of RTI who appeared on behalf of and with Mrs. Hoosenally submitted
that the returns filed by Mr. Bhansali were not confidential documents since
they were not marked as confidential by him.
He further submitted that “Once the information came to the possession
of the income-tax department, it became public information and it was no more
private information. It was submitted
that there was no need to call for the objection from the third party because
the information itself was not confidential”.
It was also
submitted that the information sought by the appellant was of public documents
as per the section 74 of the Indian Evidence Act, 1872, once a private document
comes in public domain, it becomes a public document.
CCIT in the
Order ruled that “ it is incorrect to say that just because the documents are
not marked confidential they are not confidential. The information submitted by an assessee in
the return of income or in the documents accompanying the return is information
submitted in commercial confidence. The
information contains trade secrets and intellectual property. Disclosure of such information may harm
competitive position of a third party.
Further the information is submitted to the department in a fiduciary
capacity. The information is also
personal information, the disclosure of which has no relationship with any
public activity or interest”.
CCIT also
noted: “The appellant has also referred to the provision of section 74 of the
Indian Evidence Act, 1872. There are a
number of case laws which lay down that the information given in the return of
income or assessment order is confidential.
It is only the assessee who has a right to waive this
confidentiality. It is because of the
confidential nature of the information that provisions of section 138 of Income
Tax Act lay down that the Central Board of Direct Taxes or any other Authority
authorised by them may furnish or cause to be furnished to certain officers of
the department specified such information which may be necessary for the
purpose of enabling the officer to function under that law. The Act also further lays down that the
information can also be furnished to a person where the Chief Commissioner or
the Commissioner of Income Tax is satisfied that it is in public interest to do
so. In view of this, the submission of
the appellant that once the information was in the possession of the department
it was a public document is not acceptable.
Further the information related to a third party who raised serious
objection to furnishing the information to the appellant. It was in the fitness of things and also
obligatory on the CPIO to invite the third party and ask him whether the
information should be disclosed. The third
party objected to furnishing of the information”.
Based on
above, the said CCIT, Mr. Tulsyan vide the Order u/s 19 of the RTI Act, dated
30.12.2005 has dismissed the appeal and held that the information sought for is
rightly rejected.
I
understand that Mrs. Hoosenally is now filing second appeal against the above
decision to the Central Information Commission u/s 19(3) of RTI Act.
In BCAJ Jan 2006, reference was
also made about PSU banks vs. private banks, the former covered under the RTI
Act while later remaining outside the purview.
In this matter, further development has taken place. PSU banks have represented to the finance
minister P. Chidamaram seeking exemption.
Even the standing committee of public enterprises has set up a
sub-committee on the RTI Act which is toying with the idea of recommending
extension of the law to private sector.
Votaries of this demand are showcasing South Africa’s ‘promotion of
Access to Information Act, 2000’ which mandates even global giants like
McDonald’s, Revlon, De Beers, Roche and others to provide information to a
citizen on demand. So strong is the law
that despite their parent company and sister concerns having no such
obligations in other jurisdictions, once they start operating from
“Commonwealth
Human Right Initiative”, very active NGO on the subject of RTI is supporting
the move to bring private sector under RTI movement. Their argument is that “ultimately all these
companies use public funds sourced from banks and other financial institutions
for their operations. They use money
deposited in public banks to finance their operations. So people do have the right to know how they
run themselves.”
It is said
that the most commonly flouted provision of the RTI Act is the one prescribing
that every Public Authority shall publish and maintain 17 manuals in the public
domain to usher in transparency in the functioning, with that the public will
have minimum resort to the use of the Act to obtain information. Very few public authorities have put such
manuals on websites.