For BCAJ November, 2007
Narayan Varma
CIC’s decisions
● Shri Rakesh Kumar Gupta, a Chartered Accountant in
(i)
Copy of daily proceeding of the minutes maintained by Members of the Bench in above-mentioned
case;
(ii) Copy of ITAT decision in
the above Income Tax Appeal No. 567; and
(iii) Inspection of all the
case records.
2. The CPIO, vide reply dated
(i)
Daily minutes maintained by Members of the Bench are part of judicial
proceedings and are meant only for the use of the Members;
(ii) Copy of the order in the
case of Escorts Limited A.Y. 2001-2002, Appeal ITA No. 567/ Del./05-Bench G can
be given only to the concerned parties or their representatives duly authorised to receive such order; and
(iii) Inspection can be granted
only to the concerned parties or their representatives duly authorised
in this behalf.
3. Aggrieved with the decision of the CPIO, the appellant
filed his first appeal on
4. The appellant in the meantime received a communication
from the Registrar, ITAT, dated
(i)
Copy of daily proceedings is required to be maintained by the Members of the
Bench;
(ii) Third party may apply and
obtain copy of ITAT decisions;
(iii) Third party may inspect
the ITAT appeal records; and
(iv) A
person not a party to the proceeding may be permitted to interfere with the
Appellate proceedings of the Tribunal under the Right to Information Act or
which authorises him to challenge the order of the
ITAT.
The Registrar also asked the appellant to indicate whether
Income-tax Assessment and proceedings before the ITAT are not confidential in
nature and as such, not supposed to be disclosed to any 3rd party
(who is not a party to the proceedings).
5. The appellant, vide his reply dated
(i)
The object of the RTI Act is to bring about transparency and accountability in
the working of every public authority;
(ii) U/s.19(5)
of the RTI Act, the onus is on the CPIO to justify any denial of request;
(iii) Not reproduced here
(iv) He
is informer in this case and will be affected by the decision of the ITAT;
(v) There are specific
provisions under the ITAT Rules under which information sought by the appellant
can be given and referred to Rule 49(4) providing for fees for the publishers
and Rule 33 under which proceedings before the ITAT are open proceedings in
cases like this;
(vi) Rules 49 and 50 of the ITAT Rules under which inspection of ITAT records are free to everyone till the case is pending and free for the party forever. The proceedings before the ITAT are conducted in open hearing and, therefore, they cannot be confidential or private;
(vii) Under Rule 33 of the ITAT
Rules, Income-tax assessments and proceedings before the ITAT are public in
nature and open in cases like this;
(viii) Inspection of records is
a fundamental right under Article 19 of the Constitution of India as laid down
in AIR 1982 SC 149;
(ix) Right to know gives rise
to the concept of an open government, which is implicitly contained in Article
19(1)(a) of the Constitution of India which guarantees
freedom of speech and expression. Disclosure of information regarding functioning
of the government, therefore, must be the rule and secrecy an exception;
(x) U/s.138(1)(b) of the Income-tax Act, the Chief Commissioner or the Commissioner is bound to furnish the information asked for, if he is satisfied that the same is in public interest. However, rejection will have to be supported by reasons to justify that public interest demanded a rejection of the request; and
(xi) S. 22 of the RTI Act
overrides every other law or any instrument for the time being in force.
6. The First Appellate Authority and President of the
ITAT, Shri Vimal Gandhi,
after providing a personal hearing to the appellant and considering subsequent
representations of the appellant dated 30th August 2006 and 4th
September 2006, decided the appellant’s first appeal and vide order dated 5th
September 2006, communicated his decision to the appellant Shri
Gupta. In the course of hearing of the appeal, the appellant agreed that he
would be satisfied if he is given the following information :
(i)
Certified true copy of the order in ITA No. 567/Del./2005 of Escorts Limited;
and
(ii) Inspection of all the
records mentioned by him in his RTI Memo.
7. The First Appellate Authority held that there are
specific provisions under the Income-tax Act to supply certified copy of the
order in ITA No. 567/Del./2005, as asked for by the appellant and directed the
Registry to supply the same to theappellant. As
regards the second request of the appellant pertaining to inspection of all the
records at (ii) above, the First Appellate Authority said a similar matter
relating to the same appellant is under consideration of the CIC and it is
settled law that a lower authority being aware of this fact is under an
obligation to wait for the orders of the superior authority and comply with the
same. They are, therefore, waiting for the directions of the Central
Information Commission and as soon as they receive such direction, they would
comply with that direction and pass their orders in line with that direction.
8. In the meantime, this Commission passed its orders
on
Shri Gupta’s second appeal
before CIC was heard on
On
(i)
Whether this Commission, under the RTI Act, can order the ITAT to disclose
information which that Tribunal has decided not to disclose under the
Income-tax Act, 1961, as amended from time to time and rules made thereunder ?
(ii) Whether the RTI Act
applies to a judicial proceeding and, if so, does it override the existing law
concerning dissemination of information in respect of a judicial proceeding ?
(iii) Whether the information,
which the respondents say is prohibited under the Income-tax Act, can be given
under the RTI Act ?
The Bench has recorded elaborate reasons and has cited
certain provisions of the Constitution and of the RTI Act and few decisions of
the Supreme Court. The Commission decided and directed as under
:
(i)
S. 4(1)(d) does not apply to judicial proceedings conducted
by a Court or a Tribunal, as it refers only to administrative and
quasi-judicial decisions of public authorities.
(ii) The non-obstante clause in S. 22 of the RTI Act does not repeal or substitute any pre-existing law including the provisions of the Income-tax Act concerning dissemination of information.
(iii) The appellant cannot take
recourse to the RTI Act to challenge a judicial decision regarding disclosure
of a given set of information, which properly belonged to the jurisdiction of
that judicial authority. If the appellant is aggrieved with the decision of the
ITAT, the remedy lies elsewhere.
(iv) It
is reiterated and made clear that the RTI Act is not intended to come into
conflict with a judicial decision regarding disclosure of information. S.
8(1)(b) of the RTI Act, 2005 makes it very clear that the information which has
been expressly forbidden to be published by any Court of law or Tribunal cannot
be disclosed as any such disclosure is also within the
exemption
clause.
(v) In the present case,
however, though the respondents have submitted during hearing that the Tribunal
has passed an order rejecting the request of the appellant for inspection of
the document, supporting documents have not been submitted before the
Commission.
Under these circumstances, the matter is, therefore, remanded
back to the First Appellate Authority with the following directions
:
(a) He will determine whether
there is any judicial order of the Tribunal pronounced under the Income-tax Act
as regards disclosure of the information sought by the appellant, and if it is
so, the remedy available to the appellant shall be under the Income-tax law and
not under the RTI Act.
(b) If there is no such
judicial order from the Tribunal, in that case, the First Appellate Authority
will consider the appeal under the provisions of the Income-tax Act read with the
Right to Information Act and will pass a speaking order within a fortnight from
the date of receipt of this order.
As the decision is a landmark one deciding some basic
issues and very much related to our profession, the text of the full decision
is posted on our website www.bcasonline.org for members interested to read
specially as the arguments of both the sides and the reasons of the Commission
in deciding the issues are very interesting (running into 14 pages).
[Shri Rakesh Kumar Gupta,
The RTI Act
S. 11(1) r.w. S. 7(7) of the
RTI Act :
● Judgment of The High Court of Gujarat In the
judgment dated
Summarised facts of
the case are :
About 55 RTI applications have been preferred by one Shri Rasiklal Mardia
for getting information about Reliance Industries Ltd. and its group companies,
(hereinafter referred to as RIL). In one such application, the Gujarat State
Information Commission (Commission) passed an order on
It is interesting to note that the order dated
In this case, one issue was whether the third party (RIL
here) is entitled (a) to get written notice of request of the applicant (Shri Mardia here) and (b) to get
an opportunity of personal hearing before disclosure of information relating to
or supplied by
the third party and treated
as confidential by it u/s.11(1) read with S. 7(7) of the RTI Act.
All the three parties (i.e., RIL, Shri Mardia and the Commission)
extensively argued on this issue.
The Court first read and reread various provisions of
the RTI Act and of the Gujarat RTI Rules, 2005 viz. S. 2(n), S. 7(1), S.
7(7), S. 8(d), S. 8(j), S. 11(1) to (4), S. 19 and Rule 6.
An interesting issue raised by Shri
Mardia and the Commission was at what point of time
the third party has to treat the information as confidential as referred to in
S. 11(1); can it do so subsequently after the information is recorded or has it
to be prior to or at the point of time the information is supplied or is
prepared and recorded ?
The Court ruled : “Looking
to the provision of S. 11(1) of the Act, 2005, the words, the information relating
to or is supplied by the third party are
such that it is for the third party to point out to the Public Information
Officer that the information sought for, to be disclosed/supplied is treated as
confidential or not. It may happen that when a public body collects the
information relating to or given by third party, it might not have been treated
as confidential, but the third party can make a submission that now it is
treating the said information as confidential. More so, when information is
relating to third party, it may not even be known to that third party, when and
what information relating to third party, was collected by the public body. Therefore,
S. 11(1) of the Act, 2005, gives mandate to the Public Information Officer to give
written notice to third party if he intends to disclose information relating to
third party. Therefore, looking to the nature of information to be disclosed,
third party can make written or oral submission whether the information is
confidential or not and whether the information should be disclosed or not. Efflux
or passage of time, sometimes allows that third party to treat the information
as confidential.
It finally ruled : Whenever
any information sought for is relating to third party or supplied by third party,
as per S. 11(1) of the Act, 2005, and if the Public Information Officer intends
to disclose the information, he has to give notice to the third party. Submissions
can be made by the third party in writing or orally and this submission ought
to be considered by the Public Information Officer, as per S. 7(7) of the Act.
An opportunity of being heard ought to have been given by the Public
Information Officer. There is no express exclusion of hearing process.
Submissions can be made even orally. The Public Information Officer has to
consider these submissions or representations. In view of these provisions, I
am of the opinion that the Public Information Officer should give opportunity
of personal hearing to the third party before imparting information. In the
facts of the present case, no such hearing was ever afforded before imparting
the information relating to the petitioner and, therefore, the orders passed by
respondent Nos. 1, 2 and 4 deserved to be quashed and set aside.
Other News
● RTI Birthday :
12th October is the birth date of RTI. It
completes two years’ glorious existence. It has enhanced transparency at
various levels and reduced the corruption thereat. India’s ranking in
Transparency International’s 2007 corruption perception index improved by two
places vis-à-vis last year, which is attributed to a great extent on
account of the introduction and operation of the RTI Act.
● NCPRI Review of the implementation of the RTI
Act :
National Campaign for Peoples’ Right to Information, the
organisation founded by Smt.
Aruna Roy and others had arranged three-day First
Peoples’ Review of the Implementation of the RTI Act. Based on a questionnaire
issued to RTI activists in various States, a rapid survey was carried out and
the finding presented at this meeting, which was attended by me. One
interesting finding was about six most common constraints identified, some of them
were :
1. Poor awareness
2. Lack of political/bureaucratic will
3. Mindset
Thus, it is very important that we professionals spread
the RTI message more forcefully and extensively to increase the RTI awareness
in the public. The booklet published by BCAS Foundation is towards that
objective.
● RTI working in
It seems that awareness is no doubt increasing in
personally at a one-to-one
meeting and we are assured that action on all suggestions will be taken. As
such,
● Conviction in riots cases :
RTI query revealed that out of 2700 cases filed against
civilians after the riots, there have been convictions in only 13, which means
a 0.05% conviction rate for a group of cases that deals with the killing of 900
people over a period of two months. Of these, in five cases, the only
punishment was fine, in one of them involving a murderous assault, it was a
mere Rs.500. What’s worse, several of the convictions are said to have been
overturned on appeal in higher courts, but this information has not yet been
disclosed by the police. This information was obtained by anti-communalism activist
Teesta Setalvad from the
Mumbai police through the RTI Act.
● Juice stall in Juhu, Mumbai :
Residents of Juhu have used
the RTI Act to expose violations of building rules by a snack and juice outlet
at Irla junction. For the past few years, the residents
have been complaining about the traffic jam near
The stall owner had insisted that he has the permission
to run business like that. All complaints to the civic authorities had gone
unheeded. In response to RTI application, the PIO said that stall owner did not
have such a permission to put chairs on the pavement and cook on the premises
of
● Penalty on PIO :
The State Information Commission has penalized the
PIO, Assistant Registrar of University Institute of Chemical Technology for not
providing information to a blind person. This penalty will definitely act as a
deterrent to erring bureaucrats who withhold information out of vested
interests or due to sheer inefficiency.
● IT Department requested to limit RTI to them :
The Income-tax Department has asked the Department of
Personnel and Training, Government of India to amend the RTI Act to shield
itself from unsolicited queries on its investigations.
The investigation mainly involves search operations to
nab tax evaders. These searches, and any other investigation
activity, usually involves the Department’s trusted network of
informers, whose information is crucial to cases. These informers could get
into trouble if exposed under the RTI Act and could be harassed by the affected
parties, the source said.