Information provided by an individual in fulfilment of statutory requirements is neither covered by the exemption under Section 8 (1)(j) of the RTI Act nor can it be called an unwarranted invasion of his privacy. This is the 39th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), said that given our dismal record of mis-governance and rampant corruption which colludes to deny citizens their essential rights and dignity, it is in the fitness of things that the citizen's right to information is given greater primacy with regard to privacy. Hence, information provided by individuals in fulfilment of statutory requirements will not be covered by the exemption under Section 8 (1)(j). While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, said even if any of the exemption clauses of Section 8 (1) of the Right to Information (RTI) Act were applicable, it certainly serves a larger public interest, if tax evasion is curbed.

Allowing the appeal, the CIC in its order issued on 14 December 2009, said, “The onus to prove that a denial of information was justified is on the Public Information Officer (PIO) as per Section 19(5) of the RTI Act. Though it is not necessary, the appellant has also shown that a larger public interest of increasing public revenue and reducing corruption may be served by disclosure of the information, which would outweigh any harm to any protected interest.”

Delhi resident Rakesh Kumar Gupta sought information from the Commissioner of Income Tax about assessment records of Escorts, Rajan Nanda, Escorts Heart Institute & Research Centre, Dr Naresh Trehan, Big Apple Clothing Pvt Ltd and AAA Portfolio Pvt Ltd. Here are the specifics of information sought by him on 14 January 2009 from the PIO...

All records available with the Income Tax Department including assessment records of all the levels with regard to:

1.       Escorts Limited (assessment year-AY) (1998-99 to 2005-2006)

2.       Mr Rajan Nanda AY (1998-99 to 2005-2006)

3.       Escorts Heart Institute & Research Centre (EHIRC), Chandigarh (Society) AY (2001-2002)

4.       Escorts Heart Institute & Research Centre, Delhi (Society) AY (1998-99 to 2001-2002)

5.       Dr Naresh Trehan AY (1998-99 to 2005-2006)

6.       Escorts Heart Institute & Research Centre Ltd Chandigarh AY (2000-2001 to 2005-2006)

7.       Big Apple Clothing (P) Ltd AY (1998-99 to 2005-2006)

8.       AAA Portfolio (P) Ltd (1998-99 to 2005-2006)

Required:

1.       Inspection of all records in above respect.

2.       Kindly provide the copies of documents mentioned at the time of inspection.

3.       Kindly provide the officers (from assessing officers to CCIT), who are the officers to take action on “Tax Evasion Petition” given by me from 01/08/2008 till date.

The PIO in his reply stated that as the information related to third parties, they were sent notices. “All the third parties, in their reply to the notice objected strongly against the inspection as well as disclosure of information relating to their income tax records. Third parties submitted that the information sought included certain personal documents and details which were part of the Income Tax proceedings and if these details were released, they might have potential to expose the assessee to grave danger from unscrupulous and criminal elements,” he said.

According to the PIO, the applicant (Gupta) was not able to substantiate as to what is the overriding public interest in disclosing the information relating to third parties and unless the case of public interest is established, the disclosure would lead to an invasion of privacy of the assessees.

With the PIO’s refusal to grant information, Gupta then filed his first appeal. The First Appellate Authority (FAA) while upholding the PIO's reasons for refusal to grant the information rejected the appeal. With regards to supply of copies of tax evasion petition (TEPs), the FAA directed the PIO to supply copies along with the action taken thereon.

Gupta said, the information he received from the PIO did not state as to what has been done by the I-T Department on the TEP given by others. He also stated that various TEPs related to Escorts, Rajan Nanda and others were not provided to him. Gupta then approached the CIC with his second appeal.

During a hearing on 18 August 2009, the PIO stated that he was not prepared for the hearing. The Commission also felt that since third parties have objected they should be heard. The Commission decided to adjourn the matter and also asked the respondent to serve the notice on all the third parties and give them copies of all the documents. The hearing was then adjourned to 18th September.

During the hearing on 18 September 2009, PR Rajhans, representative of Dr Naresh Trehan stated that “Disclosure of information to any third party amounts to invasion of privacy as these are personal information furnished to income tax department in course of assessments”.

The PIO stated that “All the assessments were completed on the basis of the information forwarded by the investigation wing and also based on the information claimed to be furnished by the appellant (Gupta) and all these assessments were challenged by the third parties and were pending before different appellate authorities. Logically no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In this context the progress of assessments are therefore exempt from disclosure under Section 8(1)(h).”

When Mr Gandhi, the CIC asked the PIO to give reasons as to how Section 8(1)(h) applies in this case, the PIO stated that “one assessment in the case of EHIRC, Chandigarh Society for the AY 2001-2002 was restored back to an assessing officer by the I-T Appellate Tribunal (ITAT) Chandigarh. Because it is in the initial stages it would impede the process of investigation”. He did not give any explanation how the investigation would be impeded but further claimed exemption under Section 8(1)(e) and (j) of the RTI Act.

Gupta stated that Section 8(1)(j) cannot apply to legal entities and corporates and only applies to individuals. He further stated that Dr Trehan's assessment was revised upwards by Rs14.7 crore at the CIT (Appeal). This was based on information received from an RTI application. The CIT (Appeal) has confirmed the addition of Rs14.7 crore over and above the returned income. But ITAT had restored back the issue to the assessing officer to reassess the income. He also alleged that this addition of Rs14.7 crore was only of book value which only about 20% of the market value.

Asking all parties to send submissions by 23rd September, the CIC adjourned the hearing.

During the hearing on 14 December 2009, the Commission said it received submissions from all parties involved in the case. After perusing the submissions, the Commission said the I-T department and third parties have claimed exemption under Section 8(1)(b), (d), (e), (h), and (j) of the RTI Act. According to the RTI Act, if the information as defined under Section 2(f) is not exempt from disclosure under Section 8(1) or 9 of the Act, and is held by a public authority as defined under 2 (h), it has to be disclosed, the CIC noted.

It said, citizen's right to information can only be restricted, if the disclosure is exempt under Section 8 (1) of RTI Act, 2005.

Section 8(1) (b) of the Act provides-

8.       (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(b) 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;

Four third parties relied on an earlier order of the Commission dated 18 September 2007 in Appeal No CIC/AT/A/2006/00586 to claim that information should not be disclosed to the Appellant. In its earlier order the Commission had referred the matter back to the FAA on the ground that a determination had to be made whether the tribunal had expressly forbidden the disclosure of information or not. In the present case the Department and the third parties have not established before the Commission that there exists an order of any Court or tribunal which forbids the disclosure of the information that has been sought by the Appellant, Mr Gandhi, the CIC noted.

He said, “Since no evidence has been shown that the disclosure of the exemption has been expressly forbidden by any court of law or tribunal, there appears to be no ground for claiming exemption under Section 8 (1) (b).”

Section 8(1) (d) of the Act provides-

8.       (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(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;

The Commission said, the year for which information is sought relates to AY 2005-2006 i.e. financial year ending 2005. “It is extremely unlikely that there would be any information relating to 2005, which if revealed in 2009 could harm the competitive position of any of the third parties. No arguments have been advanced even to justify that the information is one where 'commercial confidence, trade secrets or intellectual property' will get disclosed. In view of this the claim for this exemption has been made without any grounds,” it said.

Section 8(1)(e) of the Act provides-

8.       (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(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;

The I-T department and all the third parties relied on this ground of exemption. For Section 8(1)(e) of the RTI Act to apply there must be a fiduciary relationship and holder of information must hold the information in his fiduciary capacity.

Mr Gandhi noted that an equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the giver. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary, he said.

“In the present case, the information that the appellant is seeking is information which the Department has received from members of the public as a result of their statutory obligation to file tax returns. In fact, as there is a legal obligation to file these returns, members of the public have no choice with regard to the disclosure of this information to the Department. As the Department cannot be considered to be holding the information in a fiduciary capacity, information sought by the Appellant, therefore, cannot be denied on this ground,” the Commission said.

Section 8(1)(h) of the Act provides-

8.       (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

Dr Trehan, one of the third parties, and the I-T department relied on this ground of exemption. Both parties stated that as the process of assessment has not been finalized till date and investigation is still underway, exemption under Section 8(1)(h) applies.

Mr Gandhi, the CIC, said, the mere fact that an investigation is underway and that assessment has not been finalized is not a sufficient ground for the application of Section 8(1)(h).

The Delhi High Court has held in the Bhagat Singh vs CIC and Ors. WP (C) No. 3114/2007 that-

          “It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.”

The PIO contended that logically no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken.

Mr Gandhi noted that neither party was able to establish before the Commission how the disclosure of information to the Appellant would impede the process of investigation. “Therefore, Section 8(1)(h) cannot be applied in the present case to claim exemption from disclosure of information,” he said.

Section 8(1) (j) of the Act provides-

8.       (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(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 Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

The final exemption claimed by the I-T department, Dr Trehan and three other third parties, EHIRC-Chandigarh, EHIRC-Delhi and EHIRC was under the Section 8(1)(j) of the RTI Act.

Section 8(1)(j) is with regard to personal information and therefore it can only be claimed by natural persons and not by corporate entities. “Section 8(1)(j) cannot be applied when the information concerns institutions, organisations or corporates. Therefore, the Commission is of the opinion that Section 8(1)(j) cannot be relied on by these three third parties as they are not natural persons,” the CIC said.

Rajhans, the representative of Dr Trehan, alleged that the information being sought with ill will and malice, with the motive to harass and blackmail the assessee. “Furthermore, the appellant (Gupta) is likely to misuse the information and could endanger the life and property of the assessee if the information goes in the hands of unsocial elements. There is no larger public interest served in disclosing this information to the appellant,” Rajhans alleged.

The CIC considered the submissions made by both, the representative of Dr Trehan and Gupta. It said to quality for the exemption, claimed by Dr Trehan, the information must satisfy following criteria...

                1.      It must be personal information.

CIC- There is no doubt that information with regard to Dr Naresh Trehan is personal information.

2.      It must not have been disclosed to the public authority as part of a public activity

CIC- Information provided by an assessee to the I-T department for purposes of income tax assessment is information disclosed in relation to a public activity and therefore, this part of Section 8(1)(j) is inapplicable in the present case.

3.      The disclosure of the information would lead to unwarranted invasion of the privacy of the individual.

CIC- The concept of ‘privacy’ is a cultural notion, related to social norms, and different societies would look at these differently. Therefore referring to laws of other countries to define ‘privacy’ cannot be considered a valid exercise to constrain the Citizen's fundamental Right to Information in India.

“Where the State routinely obtains information from the citizens, this information is in relationship to a public activity and will not be an intrusion on privacy. As this information has been provided by the assessee to meet his legal obligations, there is no unwarranted invasion of his privacy by the state. Therefore, the disclosure of the same information to another person cannot be construed as being an unwarranted invasion of the privacy of the individual,” Mr Gandhi said.

The Commission noted that during the hearing and through submissions it had come out that Gupta was the informer of the I-T department. Escorts also raised the matter in its written submissions of 17 September 2009, and asked the Commission to decide “Whether an informer of the I-T department can seek information in respect of the records of a third party for an ulterior motive?”

Gupta, then gave a list of additions made by various tax evasion officers relating to the information being sought by him:
 

Escorts Ltd –Page k-5 & k-7

Rajan Nanda - Page K-12 of Letter dated 22/9/2009

Escorts Heart Institute & Research Centre, Chandigarh Page k -10

Escorts Heart Institute & Research Centre, Chandigarh (Society)- Page K 12

Escorts Heart Institute & Research Centre Ltd, Chandigarh Page K-11 of Letter dt 22/9/2009

Escorts Heart Institute & Research Centre, Delhi ( Society)

Dr Naresh Trehan Page K-9 of Letter dated 22/9/2009

Big Apple Clothing (P) Ltd Page K-13  of Letter dated 22/9/2009

AAA Portfolio (P) Ltd Page K-14  of Letter dated 22/9/2009

Gupta, during the hearing also pointed out that Assessing Officers (AOs) have added hundreds of crores as additional income and CIT (A) has also confirmed some of them. He feared that a lot of alleged tax evasion would go unpunished leading to a loss of revenue and perhaps his reward money.

The Commission noted that it has been statutorily provided that informers to the I-T department would be rewarded and hence the State has recognized that the informer, who gives information about tax evasion, is valued and needs to be rewarded to motivate and recognize the contribution of the informer.

“....if the appellant is assisting the I-T department by bringing instances of tax evasion to its notice, and if he is using information that he has received through RTI Applications for this purpose, it cannot be considered to be misuse of information in any way, nor can it be considered to be an unwarranted invasion of privacy of the assessee. In that case, even if any of the exemption clauses of Section 8 (1) were applicable, it certainly serves a larger public interest, if tax evasion is curbed,” Mr Gandhi said.

He said the arguments raised by Dr Trehan that the RTI application is motivated by ill-will and malice, with the motive to harass and blackmail the assessee are unfounded because a public interest is served if tax evasion is curbed.

“...no harm can be caused to the privacy of Dr Trehan in this case because the assessing authority in this case has already confirmed that in some cases tax has been evaded. The contention that the Appellant is likely to misuse the information and could endanger the life and property of the assessee also cannot be accepted,” the Commission said.

The Commission concluded that no case has been made showing that any of the exemption clauses apply to the information sought by the appellant. It then directed the PIO to provide the inspection of the records and also the other information sought by the appellant before 15 January 2009 besides sending a copy of the order to the third parties immediately.

CENTRAL INFORMATION COMMISSION

Decision No. CIC/LS/A/2009/000647/SG/5887

https://ciconline.nic.in/cic_decisions/SG-14122009-32.pdf

Appeal No. CIC/LS/A/2009/000647

Appellant                                            : Rakesh Kumar Gupta,

                                                            Delhi 110088

Respondent                                                 : The Public Information Officers

                                                            C/o Commissioner of Income Tax

                                                            CIT (Central)-2, Room No. 341

                                                             E-2, ARA Centre, Jhandewalan Ext.,

                                                             New Delhi-110055