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Broad outcome of TEP should be shared as soon as investigation is complete

Central Information Commission
Baba Gangnath Marg, Munirka
New Delhi – 110067
Second Appeal No.:- CIC/CCITD/A/2018/612826-BJ

Mr. Ankit Gupta /Appellant

VERSUS

CPIO & Income Tax Officer
Ward 60 (3), Office of the Income Tax Officer
Room No. 304 B, 3rd Floor, D Block
Vikas Bhawan, New Delhi – 110002… /Respondent

Date of Hearing : 15.05.2019
Date of Decision : 17.05.2019

Date of RTI application 22.11.2017
CPIO’s response 18.12.2017
Date of the First Appeal 25.12.2017
First Appellate Authority’s response 05.01.2018
Date of diarised receipt of Appeal by the Commission Nil

ORDER
FACTS:

The Appellant vide his RTI application sought information on 06 points regarding the action taken by the department on TEP sent by him to the Principal Director of Income-tax (Investigation-1), names and contact details of the officers investigating the Tax Evasion Petition, number of times notices under Section 142(1) and 131 were sent against whom TEPs were filed, etc. The CPIO, vide its letter dated 18.12.2017 denied disclosure of information under Section 8(1)

(h) of the RTI Act, 2005 as the disclosure of information would impede the process of investigation. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 05.01.2018 concurred with the response of the CPIO.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Mr. Ankit Gupta;

Respondent: Mr. Sanjeev Bimbisariye, Asstt. CIT;

The Appellant reiterated the contents of the RTI application and stated that the information sought by him had been wrongly denied by the Respondent under Section 8(1) (h) of the RTI Act, 2005 without any justification. He further alleged that his wife, Ms. Ruchi Aggarwal D/o Mr. Mithan Lal Aggarwal had filed a false / bogus dowry harassment complaint, maintenance under HMA 24 and Criminal Breach of Trust etc., cases against him and his family members under relevant Sections of IPC and Hindu Marriage Act. Several other bogus FIRs had also been lodged against him. A case under Domestic Violence Act, filed by his wife was pending adjudication in the court of MM (Central), Tis Hazari Court. Moreover, he desired this information to prove his innocence in the Court of Law. He further relied on several decisions of the Commission in TEP matters wherein “the Commission had directed the CPIOs to disclose the broad outcome of the TEP to the respective Appellants”. The Respondent reiterated the submissions of the CPIO and stated that consequent upon categorization of the TEP, the investigation was underway.

The Commission was also in receipt of a written submission from the Appellant dated NIL wherein while explaining the background of the case, it was submitted that the CPIO had not specified any reasons for denying disclosure of information as desired in the RTI application. Therefore, it was inter-alia prayed to the Commission to direct the Respondent to conclude the investigation on the TEP within a specified time-frame and provide him the outcome in a time bound manner. In support of his contention, he referred to decision in the case of Katar Singh vs. State of Punjab wherein it was held that “the right to speedy trial is an essential part of Fundamental Right to Life and Liberty”, and the decision of the Hon’ble High Court of Delhi in WP(C) No. 3114/2007 decided on 03.12.2007 and in the case of Bhagat Singh vs. Chief Information Commissioner & Ors., as also the decision of the Commission in the case of Shri Virag R. Dhulia v. Income Tax Department, Kolkata in CIC/LS/A/2009/001179 dated 18.02.2010, Appeal No. CIC/DS/A/2011/003539, CIC/DS/A/2011/000554, CIC/DS/A/2011/000555 dated 19.03.2012, and in Appeal No. CIC/LS/A/2010/000411 in the case of Mohan Lal Sharma Vs. CBDT dated 02.07.2010, Appeal No. CIC/AT/2007/00009 and the decision of the Hon’ble Delhi High Court dated 17.09.2007 in the matter of Shyam Babu Gupta vs. State of Delhi etc. etc. The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:

“information” means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:

“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ……..”

In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:

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35…..

“It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”

Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:

6. “….Under the RTI Act “information” is defined under Section 2(f) which provides: “information” means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”

7. “….the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”

The Commission observed that essentially it was a TEP matter wherein the Appellant was interested to know the broad outcome of the decision taken. In this context, the Commission referred to the decision of Shri Virag R. Dhulia v. Income Tax Department, Kolkata in CIC/LS/A/2009/001179 dated 18.02.2010 had held as under:

“It is to be noted that investigation into a TEP cannot be allowed to go on ad-infinitum and that it should be concluded in a reasonable time frame where after the broad outcome thereof needs to be communicated to the appellant i.e. whether the allegations made in the TEP are fully true, partially true or untrue. No further information needs to be disclosed at this stage.”
This Commission referred to the order dated 18/06/2013 (File No. CIC/RM/A/2012/000926 Sh. Ved Prakash Doda v/s ITO) wherein it was held as under:

“6. It has been the stand of the Commission that in respect of a tax evasion petition, once the investigation is completed, the appellant should be informed the broad results of the investigation, without disclosing any details. The appellant has a right to know as to whether the information provided by him was found to be true or false.”

While relying on the aforementioned decision of the Commission in the matter of Ved Prakash Doda, the Commission in Mohd Naeem Ahmed vs. CPIO, ITO, CRU, New Delhi and CPIO, ITO, Ward 56 (1), New Delhi in CIC/CC/A/2015/004382/BS/10949 dated 29.07.2016 held as under:

“In the matter at hand investigation/assessment is in progress. The CPIO/ITO Ward 56(1) should disclose the broad outcome of the TEP to the appellant as soon as the assessment is completed.”

The aforementioned decision was upheld by the Hon’ble High Court of Delhi in the matter of Mohd. Naeem Ahmed vs. Director of Income Tax and Ors, WP (C) 1112/2018 dated 27.03.2019. The relevant extracts of the order are mentioned hereunder:

“3. Mr. Bharat Bhushan Bhatia, learned counsel appearing for the petitioner, during his arguments stated that he would be satisfied if the petitioner is informed the ultimate outcome of the investigation / assessment. It goes without saying that in terms of the direction of the CIC, the CPIO / ITO of the Ward concerned is / are required to disclose the broad outcome of the TEP to the petitioner herein. There is no reason to disbelieve that they shall not disclose the same after the investigation / assessment is over.

4. Mr. Zoheb Hossain, learned Senior Standing Counsel appearing for the respondents assures the Court that the said procedure shall be followed in this case. Taking the statement on record, I am of the view no further orders are required to be passed in this writ petition”

Moreover, it was observed that the Hon’ble High Court of Delhi in a similar matter in Pr. DIT (Inv) (1) vs. Ashwani Kumar, W.P. (C) 11591/2017 dated 22.12.2017 had stayed the decision of the Commission wherein a direction was issued to the Pr. DIT (Inv) (1) to inform the status of the Petition/Complaint dated 12.02.2016 addressed to PMO, within a period of 30 days from the date of receipt of this order. In the said matter, the Hon’ble High Court had also directed the Department to file an affidavit unequivocally stating that the complaint in question is a matter being investigated by the DGIT (Inv.) and not any other office of the IT Authority.

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The Commission further observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.

The Hon’ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:

“While deciding whether a citizen should or should not get a particular information “which is held by or under the control of any public authority”, the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions.”

Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:

“6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished.”

Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon’ble High Court of Delhi had held as under:

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6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.

7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.

A similar view delineating the scope of the Commission’s jurisdiction was also taken by the Hon’ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.

DECISION:

Keeping in view the facts of the case and the submissions made by both the parties, it was noted that in the matter at hand, the investigation was in progress. However, the broad outcome of the investigation should be disclosed to the Appellant as soon as the investigation is completed.

The Appeal stands disposed accordingly.

(Bimal Julka) 
                                                   (Information Commissioner)
Authenticated true copy





(K.L. Das) 
Dy. Registrar 
011-26182598/ kl.das@nic.in
Date: 17.05.2019

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