Right to Information is a fundamental right – Income Tax Department to furnish information sought within two weeks – serious note taken of lackadaisical approach of Department in releasing information : Delhi High Court

THE facts:

The petitioner was married in 2000 to Smt. Saroj Nirmal. In November 2000 she filed a criminal complaint alleging that she had spent/paid as dowry an amount of Rs. Ten Lakhs . Alleging that these claims were false, the Petitioner, with a view to defend the criminal prosecution launched against him, approached the Income Tax Department with a tax evasion petition ( TEP ) dated 24.09.2003. Thereafter, in 2004 the Income Tax Department summoned the Petitioner’s wife to present her case before them. Meanwhile, the Petitioner made repeated requests to the Director of Income Tax (Investigation) to know the status of the hearing and TEP proceedings. On failing to get a response from the second and third Respondents, he moved an application under the Act in November, 2005. He requested for the following information:

(i) Fate of Petitioner’s complaint (tax evasion petition) dated 24.09.2003 . (ii) What is the other source of income of petitioner’s wife Smt. Saroj Nimal than from teaching as a primary teacher in a private school ?

(ii) What action the Department had taken against Smt. Saroj Nimal after issuing a notice u/s 131 of the Income -tax Act, 1961, pursuant to the said Tax Evasion Petition.

The application was rejected by the second Respondent (the Public Information Officer, designated under the Act by the Income Tax department) on 10th January 2006 under Section 8 (1) of the Act, by reasoning that the information sought was personal in nature, relating to dowry and did not further public interest.

The petitioner, thereafter, appealed to third Respondent- the Appellate Authority which too rejected his request to access the information. While doing so, not only did he reiterate section 8(1 )( j) as a ground for rejection but also observed that the information sought could also be denied under Section 8 (1)(h), 5. Against the order of the Appellate Authority, the petitioner filed a second Appeal on 1st March, 2006, before the Respondent No.1 , the Central Information Commission praying for setting aside the Orders of Respondent No.2 & 3. The petitioner sought the following reliefs:

a) issue directions to Respondent No.2 & 3 to furnish information,

b) to order an inquiry against Respondent’s No. 2 & 3 for not implementing the Right to Information Act properly

c) to impose penalties and disciplinary action against Respondent No.2 & 3 under Section 20 of the RTI Act and

d) to award cost of proceedings to be recovered from Respondent No.2&3 .

The CIC , on 8th May 2006 allowed the second appeal and set aside the rejection of information, and the exemption clause 8(1) (j) cited by Respondents No.2&3 . The CIC further held that-

” as the investigation on TEP has been conducted by DIT (Inv), the relevant report is the outcome of public action which needs to be disclosed. This, therefore, cannot be exempted u/s 8(1) (j) as interpreted by the appellate authority. Accordingly, DIT (Inv) is directed to disclose the report as per the provision u/s 10(1) & (2), after the entire process of investigation and tax recovery, if any, is complete in every respect.”

In August 2006 the petitioner filed a contempt petition before the CIC for non compliance of order dated 8th May 2006. Pursuant to this, the CIC asked the second and third respondent to take necessary action. The Petitioner also wrote a letter to the Chief Information Commissioner, seeking his indulgence for compliance of impugned order dated 8th May 2006. Pursuant to this, the first Respondent issued a notice to the other Respondents asking for comments with respect to non-compliance of the order and to show cause as to why a penalty should not be imposed as per Section 20 of the Act. On 15th February, 2007, the Petitioner again appealed to the first Respondent requesting him to impose penalties on the concerned officer of Income Tax Department (Investigation) for non compliance of the order of the Central Information Commission.

The Right to Information is a fundamental right. The High Court observed,

a) This right, to information, was explicitly held to be a fundamental right under Article 19(1) (a) of the Constitution of India for the first time by Justice KK Mathew in State of UP v. Raj Narain .

b) This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.

c) The Act is an effectuation of the right to freedom of speech and expression.

d) In an increasingly knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power. Information, more than any other element, is of critical importance in a participatory democracy.

e) By one fell stroke, under the Act, the maze of procedures and official barriers that had previously impeded information, has been swept aside.

f) The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act.

g) As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.

Coming to the present case, the High Court observed,

“the orders of the three respondents do not reflect any reasons, why the investigation process would be hampered. The direction of the CIC shows is that the information needs to be released only after the investigation and recovery in complete. Facially, the order supports the petitioner’s contention that the claim for exemption made by respondent Nos. 2 and 3 are untenable. Section 8(1) (j) relates only to investigation and prosecution and not to recovery. Recovery in tax matters, in the usual circumstances is a time consuming affair, and to withhold information till that eventuality, after the entire proceedings, despite the ruling that investigations are not hampered by information disclosure, is illogical. The petitioner’s grouse against the condition imposed by the CIC is all the more valid since he claims it to be of immense relevance, to defend himself in criminal proceedings. The second and third respondents have not purported to be aggrieved by the order of CIC as far as it directs disclosure of materials; nor have they sought for its review on the ground that the CIC was misled and its reasoning flawed. Therefore, it is too late for them to contend that the impugned order contains an erroneous appreciation of facts. The materials available with them and forming the basis of notice under the Income Tax act is what has to be disclosed to the petitioner, i.e the information seeker.”

As to the issue of whether the investigation has been complete or not, the High Court found that the authorities have not applied their mind about the nature of information sought. As is submitted by the Petitioner, he merely seeks access to the preliminary reports investigation pursuant to which notices under Sections 131, 143(2), 148 of the Income Tax have been issued and not as to the outcome of the investigation and reassessment carried on by the Assessing Officer. As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assesse , the respondents could not have rejected the request for granting information. The CIC , even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made.

So the High Court set aside the order of the CIC in so far as it withholds information until tax recovery orders are made and directed the Income Tax authorities to release the information sought, on the basis of the materials available and collected with them, within two weeks.

 The Court took a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued.

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