For BCAJ July, 2008

                        Words: 2,935

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  Right to Information

        

 

 Narayan Varma

Chartered Accountant

 

 

 

·          Guidelines on scrutiny of income-tax returns by CBDT

A very interesting and important issue regarding scrutiny policy for the non-corporate assessees and disclosure of instructions, directions and clarifications issued by CBDT on the scrutiny policy came up before CIC. The same is decided by a bench of 3 commissioners.

 

Shri. Kamal Anand of People for Transparency of Sangrur was the appellant. He had sought for a number of information, some were furnished by PIO and AA, and some were denied by holding that the same are exempt u/s. 8(1)(a) of the RTI Act. Hence, the matter came up before CIC. The issue for determination before CIC was:

Whether supply of instructions, directions, clarifications relating to Scrutiny Policy for non-corporate sector could be held to be prejudicial to economic interest of the State and hence could be denied under section 8(1)(a) of the Right to Information Act, particularly when broad parameters of the scrutiny guidelines have already been provided to the appellant?

 

It may be noted that initially this appeal was heard by a single member of the Commission and he had directed the Department of Revenue to have the matter considered by the highest level in the Public Authority and come up to the Commission with the Department’s viewpoints.

 

The Department made the detailed submissions after having been duly considered by the Union Finance Minister and as approved by him. In the submissions, the Department stated that it is of the view that disclosure of scrutiny guidelines adversely affects the economic interest of the State and facilitates committing the offence of tax evasion. Therefore, these should not be disclosed to the public.

 

Three members’ bench after considering the submissions received, held as under:

·        It is certainly within the domain of the concerned Public Authority to decide and determine as to whether disclosure would adversely affect the economic interest of the State or not. The Commission can only look into as to whether the determination by the Department about the probable effect of a particular policy disclosure is based on objective criteria or not or as to whether the Department has arrived at a particular conclusion in a reasoned, or in a mechanical or arbitrary manner. Here is a case where a Public authority at the highest level has analyzed the whole issue at our behest and has given its considered opinion to this Commission about the possible effect of the disclosure on economic interest of the State. We must conclude that the implications of disclosure have been put to the closest scrutiny.

 

The Commission cannot, therefore, enter into the adequacy or otherwise of the criteria taken into account by the concerned Public Authority. It cannot surpass an objective consideration and place its own subjective consideration thereon. When a denial is covered by an

exemption clause under Section 8 of the Right to Information Act, so long as such application of exemption is based on objective criteria and is not arrived at in a mechanical or arbitrary manner, this Commission does not intend to interfere in such issues.

 

Based on the above, the Commission held that denial of information is justified u/s. 8(1)(a) of the RTI Act.

 

[No.CIC/AT/A/2007/00617 :  Shri Kamal Anand v. Central Board of Direct Taxes : 11.02.2008]

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For the information of the readers, section 8(1)(a) reads as under:

8.       Exemption from disclosure of information –  (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, –

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence.

 

         

·      RTI Act vs. Section 138 of the Income-tax Act

Three issues for determination before bench of 3 members of the Central Information Commission were:

1.                 Whether certain information can be provided to the appellant under the RTI Act when Section 138 of the Income Tax Act prohibits disclosure of such information?

2.                 Whether in such a situation the overriding provision as contained in Section 22 of the RTI Act comes into play?

3.                 Whether Section 8(1)(j) of the RTI Act is applicable to the case of the appellant?

 

The application was made by Shri G. A. Rawal of Ahmedabad, who is an informant to get information on “Tax payable as per the decision of Settlement Commission in the case of Winprolene Plastics and tax paid by the said company.” Information sought was denied by holding that the same is prohibited u/s. 8(1)(j) of the RTI Act.

 

DECISION AND REASONS:

·        Both the Right to Information Act, 2005 and Section 138 of the Income Tax Act, 1961 deal with disclosure of information. While Right to Information Act is a general law concerning the disclosure of information by the public authorities, Section 138 of the Income Tax Act is a special legislation dealing with disclosure of information concerning the assesses. This Commission in “Rakesh Kumar Gupta Vs. ITAT”, of 18^th September, 2007 decided by a Full Bench, has dealt with the issue of applicability of special law to the exclusion of the general law. (Note :   This decision was extensively covered in this feature in the BCAJ of November 2007).

 

·          Crucial two terms u/s. 8(1)(j) are “personal information” and “invasion of the privacy”. In the decision, the Commission has analysed the ambit and scope of both the terms.

 

·        The interpretation of Section 8(1)(j) has been the subject of some dispute. The Section deals with excluding from the purview of the RTI Act (a) information of a personal nature which has no relationship to a public activity or interest and (b) whose disclosure would lead to unwarranted invasion of privacy.

 

·        In so far as (b) is concerned, there is very little doubt that there could be a set of information which may be said to belong to the exclusive private domain and hence not be liable to be disclosed. This variety of information can also be included as “sensitive and personal” information as in the U.K. Data Protection Act, 1998. Broadly speaking, these may include religious and ideological ideas, personal preferences, tastes, political beliefs, physical and mental health, family details and so on. 

 

·        But when the matter is about personal information unrelated to public activity, laying down absolute normative standards as touchstones will be difficult. This is also so because the personal domain of an individual or a group of individuals is never absolute and can be widely divergent given the circumstances. It is not possible to define “personal information” as a category, which could be positively delineated; nevertheless it should be possible to define this category of information negatively by describing all information relating to or originating in a person as “personal” when such information has no public interface. That is to say, in case the information relates to a person which in ordinary circumstances would never be disclosed to anyone else; such information may acquire a public face due to circumstances specific to that information and thereby cease to be personal. It is safer that what is personal information should be determined by testing such information against the touchstones of public purpose. All information which is unrelated to a public activity or interest and if that information be related to or originated in person, such information should qualify to be personal information under Section 8(1)(j).

 

·        In so far as the assessment details are concerned, they are definitely  personal information concerning some individual or legal entity. The assessment details if disclosed may result in an undue invasion to the privacy of an individual. Disclosure of such details, therefore, cannot be permitted unless there is an overriding public interest justifying disclosure. But in the instant case, what has been asked for by the appellant in his RTI application is as follows:

“Tax payable as per the decision of the Settlement commission in the case of Winprolene Plastics and tax paid by said company.” 

         

·        Based on above, the Commission directed the CPIO to provide the information within a period of two weeks from the date of the order.

 

[No. CIC/AT/A/2007/00490 dated 05.03.2008 in the matter of Shri G.R.

Rawal vs. Director general of Income Tax (investigation), Ahmedabad]

 

Note :      Section 24 of the RTI Act provides that the Act shall not apply  to

certain organisations. The Second Schedule lists such organisations. Sub-section (2) of section 24 empowers the Central Government to amend the Schedule by including therein any further organisation. It is understood that on 28.03.2008, (may be to undo such decision in future) the notification is issued under which the Directorate General of Income-tax (investigation) is included in the Second Schedule.

 

 

 

Chapter [U1] 6 of the Annual Report 2005-06 as published by the Central Information Commission (CIC) deals with suggestions to Reform by the CIC.

 

·        All stakeholders – citizens, civil society organisations, public authorities and the information commission – have felt that the implementation of the RTI Act has been a mixed experience.

 

·       CIC is of the view that though section 4, requiring the Government to publish all information except that which the law permits to be kept a secret, is the key to the RTI Act, unfortunately, public authorities neglected it the most in 2005-06. Public authorities find themselves too overwhelmed by information seekers to focus their energies on furnishing or even expanding the scope of suo moto disclosures of information. For this exercise to be fruitful, there has to be an attitudinal change.

 

Based on above, CIC suggests that Citizen’s Charters adopted by most public authorities should be made an integral part of Section 4(1)(b) disclosures so that the public is aware of the commitments of a public authority towards it.

 

·       There has been a lot of demand to expand the modes of depositing the fee of making an RTI application. In an effort to do so, the Government recently decided to accept Indian Postal Orders as a mode of payment. The commission would recommend that even a Rs.10 postal stamp affixed to the application should be considered as valid payment of fee for registration of an RTI application. There is also a case for ensuring that rates of fees across the country are made uniform.

 

·       One complaint has been that the beneficiaries of the Act have largely been public officials and the educated urban people and the benefits have not percolated to the poor and the people from the rural areas. This indicates that there is a need on the part of Government to fulfil its obligations under Section 26 of the Act. Public authorities must set aside a specific budget for dissemination of knowledge amongst citizens so that the provisions of the Act can be utilised at all levels of society, through heightened public awareness.

 

·       The Commission feels handicapped about not being able to hold Central PIOs and public authorities accountable for non-implementation of its orders/decisions. To give teeth to its powers, it is essential that the Commission be given powers of contempt of court.

 

·          Provision will need to be made to apply the CIC’s decisions to States with all attendant penalty provisions; to allow State Commissions to refer a matter to the CIC; and to empower the CIC to withdraw a case, which may be before it or a State Commission for appeal.

 

·       The Commission should be empowered, financially and administratively, to allocate funds and undertake suitable research and development activities for the promotion of relevant programmes that are critical for strengthening the information regime, as envisaged in the Act. The Government may set up a Centre for Accountability and Transparency for undertaking activities relating to research in best practices in creating an open access regime and other such related activities that would effectively strengthen the Commission in pursuing its mandate.

 

 

 

·      BCAS appreciated in Loksatta:

 CA Prof. Suresh Mehta has sent a cutting of an article in the Marathi Daily Loksatta in which appreciation is made of the contribution of BCAS in spreading of RTI movement.

 

·        No provisions for flats for definitely abled citizens: 

Vijaya Kalan (37) is partially paralysed and she is a heart patient. But    

what makes her situation worse is the fact that she has to drag herself up and down seven floors from her apartment, whenever there’s is load shedding in her complex at Kharghar.

 

From the reply received in response to RTI application, it is gathered that the CIDCO, that developed the housing complex, has blatantly over-looked the rights of handicapped people. They have not reserved any apartments for them in the housing societies developed since 1995.

 

·        Is the RTI effective in curtailing corruption?:

Ms. Aruna Roy, the mother of the RTI movement in India, is of the view that response of the people has been better than expected. The existing statistics on RTI are based on appeals made to commissioners and do not reflect the real picture. Actually, a much larger number of people ask for information and get it. Media coverage has focused on the use of RTI by urban activists or the controversies that have arisen by denial of information in some cases. On the other hand, in rural areas, in a more routine manner, a lot of information is being sought and obtained regularly to serve very useful purposes such as improving the public distribution system.

 

·          Suppression of information:

Justice Chandrachud, talking about his experience as a judge, said that each time he heard a matter he asked himself “Do I make a difference?” because he did not see the orders being implemented. “We must contemplate the need to incorporate citizens as stake holders and increase the participation of citizens in governance as well as allow experimentation”. One of the greatest problems faced by the judiciary was access to information. There is a deliberate act of suppression of information and the Right to Information Act is performing a valuable function.

 

·        PIO seeking bribe!:

In the first case of its kind after the Right to Information Act was enacted nearly three years ago, the anti-corruption bureau (ACB) has trapped an Ulhasnagar Information Officer and his assistant while they were accepting a bribe.

 

Ulhasnagar resident Gulshan Anand Sachdeo had submitted an RTI application for information on certain plots of land. While the Public Information Officer (PIO) gave him the documents, they were not attested. The PIO and his assistant told Sachdeo that he would have to first pay Rs. 12,000 for things to move.

 

Sachdeo went straight to the Thane ACB deputy commissioner Kishore Jadhav. He named the officer, Raosaheb Govind Bhalerao, and senior clerk Ramchandra Gavit. The ACB told Sachdeo to go back and pretend to hand over the money, which he did. Bhalerao and Gavit were caught in the act.

 

This is the first time an information officer has been caught for asking for a bribe to provide certified documents.

 

·          Power bills of the President of India:

The whole country suffers from the power shortage. However, Rashtrapati Bhavan is always kept brightly lit! Rashtrapati Bhavan has incurred power bills of Rs. 16.71 crore over the past five years, almost doubling from Rs. 2.4 crore in 2003 to Rs. 4.39 crore in 2007.

 

The information on electricity usage in the President of India’s official residence was revealed in a recent RTI reply. In the five-year period from January 2003 to December 2007, Rashtrapati Bhavan consumed 2.69 crore units of electricity. It’s usage rose from 37 lakh units of power in 2003 to 68 lakh in 2007. Last year’s bill of Rs. 4.39 crore was higher than the Rs. 4.02 crore spent in 2006.

 

·          UNDP report, just released, has found that corruption continues to be a crippling problem in countries in the Asia-pacific region:

 

          The report has published three sets of ranking produced by Transparency International, the World Bank and the International Country Risk Guide. While India has improved slightly on Transparency International’s corruption index for 2007, it has done worse or remained static in the other two rankings. This is a worrying trend, which shows that India’s rapid growth over the past few years

hasn’t contributed to a decline in corruption.

 

Under “A THOUGHT FOR TODAY” (June 16) “It is difficult, though not impossible, to stop government officials from hiding their corrupt take.” Editorial in The Times of India writes:

“However, the picture is not entirely gloomy. There are encouraging signs of success in tackling corruption. Right to Information (RTI) laws have had the effect of making governments more accountable. In 1990, there were only 13 countries in the Asia-Pacific with RTI laws. By 2007, the number had risen to 70. In India, RTI, which is considered to be one of the most progressive such legislations in the developing world, has forced government officials to become more transparent.”

 

·        Fight for your Rights:

A new program on Right to Information is being telecast every Saturday at 9 p.m. on NDTV Metro Nation (not NDTV India or Profit or Imagine or other associated channels). It is a one hour long program called ‘Fight for you Rights’. Arvind Kejriwal is the anchor. The first episode was telecast on Saturday, May 17^th. Repeat telecasts can be viewed on Sundays (it is available on the regular cable channel and on Tata Sky DTH. You can access it clicking red button on your remote on NDTV 24*7 channel).

 

 

 

The dates for RTI Clinic in July are 2nd ,3rd & 4th Saturdays, i.e. 12th, 19th and 26th 11.00 a.m. to 13.00 p.m. at BCAS Premises.

 

 

 

 

NV/jj (Sys.3/ RTI-new/(7) July ’08)