CIC has no power to direct disclosure of PM CARES Fund information covered under Income Tax Act as ITD treats it a third party not authority.
In a recent judgment, the High Court has held that PM CARES Fund is a third party not an authority in the eyes of Income Tax Department, CIC has no power to direct disclosure of PM CARES Fund information.
ABCAUS Case Law Citation:
ABCAUS 3844 (2024) (01) HC
Important Case Laws relied upon by parties:
ICSI v. Paras Jain, (2019) 16 SCC 790
Rakesh Kumar Gupta v. Income Tax Appellate Tribunal (ITAT), 2007 SCC OnLine CIC 315
Chief Information Commr. v. High Court of Gujarat, (2020) 4 SCC 702
LIC v. D.J. Bahadur, (1981) 1 SCC 315
G.R. Rawal v. Director General of Income Tax (Investigation), 2008 SCC OnLine CIC 1008
In the instant case, the CPIO/Income Tax Department had approached Hon’ble High Court via a Writ Petition challenging the order passed by the Central Information Commission (CIC), directing the Income Tax Department (ITD) to provide the copies of all the documents submitted in the exemption application and copies of the file notings granting the approval relating to PM CARES Fund under the Right to Information (RTI) application filed by the Respondent.
The said information was denied by the ITD to the Respondent and the Appellate Authority on the ground that the information sought is exempted from disclosure under Section 8(1)(j) of the Right to Information Act, 2005 (RTI Act).
The principle contention amongst others raised in the present Writ Petition was that any information relating to any assessee relating to income tax can be sought for only in the manner prescribed under Section 138 of the Income Tax Act, 1961 (the Act) and not under the RTI Act.
The other argument raised by the ITD was that the information sought for is exempted under Section 8(1)(j) of the RTI Act and in any event since the matter relates to PM CARES Fund, it could not have been disclosed without hearing the PM CARES Fund.
The ITD contended that CIC has not ruled or adjudicated on the question as to what is the public interest involved in the case which would outweigh the protected interest and without adjudicating the said issue, the CIC could not have directed the Petitioner to give the information sought for, more so when the Central Public Information Officer (CPIO), the DCIT (Exemption) and the Appellate Authority have rejected the application of the Respondent on the ground that the information sought is personal in nature.
It was further stated that the CIC has not even gone into the question as to whether the information sought for by the Respondent is personal or not and without deciding the said issue as to whether the information is not personal in nature, thereby the decision of the CPIO and the Appellate Authority is wrong and the CIC ought not to have passed the order which is under challenge in the instant writ petition.
On the other hand, the respondent contended that contends that there is an overwhelming public interest involved in PM CARES Fund. It was stated that the PM CARES Fund has been created to serve the public. Tte PM CARES Fund is a charitable fund which has been established to provide relief to the public during the Covid-19 Pandemic or any similar emergencies. The Income Tax Department approved the applications given by the PM CARES Fund for grant of exemption on Income Tax under Section 80G of the IT Act.
It was argued that the applicant wanted to know the exact procedure followed by the Income Tax Department in granting such a swift approval and to see whether any rules or procedure were by-passed by the Income Tax Department in granting such approvals.
It was stated that the information sought for does not include any personal information.
It was also contended that there is an inconsistency between the provisions of the RTI Act and the IT Act. He states that Section 22 of the RTI Act provides that the RTI Act will have an over-riding effect over any other statute for the time being in force notwithstanding anything contained in Official Secrets Act.
To substantiate his contention, the applicant/respondent placed reliance on the Judgment passed by the Apex Court wherein the person who had approached the authorities under the RTI Act for getting the certified copies of the answer scripts had been denied the said information by the authorities under the RTI on the ground that the Institute of Company Secretaries of India Rules also provide for a procedure for obtaining the answer scripts on payment of fee. The Apex Court, in the said case, rejected the stand of the Institute of Company Secretaries and has held that information can also be given under the RTI Act and it is open for the information seeker to choose either of the available methods to obtain the necessary information by paying the requisite fee prescribed under the procedure under which the information is sought for.
The Hon’ble High Court noted that as per Section 138(1)(b) of the Act, information can be disclosed if in public interest. However, section 138 (2) of the Act has a non-obstante clause which authorised the Central Government to notify non disclosure of some information or document. Also, the RTI Act also has a non-obstante clause in the form of Section 22.
The Hon’ble High Court observed that while the Income Tax Act is a special Act governing all the provisions and laws relating to income tax and super-tax in the country, RTI Act is a general Act which deals with the providing of information to citizens to enable them to realize their Right to Information.
The Hon’ble High Court also noted the provisions of Section 8(1)(j) of the RTI Act which provides for exemptions from disclosure of personal information which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual but for public interest. Further, section 11 of the RTI Act provides for a notice to the third party where the CPIO or the SPIO intends to disclose information supplied by a third party and has been treated as confidential by that third party.
Thus, the question was that in view of the inconsistency between the provisions of the RTI Act and the IT Act, which Act will prevail?
The Hon’ble High Court opined that in the instant case, the IT Act, which is a special Act governing all the provisions and laws relating to income tax and super-tax in the country will prevail over the RTI Act which is in the nature of a General Act.
Applying the ratio laid down by the Hon’ble Supreme Court, the Hon’ble High Court held that the information sought for was clearly covered by Section 138(1)(b) of the IT Act. The satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is, therefore, necessary before such information can be divulged. That satisfaction cannot be abrogated to any other authority under a general Act for divulging the information sought for. Section 138(1)(b) of the IT Act which specifically states that information relating to an assessee can only be supplied subject to the satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as the case may be, would prevail over Section 22 of the RTI Act.
The Hon’ble High Court further observed that the issue raised has been settled by a Bench of three Member Bench of the CIC which upheld the applicability of special law to the exclusion of the general law.
The Hon’ble High Court noted that the ITD does not treat PM CARES Fund as an authority. Since the information sought for was related to a third party, PM CARES Fund ought to have been heard. Section 11 of the RTI Act prescribes that any information related to a third party can only be divulged after giving notice to the said third party. In view of the above, the CIC ought to have followed the procedure specified under Section 11 of the RTI Act before ordering for grant of information.
The Hon’ble High Court held that Section 138(2) of the IT Act would prevail over Section 22 of the RTI Act. It was also held that the CIC does not have the jurisdiction to direct furnishing of information, provided for in Section 138 of the IT Act. In any case, even if they had the jurisdiction, the failure to give PM CARES, notice of hearing, would in itself vitiated the impugned order.
Accordingly, the Writ Petition of the Income Tax Department was allowed.
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