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Central Board Of Direct Taxes Vs. Satya Narain Shukla
March, 23rd 2018
            THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Judgment delivered on: 19.02.2018

+       W.P.(C) 5547/2017 & CM No. 23333/2017
CENTRAL BOARD OF DIRECT TAXES                               ..... Petitioner
                           versus
SATYA NARAIN SHUKLA                                         ..... Respondent
Advocates who appeared in this case:
For the Petitioner   :      Mr Ruchir Bhatia, Senior Standing Counsel
                            with Mr Gurpreet Shah Singh, Dy. CIT
                            (O&D), CBDT.
For the Respondent   :      Respondent in person.

CORAM:-
HON'BLE MR JUSTICE VIBHU BAKHRU
                                JUDGMENT
VIBHU BAKHRU, J

1.      The petitioner (hereafter ,,CBDT) impugns an order dated 29.05.2017
(hereafter ,,the impugned order) passed by the Central Information
Commission (hereafter ,,the CIC) in a second appeal preferred by the
respondent under Section 19(3) of the Right to Information Act, 2005
(hereafter ,,the Act).

2.      By the impugned order, the CIC has, inter alia, directed disclosure of
the information sought by the respondent and photocopies of responses
received from Director Generals of Income Tax (DGs) to CBDTs letter
dated 11.08.2015. According to CBDT, the said information is excluded
from the scope of the Act as it emanates from the Directorate General of
Income Tax (Investigation).         The said office is placed in the Second




W.P.(C) 5547/2017                                                   Page 1 of 8
Schedule of the Act and, thus, any information received from the said office
is excluded from the purview of the Act by virtue of Section 24(1) of the
Act. CBDT also claims that the said information is exempt from disclosure
under the provisions of Section 8(1)(h) of the Act.

3.      Briefly stated, the relevant facts necessary to consider the aforesaid
controversy are as under:-

4.      The respondent filed an application dated 16.11.2015 seeking the
following information under the Act:-

          "(1) Photocopies of the letters no. F. No. 282/4/2012-IT(Inv)
               dated 1.10.2013 and No. 282/04/2012-IT(Inv. V)/140
               dated 9.7.2015.
           (2) Photocopies of the responses received from the DGs to
               the letter No. 282/4/012-IV (Inv. V)/192 dated
               11.08.2015 from Shri Rajat Mittal, Under Secretary
               (Inv. V) CBDT."
5.      The Central Public Information Officer (CPIO) of CBDT responded
to the petitioners application by a letter dated 28.12.2015. He did not
provide the photocopies of the letters as sought for at point no.1 but briefly
indicated the contents of those letters. Insofar as the information sought at
point no.2 is concerned, the CPIO responded as under:-

         "Since, the matter is under investigation, hence under the
         provisions of Section 8(h) of RTI Act, 2005 (Information
         which would impede the process of investigation or
         apprehension or prosecution of offenders) information cannot
         be provided at this stage."
6.      Aggrieved by the response of the CPIO, the respondent preferred an
appeal under Section 19(1) of the Act before the First Appellate Authority








W.P.(C) 5547/2017                                                  Page 2 of 8
(hereafter ,,the FAA). The said appeal was disposed of by an order dated
11.02.2016, whereby the FAA directed the CPIO to provide photocopies of
the relevant letters as requested by the respondent as per point no.1 of his
application. In respect of the respondents request for responses received
from the DGs to the letter dated 11.08.2015 is concerned, the FAA upheld
the CPIOs decision that the said information was exempt under the
provisions of Section 8(1)(h) of the Act and, therefore, could not be
provided at that stage. However, the FAA directed the CPIO to convey the
outcome of the investigations once the same are concluded.

7.      Aggrieved by the decision of the FAA rejecting the request for
furnishing the responses received from the DGs, the respondent preferred a
second appeal before the CIC. The said appeal was allowed by the impugned
order and the CPIO was directed to supply the information sought for by the
respondent.

8.      The controversy relates to the verification of the affidavits filed by the
Members of Parliament (MPs) and Members of Legislative Assembly
(MLAs) disclosing their assets to the Election Commission. The respondent
had submitted a list of MPs and MLAs whose assets have allegedly
increased more than fivefold after the previous election (that is, during the
term of their office as elected representatives after the previous election).

9.      The said list of MPs and MLAs were forwarded to the DGs for
verification. By a letter dated 11.08.2015, the following instructions were
issued to the DGs with regard to the list of MPs and MLAs provided by the
respondent:-




W.P.(C) 5547/2017                                                     Page 3 of 8
        "The undersigned is directed to convey that any such case,
        featuring in the list that is yet to be verified, should be got
        verified urgently. A comprehensive report of the verifications
        done as per guidelines fixed by the Board may also be
        provided, if not done earlier. The report may be submitted
        within a month from the date of this letter in the annexed
        proforma. It is requested that the "Brief outcome" column must
        sufficiently record the outcome and the suggested course of
        action."

10.     The learned counsel appearing for CBDT submitted that CBDT could
not be compelled to provide the photocopies of responses received from the
DGs because: (i) the information sought for is exempted from disclosure by
virtue of Section 8(1)(h) of the Act; and (ii) that any information from
Directorate General of Income Tax (Investigation) is excluded from the
purview of the Act by virtue of Section 24(1) of the Act.

11.     Section 8(1)(h) of the Act 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

        xxxx               xxxx                xxxx           xxxx

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

12.     It is clear from the above that only such information which would (i)
impede the process of investigation; (ii) impede the apprehension or
prosecution of offenders, is exempted from disclosure by virtue of Section
8(1)(h) of the Act. In the present case, there is no material to indicate that
any investigation is being conducted, which would be impeded by disclosure




W.P.(C) 5547/2017                                                 Page 4 of 8
of the information sought for by the respondent. It is stated by CBDT that
the Election Commission of India forwards the affidavits submitted by MPs
and MLAs disclosing their assets for verification to CBDT. Such affidavits
are forwarded by CBDT to the Directorate General of Income Tax
(Investigation) for verification and the outcome of such verification is
shared directly by the Directorate General of Income Tax (Investigation)
with the Election Commission of India.

13.     The petitioner further states that the verification exercise carried out
by the Directorate General of Income Tax (Investigation) is only indicative
in nature and any further action proposed under the Income Tax Act, 1961
has to be followed up by an assessment order, which is passed by the
concerned assessing officers.       The verification affidavits filed by the
candidates cannot be equated with an investigation as referred to in Section
8(1)(h) of the Act. The process of investigation as contemplated under
Section 8(1)(h) of the Act is one in the nature of a probe and an inquiry.
Clearly, verification from records cannot be termed as an "investigation".

14.     Even if, it is assumed that the verification being conducted by the
Directorate General of Income Tax (Investigation) is in the nature of an
investigation, the same is no ground for denial of information. Only such
information which impedes the process of investigation can be denied.
Thus, it would be necessary for the CPIO to specify the CIC that: (a) the
investigation was conducted or was proposed; and (b) the information
sought would impede the process of investigation. It is apparent that in the
present case, these conditions are not met. First of all, there is no assertion
that any process of investigation is under way; and secondly, there is no




W.P.(C) 5547/2017                                                   Page 5 of 8
material to indicate that disclosure of the information as sought would
impede any such investigation.

15.     The suggestion that the expression "process of investigation" includes
within its ambit an assessment proceedings resulting in the assessment order
is plainly unmerited. The assessment proceedings merely relate to scrutiny
of the Income Tax Returns and an assessment income on tax payable by an
assessee. Plainly, such proceedings do not take the colour of investigation.

16.     The next question to be addressed is whether the information sought
for by the respondent is excluded from the purview of the Act.

17.     Section 24(1) of the Act reads as under:-

        "24. Act not to apply to certain organizations.­ (1) Nothing
        contained in this Act shall apply to the intelligence and
        security organisations specified in the Second Schedule, being
        organisations established by the Central Government or any
        information furnished by such organisations to that
        Government:
        Provided that the information pertaining to the allegations of
        corruption and human rights violations shall not be excluded
        under this sub-section:

        Provided further that in the case of information sought for is in
        respect of allegations of violation of human rights, the
        information shall only be provided after the approval of the
        Central Information Commission, and notwithstanding
        anything contained in Section 7, such information shall be
        provided within forty-five days from the date of the receipt of
        request."

18.     A plain reading of Section 24(1) of the Act indicates that the
provisions of the Act would not be applicable to Intelligence and Security




W.P.(C) 5547/2017                                                   Page 6 of 8
Organizations as specified in the Second Schedule. Further, any information
received from such organizations falls under the exclusionary clause of
Section 24(1) of the Act. CBDT is not one of the offices, public
organizations which are specified under the Second Schedule; but, the
Directorate General of Income Tax (Investigation) is. Thus, any information
received from the Directorate General of Income Tax (Investigation) by any
Public Authority would also fall within the exclusionary provisions of
Section 24(1) of the Act. Indisputably, the information sought for by the
respondent emanates from the Directorate General of Income Tax
(Investigations) (various DGs who have called upon to submit a
comprehensive report of verification). Thus, CBDT would be justified in
denying such information to the respondent.

19.     It was also contended by the respondent that since the information
sought for by him related to allegations of corruption, the same falls within
the exception to the exclusionary clause of Section 24(1) of the Act. The
respondent is correct that by virtue of the first proviso to Section 24(1) of
the Act, all information pertaining to allegations of corruption and human
rights violations falls within the exception to Section 24(1) of the Act. In
other words, notwithstanding that such information emanates from any of
the organizations as specified under the Second Schedule of the Act, it is not
excluded from the purview of the Act.






20.     However, in the present case, it is difficult to accept that the
information sought by the respondent pertains to allegations of corruption,
as no such allegations have been made at any stage. The respondent had
merely highlighted that the net wealth of certain MLAs and MPs had




W.P.(C) 5547/2017                                                 Page 7 of 8
increased fivefold and the respondent had sought verification of the same in
order to bring about a higher level of transparency. No specific or general
allegations of corruption were advanced by the respondent.

21.     Thus, it is not possible to accept that the information as sought for by
the respondent falls within the purview of the Act even though it emanates
from the organization which is placed in the Second Schedule.

22.     In view of the above, the order passed by the CIC cannot be sustained
and is, accordingly, set aside. However, it is clarified that in the event any
citizen was to make an allegation of corruption, the information as sought by
the respondent would not be excluded from the scope of the Act.

23.     The petition and the pending application are disposed of. The parties
are left to bear their own costs.




                                                     VIBHU BAKHRU, J
FEBRUARY 19, 2018
RK




W.P.(C) 5547/2017                                                   Page 8 of 8

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