Vinubhai Haribhai Patel ... vs Assistant Commissioner Of Income ...
2021 Latest Caselaw 1162 Guj

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/LETTERS PATENT APPEAL NO. 1169 of 2016
                                 In
             R/SPECIAL CIVIL APPLICATION NO. 7187 of 2014
                                With
        CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2017
                                 In
              R/LETTERS PATENT APPEAL NO. 1169 of 2016
                                With
        CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 2 of 2017
                                  In
              R/LETTERS PATENT APPEAL NO. 1169 of 2016
                                With
            CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2016
                                 In
              R/LETTERS PATENT APPEAL NO. 1169 of 2016


FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE VINEET KOTHARI                                              Sd/-

and

HONOURABLE MS. JUSTICE GITA GOPI                                                   Sd/-
==========================================================

1     Whether Reporters of Local Papers may be allowed to                           Yes
      see the judgment ?

2     To be referred to the Reporter or not ?                                       Yes

3     Whether their Lordships wish to see the fair copy of the                      Yes
      judgment ?

4     Whether this case involves a substantial question of law                      Yes
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
                VINUBHAI HARIBHAI PATEL (MALAVIA)
                              Versus
         ASSISTANT COMMISSIONER OF INCOME TAX & 7 other(s)
==========================================================


                                         Page 1 of 21

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 C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021



Appearance:
MR NM KAPADIA(394) for the Appellant(s) No. 1
for the Respondent(s) No. 4
ADVOCATE NOTICE SERVED(81) for the Respondent(s) No. 5,6
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 8
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 7
==========================================================

 CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
        and
        HONOURABLE MS. JUSTICE GITA GOPI

                                    Date : 27/01/2021
                                   ORAL JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. This Letters Patent Appeal is directed against the order of

learned Single Judge dated 16.7.2015 whereby the learned Single

Judge was pleased to dismiss Special Civil Application No.7187 of

2014 filed by the Petitioner - Appellant Mr. Vinubhai Haribhai

Patel (Malavia), Surat against the concerned authorities of the

Income Tax Department under the Right to Information Act, 2005

('the RTI Act' for short) and the private parties - Respondent

Nos.4 to 8.

2. The learned Single Judge held that the Petitioner is not

entitled to get the information in the form of his Income Tax

Returns, Status of Agriculturists, disclosure as Business Income or

not etc. and from the concerned Authorities of the Income Tax

Department under provisions of the RTI Act with respect to

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

private Respondent M/s. Tarunkumar Kantilal Raval and others

with whom the present Petitioner has some litigation with regard

to the land in question, which the Petitioner claims to have

purchased and was again sold by the same Seller in favour of

private Respondents also who claimed to be the Agriculturists

under a Will. The Petitioner came before the learned Single Judge

in the writ petition filed by him that it was a fraud played by the

private Respondents upon the Revenue Authorities of the State

Government and therefore, it was in the larger public interest to

disclose the said 'information' to the Petitioner notwithstanding

Section 8(1)(j) of the RTI Act.

3. The Petitioner challenged various orders passed by the

concerned Authorities of the Income Tax Department acting

under provisions of the RTI Act and came after exhausting the

remedies available to him under the said RTI Act before the

learned Single Judge.

4. We have heard Mr. N.M. Kapadia, learned counsel for the

Appellant at length, who took us to the various documents and

the impugned orders and the provisions of the RTI Act as well as

relevant provisions of the Income Tax Act, 1961 and certain case

laws to support his contention that the Petitioner was entitled to

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

such 'information' from the Income Tax Department, as it was in

larger public interest to disclose such 'information' to the

Petitioner as the Respondents have not only evaded the income

tax by making wrong disclosure about their status of being

Agriculturists and therefore, even though the information

disclosed to the Income Tax Department by such private

Respondents might amount to 'personal information', still it was

in the larger public interest to disclose such 'information' to the

Petitioner. The learned Single Judge, however, dismissed the

aforesaid contentions with the following observations, which we

quote for ready reference:

"6. Now, turning to the facts of the present case, it is evident that the kind and nature of the information demanded by the petitioner clearly falls within the expression "personal information". The personal character of the information demanded in the nature of Income­Tax Returns of the private parties to get disclosure about the payment of tax by them which was again in order to know about their status as agriculturists declared to be so by the authorities in the legal proceedings, could be indeed said to be personal.

It was in the background of litigation between the petitioner and the said private persons relating to their property rights wherein the Will in favour of private parties was disputed and the disputes of civil nature

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

were being agitated before the forum concerned and the court. This information being personal in nature, could not be claimed as a matter of right by the petitioner, rather they were clearly exempted information under Section 8(1)(j). The contention of larger public interest justifying the disclosure does not exist. In disclosing the said information asked for by the petitioner relating to the private parties, there was no element of public interest to be sub­served. The information was personal information relating to third parties. The attendant facts and circumstances and the litigation between the petitioner and those parties, instead indicated that the information was personal information which was asked for by the petitioner for his own personal interest and private purpose. Respondent No.3­Central Information Commissioner was eminently justified in taking a view that there was no public interest present in the information claimed to be supplied, rightly denying the same by dismissing the appeal.

7. Lastly but importantly, dealing with the contention raised on behalf of the petitioner that the impugned order passed by the Central Information Commission was an unreasoned order, and therefore the same was required to be set aside, it was not possible to countenance the same. It is correct to view the impugned order as one not providing reasons or to perceive it to be a cryptic or an unreasoned order.

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

7.1 An order which discloses a reason, may be a oneline reason, is a reasoned order. If the reason supplied by the authority for its decision answers the issue, howsoever short it may be, it would satisfy the requirements of being a speaking order. Where an application of mind is disclosed and a conclusion is supported in certain credible and convincing way, it amounts to supplying reasons. An order which is communicative for the ground on which it is based can be said to be a speaking order and a reasoned order. It is the vitality of the reasons supplied, and not the verbosity in the reasons narrated, that matters. The impugned order mentions that in the petitioner's case, no larger interest was shown, therefore as held by the Supreme Court in Girish Ramchandra Deshpande (supra), in view of the provisions of section 8(1)(j) of the Act, the information was exempt from disclosure. This order can be hardly characterized as an unreasoned order, much less a cryptic order. When the order in question supplies and communicates a ground that the decision taken is based on the ratio of the decision by the Apex Court decision, it would be a good, adequate and wholesome reasoning. Such order can be said to be eminently a reasoned order.

8. Learned advocate lastly requested that this Court may at least make certain observations that the revenue authorities before whom the proceedings are pending, may ask the respondents to produce the

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

documents. The request is hardly deserves to be acceded. No such observation can be made in the present proceedings. The prayer is not only not justified, but it is beyond the scope of the subject matter of the present petition. Lastly, it was submitted by learned advocate for the petitioner that he wanted to restrict his prayer for seeking information limited to certain documents and that in view of limited prayer restricted in the information, the court may direct the information authorities to supply such information. This request again cannot be accepted. If the petitioner wants certain documents and information independently, it is always open to take recourse to the relevant provisions of the Right to Information Act, 2005 by applying before the competent authority and pursue his request for getting such information in accordance with law.

9. For the foregoing reasons and discussion, petition deserves to be dismissed at the threshold. Accordingly this petition stands dismissed summarily."

5. None has appeared on behalf of the private Respondents

despite service and though we had directed Mr. Manish M. Bhatt,

learned Senior Standing Counsel for Income Tax Department to

put an appearance vide our order dated 6.1.2021, but none has

appeared on behalf of the Income Tax Department also.

Therefore, we have heard Mr. N.M. Kapadia, learned counsel for

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

the Appellant - Petitioner.

6. Having heard learned counsel for the Appellant - Petitioner,

we are satisfied that the order of the learned Single Judge does

not require any interference in the present intra­Court appeal

and the same being without merit deserves to be dismissed. The

reasons are as follows.

7. The scheme of the RTI Act which was enacted for the

avowed purpose to ensure greater and more effective

transparency in public domain and to make Indian democracy

more progressive, participative and meaningful has its own

checks and balances in the said enactment. This Act has had

operational life so far as for about 15 years and has enured to the

benefit of many, while the object of transparency and disclosures

have kept many ills in the society under a check.

8. The Applicant - Petitioner in the present case firstly sought

to emphasise that Section 6(2) of the RTI Act does not require any

reasons to be given in the Application requesting for the

information except those that may be available with him and

necessary for contacting him. This, in the submission of the

learned counsel for the Applicant - Petitioner, gives a larger

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

latitude and platform to the Applicant under the said Act. The

procedure for disposal of such request and application provided

in Section 7 of the RTI Act, while the other provisions of remedial

nature for further appeal, etc. are contained in Chapter 5

containing Sections 18 to 20 of the RTI Act.

9. Presently, we are not much concerned with the other

provisions of the RTI Act, except Section 8 of the RTI Act, which

has been referred and relied upon not only by the Applicant -

Petitioner but also by the Respondent Authorities who have

passed the impugned orders. Section 8 of the RTI Act, which

provides for exemption from disclosure of information with its

non­obstante clause, is quoted below for ready reference:

"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;

(b) information which has been expressly forbidden to be published by any court of law or tribunal or

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

the disclosure of which may constitute contempt of court;

(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign government;

(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

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

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

permissible in accordance with sub­section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

(3) Subject to the provisions of clauses (a), (c) and (i) of sub­section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:

Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act."

10. Before we embark upon other arguments raised by learned

counsel, we find it relevant to also quote Section 138 of the

Income Tax Act, 1961, which talks about 'Disclosure of

Information respecting Assessees'. The said provision is also

quoted hereinbelow for ready reference:

"138. Disclosure of information respecting assessees.

(1)(a) The Board or any other income­ tax authority

specified by it by a general or special order 7 in this

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

behalf may furnish or cause to be furnished to -

(i) any officer, authority or body performing any functions under any law relating to the imposition of any tax, duty or cess, or to dealings in foreign exchange as defined in section 2 (d) of the Foreign Exchange Regulation Act, 19478 (7 of 1947 ); or

(ii) such officer, authority or body performing functions under any other law as the Central Government may, if in its opinion it is necessary so to do in the public interest, specify by notification 9 in the Official Gazette in this

behalf, any such information 10 received or obtained by any income­ tax authority in the performance of his functions under this Act], as may, in the opinion of the Board or other income­ tax authority, be necessary for the purpose of enabling the officer, authority or body to perform his or its functions under that law."

        (b)     Where a person makes an application to the
        Chief      Commissioner            or    Commissioner]              in     the

prescribed form for any information relating to any

assessee 3 received or obtained by any income­ tax authority in the performance of his functions under this Act], the Chief Commissioner or Commissioner] may, if he is satisfied that it is in the public interest so

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

to do, furnish or cause to be furnished the information asked for and his decision in this behalf shall be final and shall not be called in question in any court of law.

(2) Notwithstanding anything contained in sub­ section (1) or any other law for the time being in force, the Central Government may, having regard to the practices and usages customary or any other relevant factors, by order notified in the Official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order."

11. The learned Single Judge also has relied upon the decision

of the Hon'ble Supreme Court of India in the case of Girish

Ramchandra Deshpande vs. Central information Commissioner

and others [(2013) 1 SCC 212], wherein in paras 11 and 12 of the

judgment, the Hon'ble Supreme Court has categorically laid

down that the 'information' about Income Tax Returns amounts

to 'personal information' within the meaning of Section 8(1)(j) of

the RTI Act .

12. The overriding factor which enables such information to be

disclosed notwithstanding the exemption under Section 8 of the

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

RTI Act appears to be larger public interest in such disclosure of

information. While the term 'public interest' has a wider

connotation and scope, it nonetheless is a well­defined meaning

and objective and it cannot be used as an 'umbrella' or 'cover all'

situations. The private interest of the Applicant may also have a

share of a public interest in it but such applications which are

primarily to sub­serve the private interest of the Applicants

cannot be pressed to yield 'information' from the Public

Authorities or Revenue Departments, like Income Tax

Department even the 'personal information' with regard to third

parties or Assessees under the Income Tax Act. The Income Tax

Act itself provides for a complete mechanism to investigate into

the affairs of an Assessee on the basis of information, evidence

and material on record of the Income Tax Department and such

'information' cannot be loosely parted with in favour of the

Applicant or third parties under the garb of wider scope under

the provisions of the RTI Act.

13. The tenor of the application filed by the Applicant in the

present case, Mr. Vinubhai Haribhai Patel (Malavia) which was

read to us by learned counsel, primarily shows that it is in the

nature of a complaint against the private Respondents to the

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

Income Tax Department, rather than any bona fide public

interest sought to be served by the disclosure of such information

about the status of the private Respondents as agriculturists or

not, whether their right to get such status by way of a Will

executed by a Testator is sustainable in law or not, etc. Such

personal or private information about the Assessees under the

Income Tax Act are only meant to be dealt with, investigated,

inquired or contested by the Assessees concerned before the

Income Tax Authorities and they are not the 'information' in

public domain to be made available to any third party.

14. As we have said above only the larger public interest duly

established with relevant material which can override this

confidentiality of the information and documents available with

the Income Tax Department, but we fail to see even an iota of the

public interest in this case. The tall claims made in the

application about the alleged effort of the private Respondents to

evade income tax under the garb of the claim of a status of their

being agriculturists, particularly by a person who is admittedly in

litigation over the same land in question with these Respondents,

which is said to have been sold by them to the Petitioner as well

as private Respondents. Therefore, the only interest of the

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

Petitioner who has been fighting against these private

Respondents at all possible forums including the RTI Act and

criminal complaints appears to be the only private interest and

the name of a public interest is just a ruse or excuse given to the

public authorities calling upon them to disclose such

'information' to the Petitioner - Applicant. The provisions of the

RTI Act are not meant to allow the parties to collect evidence

from such Departments or Public Authorities to sub­serve their

private interest.

15. As far as the concern shown by the Applicant about the

alleged tax evasion in the matter by the private Respondents is

concerned, the Authorities of the Income Tax Department are

clothed with sufficient powers under that enactment to take care

of that situation and whether these allegations at all amount to

tax avoidance or tax evasion or not could be a debatable issue

and we do not have to go into that aspect at all.

16. The other provisions which were referred to by the

Authorities below, were also Sections 8(1)(e) and 8(1)(h) besides

Section 8(1)(j) of the RTI Act. Clause (e) of Section 8(1) prohibits

giving of an information available to a person in his fiduciary

relationship, unless the competent authority is satisfied that the

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

larger public interest warrants the disclosure of such information.

Clause (h) prohibits information which would impede the

process of investigation or apprehension or prosecution of

offenders, while clause (j) talks about prohibition regarding

information which relates to personal information the disclosure

of which has no relationship to any public activity or interest, or

which would cause unwarranted invasion into the privacy of the

individual unless the concerned authority is satisfied that the

larger public interest justifies the disclosure of such information.

The Proviso to clause (j) talks of information which cannot be

denied to the Parliament or a State Legislature, the disclosure of

which will not be denied to any person. As far as Proviso is

concerned, no such case has been set up that the 'information' in

question was of such information which was claimed or denied or

could be denied on the call of Parliament or a State Legislature.

The pedestal given to a citizen at par with the these legislative

bodies, is very high and unless such a case is set up, any such

application cannot be taken to that higher pedestal just for the

askance.

17. As far as the information in present case being a 'personal

information' is concerned, the issue stands concluded by the

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

decision of the Hon'ble Supreme Court in the case of Girish

Ramchandra Deshpande (supra). The only common exception as

discussed above, is the larger public interest in disclosure of such

personal information too. We are not satisfied at all looking to

the facts of the present case that any larger public interest can be

sub­served in the present case by disclosure of the 'information'

in question to the Applicant - Petitioner which is more likely to

be used by him in his own favour in the pending litigation with

the private Respondents. The legal fight between the two in other

foras have to be contested by them on the basis of their own

material and evidence and not on the basis of information

gathered through the process of RTI Act.

18. In order to check the abuse and misuse of the purpose and

procedure enacted in the RTI Act, it is very essential to keep out

the Applicants and persons who approach the Authorities

concerned except for bona fide reasons. The existence of bona

fide reasons is a question of fact, which has to be established by

the Applicant with relevant material and not just empty and

hollow words to be used. In the background of the case which we

have in hand, we see only the private interest of the Applicant -

petitioner and not even a semblance of public interest in the

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

same.

19. Section 138 of the Income Tax Act also prohibits disclosure

of such information available with the Income Tax Department to

any third party unless again the larger public interest to be

established by the Applicant requires it to be done. The sanctity

of the Income Tax Assessment, filing of Returns, investigation

and inquiry under the Act would be thrown open to third parties,

if such 'information' was to be disclosed to third parties casually

or carelessly. On the other hand, the Act provides for keeping

such information guarded in confidence with the Authorities.

Therefore, the bar under Section 138 of the RTI Act as well as the

exemption against such disclosure contained in Section 8 of the

RTI Act, more particularly under Section 8(1)(j) of the RTI Act,

completely seals the fate of the Applicant - Petitioner in the

present case.

20. The learned Single Judge, in our opinion, was absolutely

correct and justified in dismissing the writ petition at the

threshold. We respectfully agree and affirm the said view of the

learned Single Judge. The present Letters Patent Appeal is,

therefore, found to be devoid of merit and the same deserves to

be dismissed and the same is accordingly dismissed. No order as

C/LPA/1169/2016 VINUBHAI H. PATEL (MALAVIA) v. ASSTT COMMISSIONER OF IT JUDGMENT DT. 27.1.2021

to costs. Rules is discharged.

21. Consequently, all Civil Applications are accordingly

disposed of.

Sd/-

(DR. VINEET KOTHARI,J)

Sd/-

(GITA GOPI,J) Bharat