Information regarding appellant’s complaint for Service Tax evasion by Silver Oak Condominium Ass - CIC: All public authorities must necessarily suo-moto disclose information pertaining to maintenance fee charged from its residents & alleged tax evasion
6 Feb, 2017Date of Decision : 27/01/2017
O R D E R
FACTS:
The appellant, vide his RTI application sought following information on 06 points with reference to letter no. DL-IV/ST/AE/Inq/Gr-5/Silver Oak/159/2015/12-08-2015 dated --.08.15 of Assistant Commissioner (Anti Evasion) regarding his complaint for evasion of Service Tax and violation of Service Tax Act by one Silver Oak Condominium Association, Silver Oak Complex, DLF-1, Gurgaon and desired details of action taken, details of Service Tax and Penalty levied, year of assessment, service tax levied from January 2013 to June 2014, copy of challan Forms of the amount deposited and issues related thereto. The CPIO vide its reply dated 13.01.2016, denied information under Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act, 2005 by stating that “complaint against M/s Silver Oak Condominium Association is under investigation”.
Dissatisfied by the response, the appellant approached the FAA.
Subsequently, the CPIO vide its reply dated 03.03.2016, provided point wise information on points 01 to 05 and for point no. 06 sought exemption under Section 8 (1)(h) of the RTI Act, 2005.
The order of the FAA, if any, is not available on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Inder Mohan Taneja (M: 9810289680);
Respondent: Mr. Harsh Singh, Asstt. Commissioner/CPIO (M: 9540926191) and Mr. Vivek Chauhan, Inspector (M: 9953230994);
The appellant reiterated the contents of RTI application. He submitted that no information had been provided regarding the action taken on the underinvoicing of the service tax dues by Silver Oak Condominium Association, Silver Oak Complex, DLF-1, Gurgaon mentioned in the RTI application. The respondent stated that the public authority is aware of the alleged tax evasion by the concerned authority and an investigation regarding the same had been initiated by them. They had sought records, audited balance sheets etc. from the Association Authorities that are yet to be submitted. It was informed that a detailed investigation had been set in motion keeping in view all aspects of the tax evasion highlighted by the appellant. During hearing, it was explained that since the detailed investigation of the extent of Service Tax evasion is being probed by the investigating authorities, several data sheets need to be collated, examined, analyzed further. This would require enormous effort by the agency. The respondent thanked the appellant for highlighting an important and sensitive issue of underinvoicing and alleged evasion of tax and assured that the investigation would be concluded meticulously and is likely to be completed shortly. Certain more details were furnished by the appellant during the hearing to facilitate the respondent to arrive at a correct conclusion. As regards the non-disclosure of information under Section 8 (1)(h) RTI Act, 2005 is concerned, while agreeing with the stand taken by the respondent, it was emphasized that the public authority should necessarily disclose the information on completion of its investigation to enable the public to be sensitized in these matters.
The High Court of Delhi in General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 regarding the disclosure of information for public interest, held:
“8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance.”
Moreover, the Hon’ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015) observed that:
“The ideal of ‘Government by the people’ makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for ‘open governance’ which is a foundation of democracy.”
However, on the matter of exemption from disclosure of information under Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of RTI Act, 2005, the decision of the Hon’ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 can be cited wherein it was held:
“19. The question that arises for consideration has already been formulated in the Court's order dated 21st April 2011: Whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would "impede the investigation" in terms of Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; RTI Act"
The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation."
The Hon’ble High Court of Bombay in Adarsh Co-op. Housing Society Ltd. and Ors v. Union of India, Writ Petition No. 369 of 2011 dated 29.04.2016, para 384 recognised the contribution of an RTI activist in the matter and stated as under
“384. We place on record the fact that but for the complaint received from Shri Simprit Singh of NAPM, respondent No. 6 MCZMA would not have initiated the proceedings under the E.P. Act. Mr. Simprit Singh of NAPM did not participate in the proceedings before the respondents as also he was not impleaded party respondent in this Petition. He also did not intervene in this Petition. But for his intervention, perhaps, the gross violations made by petitioners would not have been detected. He, however remained unsung hero. We place on record our appreciation for his making complaint to MCZMA in a sensitive matter like environment.”
DECISION:
Keeping in view the facts of the case, submissions made by both the parties, and in light of the decisions cited above, the Commission is of the view that with the spirit behind the promulgation of RTI Act, 2005, it is extremely essential that all such public authorities engaged in activities of this nature must necessarily suo-moto disclose information pertaining to maintenance fee charged from its residents and alleged evasion of Service Tax in violation of Service Tax Act. However, on the contention of the respondent for the non-disclosure of the information at this stage under Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the Act, the Commission observes that a harmonious synergy should be drawn at the interpretation of Section-4 read with Section (8)(1)(h) of the RTI Act, 2005. Therefore, the Commission advises the respondent to consider suo-moto disclosure of all such information sought by the appellant in his RTI application under Section-4 of the RTI Act, 2005, on its website consequent upon the completion of its investigation by the respondent in the larger public interest. The appeal stands disposed with the above direction.
(Bimal Julka)
Information Commissioner
Citation: Mr. Inder Mohan Taneja v. Commissioner of Service Tax, Delhi-IV in File No.:-CIC/SB/A/2016/001013-BJ