CIC cannot ask IT department to provide information about PM CARES fund, rules Delhi HC

The Delhi High Court has held information about the PM CARES fund could not be provided under the Right to Information (RTI) Act but only under the Income Tax Act, that too upon the satisfaction of the principal chief commissioner of income tax. 

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ON Monday, Justice Subramonium Prasad of the Delhi High Court ruled that the Central Information Commission (CIC) had no jurisdiction to direct the income tax department to provide information concerning tax exemption to the PM CARES fund, under the Right to Information (RTI) Act, 2005.

Justice Prasad held that such information could not be provided save to the satisfaction of the principal chief commissioner of income tax under Section 138(1)(b) of the Income Tax Act, 1961.

Justice Prasad was ruling on a petition filed by the income tax department against the ruling of the CIC on April 27, 2022 directing the department to provide copies of all documents submitted in the exemption application and copies of the file notings granting approvals relating to the PM CARES fund.

Both the Central public information officer and the first appellate authority had declined to give the information citing Section 8(1)(j) of the RTI Act.

Under this Section, the Central public information officer is not obligated to provide the information if, in his opinion, the information sought relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause an unwarranted invasion of the privacy of the individual unless the Central 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.

Before the Delhi High Court, the income tax department contended that any information relating to any assessee relating to income tax could be sought only in the manner prescribed under Section 138 of the Income Tax Act and not under the RTI Act.

Section 138 of the Income Tax Act provides that if a person requires any information relating to any assessee received or obtained by the income tax authority in the performance of his functions under the Income Tax Act, then that application has to be made to the principal chief commissioner or chief commissioner or principal commissioner in the prescribed form, and the authority to whom the application is filed has to be satisfied that it is in public interest to furnish the information asked for and only after the authority is satisfied that it is in public interest to reveal the information can that information be supplied to the person making the application.

Advocate Zoheb Hossain, who appeared for the income tax department, thus contended that since a specific procedure had been laid down under the Income Tax Act, the Central public information officer could not provide the information as doing so could be contrary to the mandate of Section 138(2) of the Income Tax Act.

Hossain also raised another argument— that the information sought was exempted from disclosure under Section 8(1)(j) of the RTI Act and thus the information could not have been disclosed without hearing the PM CARES fund.

He added that the CIC had not ruled or adjudicated on the question as to what was 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 income tax department to give the information sought for, more so when the Central public information officer and the first appellate authority had rejected the application on the ground that the information sought was personal.

Advocate Pranav Sachdeva, for RTI applicant Girish Mitthal, argued that there was an inconsistency between the provisions of the RTI Act and the Income Tax Act. However, given the mandate of Section 22 of the RTI Act, the RTI would have an overriding effect over any other statute for the time being in force notwithstanding anything contained in the Official Secrets Act, 1923.

Sachdeva further argued that in any event if there were two methods of getting the same information, one under the Income Tax Act and one under the RTI Act, there was no bar to getting the information by adopting either of the methods.

He cited a decision of the Supreme Court in ICSI versus Paras Jain, wherein the person who had approached the authorities under the RTI Act for getting 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 provided for a procedure for obtaining the answer scripts on the payment of a fee.

The Supreme Court, in the said case, rejected the stand of the Institute of Company Secretaries and held that information could also be given under the RTI Act and it was 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 was sought.

In addition to this, Sachdeva also argued that there was an overwhelming public interest in directing the authority to supply the information sought adding that the PM CARES fund had been created to serve the public.

He submitted that the PM CARES fund is a charitable fund that had been established to provide relief to the public during the Covid pandemic or any similar emergencies.

He contended that the income tax department approved the applications given by the PM CARES fund for the grant of exemption on income tax under Section 80G of the Income Tax Act on March 27, 2020.

He stated that the RTI 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 procedures were bypassed by the income tax department in granting such approvals.

Justice Prasad acknowledged that there is an inconsistency between the provisions of the RTI Act and the Income Tax Act. He also acknowledged that ordinarily, if there are two non-obstante clauses then the latter one prevails over the former.

However, Justice Prasad added that the applicability and overriding effect of an Act over other statutes could not be decided merely by when the concerned Act had come into force and it was for the courts to discern and interpret as to which Act would prevail over the other.

Justice Prasad then observed that in his opinion, the Income Tax 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.

He thus held that Section 138 (1)(b) and Section 138 (2) of the Income Tax Act which lay down a specific procedure relating to disclosure of information relating to a third party under the Income Tax Act would override Section 22 of the RTI Act.

"The information sought by the respondent herein is clearly covered by Section 138(1)(b) of the Income Tax Act. The satisfaction of the 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," Justice Prasad ruled.

Justice Prasad also referred to a decision of the Supreme Court in Chief Information Commissioner versus High Court of Gujarat in which it was observed that the non-obstante clause of the RTI Act does not mean an implied repeal of the high court Rules and Orders framed under Article 225 of the Constitution of India but it only has an overriding effect in case of inconsistency.

A special enactment or Rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non-obstante clause unless there is a clear inconsistency between the two legislations.

In that case, the issue was regarding the furnishing of information of certified copies obtained from the High Court of Gujarat by invoking the provisions of the RTI Act. The Supreme Court had held such information could only be obtained as per the high court Rules.

Justice Prasad said that based on the same analogy, Section 138(1)(b) of the Income Tax Act, which specifically states that information relating to an assessee can only be supplied subject to the satisfaction of the 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.

Justice Prasad also held that the RTI applicant sought information from the Central public information officer of the income tax department and not from the PM CARES fund which, according to the income tax department, is not an 'authority'.

Thus, Justice Prasad observed that since the information sought by the RTI applicant related to a third party, the 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 the grant of information as sought by the respondent herein," Justice Prasad ruled.

He then proceeded to quash the CIC Order.

Click here to read the order.