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TMI Blog2007 (12) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No.567; 3) Inspection of all the case records. 2. CPIO vide reply dated 27th June, 2006 declined all the requests of the appellant and stated as under: 1) Daily minutes maintained by Members of the Bench are part of judicial proceedings and are meant only for the use of the Members; 2) Copy of the order in the case of Escorts Limited A.Y. 2001- 2002 Appeal ITA No. 567/DEL/05-BENCH G can be given only to the concerned parties or their representatives duly authorized to receive such order; 3) Inspection can be granted only to the concerned parties or their representatives duly authorized in this behalf. 3. Aggrieved with the decision of the CPIO, the appellant filed his first appeal on 29.6.2006 before the President of ITAT and first Appellate Authority complaining against the CPIO, that he had wrongly refused to provide the information. The appellant also submitted in a follow up letter of 30.8.'06 to President ITAT that the case in respect of which the information is requested is a very old case and that none of the information requested by him is covered under Section 8(1) of the Right to Information Act, 2005 (RTI). The appellant cited judgment of Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant can be given and referred to Rule 49(4) providing for fees for the publishers and Rule 33 under which proceedings before the ITAT are open proceedings in cases like this. (vi) Rules 49 and 50 of the ITAT Rules under which inspection of ITAT records are free to every one till the case is pending and free for the party for ever. The proceedings before the ITAT are conducted in open hearing and, therefore, they cannot be confidential or private. (vii) Under Rule 33 of the ITAT Rules, Income Tax assessments and proceedings before the ITAT are public in nature and open in cases like this; (viii) Inspection of records is fundamental right under Article 19 of the Constitution of India as laid down in AIR 1982 SC 149; (ix) Right to know gives rise to the concept of an open government which is implicitly contained in Article 19(1)(a) of the Constitution of India which guarantees freedom of speech and expression. Disclosure of information regarding functioning of the government, therefore, must be the Rule and secrecy an exception; (x) Under Section 138(1)(b) of the Income Tax Act, the Chief Commissioner or Commissioner is bound to furnish the information asked for if he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down under the appropriate Act or as provided in the Constitution. It would be wholly inappropriate to invoke the provisions of the Right to Information Act for the interpretation of laws and Rules. It should be made clear that the laws and Rules are themselves `information' and being in public domain are accessible to all citizens of the country. 9. Against the order of the First Appellate Authority, the appellant preferred 2nd appeal before the Central Commission on 20th December, 2006. 10. The 2nd appeal of the appellant was heard by Information Commissioner, Shri A.N. Tiwari on 15th February, 2007 when the appellant was present in person while the respondents were represented by the APIO, Shri Bikram Dutt, Assistant Registrar of the Income Tax Appellate Tribunal. While hearing the appeal, the Information Commissioner observed that the appellant's request is: (i) for the minutes maintained by the members of the ITAT Bench in a particular case; (ii) Copy of the ITAT decision in the case of Escorts Limited for the year 2001-2002; and (iii) All concerned records. These requests, therefore, raise a very important question about whether under the Right to Information A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. As regards the issue of `locus standi', the appellant said that he had already submitted that he is an informant and, therefore, he has locus standi for seeking this information from the respondents. He said that even a publisher is given copies of proceedings and decisions of the ITAT. He had asked for inspection of documents which are all public documents. Anybody whether he is a party to the proceeding or not can apply for inspection of records, files, proceedings etc. on payment of prescribed fees. 17. Appellant said that public interest in disclosure of this information is overriding. In every judicial proceeding, every thing should be transparent and open in order to curb corruption. Limited disclosure by the ITAT is potential generator of corruption. The more the transparency the less is the corruption. Appellant said that there has been rampant theft of tax amounting to thousands of crores of rupees and although he had filed more than 20 RTI applications but he had got no information. 18. In reply to the arguments of the appellant, the respondents submitted that they have objected to the very maintainability of the appeal and submitted that it should be rejected on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any discretion. It is binding on the Tribunal. 21. Respondents said that they have already supplied copies of the orders to the appellant and there is no larger issue before this Commission. 3rd parties have strongly objected to inspection of their records by the appellant as the same contain their Income Tax assessment. 22. ISSUES FOR DETERMINATION: I. Whether this Commission, under the Right to Information Act, can order the ITAT to disclose information which that Tribunal has decided not to disclose under the Income Tax Act, 1961 as amended from time to time and rules made thereunder? II. Whether the RTI Act applies to a judicial proceeding and, if so, does it override the existing law concerning dissemination of information in respect of a judicial proceeding? III. Whether the information, which the respondents say are prohibited under the Income Tax Act can be given under the Right to Information Act? DECISION AND REASONS: 23. The Right to Information Act was enacted with a view to grant right to a citizen to access information under the control of public authorities in order to promote transparency and accountability. In its preamble, the Act recognized that an inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26. Section 2(e) of the Act declares the following as competent authority: 2(e): (i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State; (ii) the Chief Justice of India in the case of the Supreme Court; (iii) the Chief Justice of the High Court in the case of a High Court; (iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution; (v) the administrator appointed under article 239 of the Constitution; 27. In this context, it is pertinent to refer to Section 27 and 28 of the Right to Information Act. While Section 27 empowers the appropriate Government to make Rules to carry out the provisions of the Act, Section 28 similarly empowers a "competent authority" to make Rules to carry out the provisions of the Act. Both the appropriate Government and the competent authority have, therefore, concurrent powers to make Rules to effectively implement the provisions of the Act and the common areas of Rule making powers include the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse as it even intends to exclude the competent authority from the general definition of the Government. It is pertinent to note that the President is the Head of the Union Executive. He is also a part of the Union Parliament. Similarly, the Governor is the Head of the Executive at the State level and at the same time he is a part of the State legislature. Insofar as the Right to Information Act is concerned, the President and the Governor are also the 'competent authority' under the Right to Information Act in respect of "other authorities established or constituted by or under the Constitution". Thus, the President or the Governor as competent authority may formulate separate Rules for other constitutional authorities, which may include tribunals or other judicial and quasi judicial bodies. 31. All courts and tribunals have two sides - judicial and administrative. There is nothing in the "Statement of Objects and Reasons" of the Act to indicate that the Act was intended to apply to judicial functions and powers of the courts and tribunals. It is inconceivable that the legislature, having provided for elaborate redressal machinery by way of appeals, revisions etc. under the vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted by or under any law relating to the Armed Forces. 34. The power of the High Court, therefore, extends to making of general Rules for regulating the practice and proceedings of all courts and tribunals. However, Rules so made by the High Court shall not be inconsistent with the provision of any law for the time being in force and shall require the previous approval of the Governor. Accordingly, Rules have been made by all High Courts concerning grant of copies of documents and the fees have also accordingly been prescribed under the Rules so made by the High Court. The Right to Information Act which has been enacted in the year 2005, therefore, is a legislation in pari materia and section 22 of the Act declares that it will have an overriding effect over any other provisions which is found to be inconsistent therewith. It will not be out of context to refer the said section which reads as under: "Sec.22: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." 35. The q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obstante clause unless there is clear inconsistency between the two legislations - one which is later in order of time and the other which is a special enactment. This issue came again for consideration before the Hon'ble Apex Court in Chandra Prakash Tiwari Vs. Shakuntala Shukla - AIR 2002 SC 2322 and the Hon'ble Surpeme Court quoted with approval the Broom's Legal Maxim in reference to two Latin Maxims in the following words: "It is then, an elementary Rule that an earlier Act must give place to a later, if the two cannot be reconciled - lex posterior derogat priori - non est novum ut priores leges ad posteriores trahantur (Emphasis supplied) - and one Act may repeal another by express words or by implication; for it is enough if there be words which by necessary implication repeal it. But a repeal by implication is never to be favoured, and must not be imputed to the legislature without necessity, or strong reason, to be shown by the party imputing it. It is only effected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together [Emphasis ours]; unless the two Acts are so plainly repu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inguished from a special one which in its operation is confined to a particular locality and, therefore, where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both the enactments as far as possible." 41. In view of this, it may be very well inferred that the RTI Act does not repeal or substitute any pre-existing law including the provisions of the Income Tax Act concerning dissemination of information. 42. In the instant case, the appellant has asked for a copy of the daily proceedings minutes maintained by the members of the Bench tried by the ITAT in appeal case No.ITA 567/Del/05. The CPIO in the instant case has replied that the daily minutes maintained by the members of the Bench are a part of the judicial proceedings and is meant only for the use of the members of the Tribunal. Admittedly, the proceedings before the Tribunal are judicial. 43. Apparently, all judicial proceedings are conducted in open and transparency is the hallmark in case of all such proceedings. There is no element of secrecy whatsoever. But at the same time, it has to be borne in mind that the judiciary is independent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity to take all decisions in matters properly brought within the purview of that authority. For example, the ITAT, as a judicial body, is also entrusted with the power to authorize disclosure or non-disclosure of a given set of information such as the information asked for by the appellant in the present appeal. In our understanding, it should not be necessary to separate the function of disclosure of information from the general function of that judicial body. In other words, it would not be appropriate for the Commission or any entity functioning as part of the RTI-regime, to pronounce on the disclosure of a given set of information, if it is found that under another law (such as the Income Tax Act), this disclosure function is exercisable as part of the judicial function by a judicial authority, such as the ITAT. 49. It is our conclusion, therefore, that given that a judicial authority must function with total independence and freedom, should it be found that an action initiated under the RTI Act impinges upon the authority of that judicial body, the Commission will not authorize the use of the RTI Act for any such disclosure requirement. Section 8(1) (b) of the RTI Act is qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction of that judicial authority. If the appellant is aggrieved with the decision of the ITAT, the remedy lies elsewhere. (iv) It is reiterated and made clear that the RTI Act is not intended to come into conflict with a judicial decision regarding disclosure of information. Section 8(1)(b) of the Right to Information Act, 2005 makes it very clear that the information which has been expressly forbidden to be published by any court of law or tribunal cannot be disclosed as any such disclosure is also within the exemption clause. (v) In the present case, however, though the respondents have submitted during hearing that the Tribunal has passed an order rejecting the request of the appellant for inspection of the document, but supporting documents have not been submitted before the Commission. Under these circumstances, the matter is, therefore, remanded back to the first Appellate Authority with the following directions:- a. He will determine whether there is any judicial order of the Tribunal pronounced under the Income Tax Act as regards disclosure of the information sought by the appellant and if it is so, the remedy available to the appellant shall be under the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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