9911796707
TMI Blog2010 (3) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... cords dealing with correspondence with the junior authorities of CCIT officers as mentioned inpoint 1(A) and the complaint of applicant (Mr. Rakesh Kumar Gupta) about non payment of reward and helping the tax evaders by way of not taking timely action. C. Kindly provide the file number for point 1(B) and whose possession/department, these files are kept. D. Kindly provide copy of file noting of the file referred in point number 1(b). E. Kindly provide copies of documents requested at the time of inspection of the file referred in point number 1(b). 2-A. Kindly provide the copies of letter written by CCIT's (concerned with above assessee - including other officers related to assessee listed above) to CBDT on the complaint of Applicant (Mr. Rakesh Kumar Gupta) about non-payment of reward and helping the tax evaders by way of not taking timely action. B. Kindly also provide the inspection of files/records dealing with correspondence with the superior/CBDT/junior authorities (of CCIT officers as mentioned in Point 2(A) and the complaint of Applicant (Mr. Rakesh Kumar Gupta) about non payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 14-12-09 has been accepted by the department. 5. CIC has held in the order dated 30-10-09 in the case of Shri R.K. Gupta v. Addl. Director of Income Tax (Vigilance) that Section 8(1)(h) of the RTI Act would only apply if the investigation is under way and the disclosure of information would impede the process of investigation. No explanation has been given by the CPIO which would show that process of investigation would be impeded." 4. In his order of 24-12-09, the Chief Commissioner of Income Tax ordered as follows : "1. The contention of the respondent that the order of the CIC dated 14-12-09 become final and the department has accepted the same is not correct as the department has filed writ petition before the Hon'ble Delhi High Court against the order of the CIC on 281.10 which has been fixed for hearing along with the writ petitions of the other third parties M/s. Escorts Ltd. & Ors. on 15-3-10. Hence, the matter has become sub-judiced. 2. The appellant too have pointed out that the matter is sub-judiced and is pending for adjudication before Hon'ble Delhi High Court and, therefore, no informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rakesh Kumar Gupta's prayer in his second appeal before us is : '1. Issue direction to give the information. 2. Penalize under Section 20 for delay in providing information and rejecting inspection on false pretext. 3. Direct Public Authority to maintained records as directed under Section 4 of the RTI Act, 2005. 4. Any additional payer as Respected Commissioner found deem fit like compensation etc." 7. The appeal was heard on 4-6-2010. The following are present : Appellant Shri Rakesh K. Gupta Respondents Shri Sunil Chopra, Chief Commissioner of IT Central Shri Arun S. Bhatnagar, CIT(C-II), New Delhi. Shri P. Ray Chaudhuri, Advocate &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AY (1998-99 to 2005-2006) 2 Mr. Rajan Nanda AY (1998-99 to 2005-2006) 3 Escorts Heart Institute & Research Centre Chandigarh (Society) AY (2001-2002) 4 Escorts Heart Institute & Research Centre Delhi (Society) AY (1998-99 to 2001-2002) 5 Dr. Naresh Trehan AY (1998-99 to 2005-2006) 6 Escorts Heart Institute & Research Centre Limited Chandigarh AY (2000-2001 to 2005-2006) 7 Big Apple Clothing (P) Limited AY (1998-99 to 2005-2006) 8 AAA Portfolio (P) Limited (1998-99 to 2005-2006) Required : 1 Inspection of all records in above respect. 2 Kindly provide the copies of documents mentioned at the time of inspection. 3 Kindly provide the officers (from assessing officers to CCIT), who are the officers to take action on "Tax Evasion Petition" given by me from 1-8-2008 till date. 10. In this matter, the CCIT also present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. (From Para 13 Page 6 of the order) Rule 3 : A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms... Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted. (From Para 14 Page 6 of the order) 3. On this argument (stay by the Court), there is direct High Court decision that directed that information should be given even after stay on information giving by the Supreme Court of India. Full copy of decision is available on CIC website under the heading High Court decisions. Direct Decision of CIC and the High Court in favour of Applicant. In The Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought. Copy of the Stay which has been issued by High Court of Delhi in WP (C) No. 2022/2010 - Escorts Heart Institute & Research Centre v. Rakesh Kumar Gupta, W.P. (C) No. 206/2010, Escorts Heart Institute v. R.K. Gupta, W.P. (C) No. 207/2010, Rajan Nanda v. Rakesh Kumar Gupta, W.P. (C) No. 251/2010, Portfolio P. Ltd. & Anr. v. Rakesh Kumar Gupta has indeed been stayed, as quoted by us above. The decision, which is stayed is that of this Commission in CIC/LS/A/2009/000647 in which the information sought was, as quoted at length above, inspection of records available with the Income Tax Department regarding various organizations that are in appeal and have received the stay. In that case, by the decision of this Commission of 14-12-09, the PIO had been directed to provide the inspection of these records. In the present case, the only inspection that has been sought is that of files and records of correspondence among officers dealing with the complaint of Shri Rakesh Kumar Gupta, appellant. This request then has, therefore, little to do with the appeal before the Hon'ble Delhi High Court. The order of the Chief Commissioner of Income Tax in the present case has relied wholly on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular matter in circumstances which give rise to a relationship of trust and confidence." Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan, (2005) 1 SCC 212 and Needle Industries (India) Ltd. v. Needle Industries (Newey) India Holding Ltd: 1981 (3) SCC 333 establish that Directors of a company owe fiduciary duties to its shareholders. In P.V. Sankara Kurup v. Leelavathy Nambiar, (1994) 6 SCC 68, the Supreme Court held that an agent and power of attorney holder can be said to owe a fiduciary relationship to the principal. 56. In a recent decision (Mr. Krishna Gopal Kakani v. Bank of Baroda 2008 (13) SCALE 160) the Supreme Court had to decide whether a transaction resulted in a fiduciary relationship. Money was sought to be recovered by the plaintiff, from a bank, who had moved the court for auction of goods imported, and retained the proceeds; the trail court overruled the objection to maintainability, stating that the bank held the surplus (of the proceeds) in a fiduciary capacity. The High Court upset the trial court's findings, ruling that the bank did not act in a fiduciary capacity. The Supreme Court affirmed the High Court's findings. The court noticed Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer" 58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be "formally" or "legally" ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles." 15. Under the circumstances, the present application cannot under any of the circumstances so exhaustively covered above, claim exemption u/s 8(1)(e). In light of this, the appeal is allowed to the extent that such documents, which pertain to records concerning tax assessments of parties to the WPs before the High Court of Delhi will not be made part of any disclosure applying the principle of severability ensh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
