TMI Blog2024 (1) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the IT Act. Therefore, the question which arises for consideration is which Act will prevail. Ordinarily, if there are two non-obstante clauses then the latter one prevails over the former. At the same time, the applicability and overriding effect of an Act over other statutes cannot be decided merely by when the concerned Act comes into force and it is for the Courts to discern and interpret as to which Act will prevail over the other. In the present case, in the opinion of this Court, the IT 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. Section 138 (1)(b) and Section 138 (2) of the IT Act which lays down a specific procedure relating to disclosure of information relating to a third party under the IT Act would override Section 22 of the RTI Act. The information sought for by the Respondent herein is clearly covered by Section 138(1)(b) of the IT Act. The satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is, therefore, necessary before such information can be divulged. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent by the CPIO and the Appellate Authority on the ground that the information sought is exempted from disclosure under Section 8(1)(j) of the Right to Information Act, 2005. 2. The principle contention amongst others raised in the present Writ Petition is that any information relating to any assessee relating to income tax can be sought for only in the manner prescribed under Section 138 of the Income Tax Act, 1961 (hereinafter referred to as the IT Act ) and not under the Right to Information Act, 2005 (hereinafter referred to as the RTI Act ). The other argument raised by the Petitioner is that the information sought for by the Respondent is exempted under Section 8(1)(j) of the RTI Act and in any event since the matter relates to PM CARES Fund, it could not have been disclosed without hearing the PM CARES Fund. 3. Notice in the present Writ Petition was issued on 07.07.2022. Pleadings have been completed. 4. Mr. Zoheb Hossain, learned Counsel for the Petitioner, states that under the Income Tax Act, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 80G of the IT Act on 27.03.2020. He states that the Respondent wants to know the exact procedure followed by the Income Tax Department in granting such a swift approval and to see whether any rules or procedure were by-passed by the Income Tax Department in granting such approvals. He further states that the information sought for by the Respondent does not include any personal information. It is also submitted by the learned Counsel for the Respondent that the information sought for by the Respondent can be granted under the RTI Act. He states that there is an inconsistency between the provisions of the RTI Act and the IT Act. He states that Section 22 of the RTI Act provides that the RTI Act will have an over-riding effect over any other statute for the time being in force notwithstanding anything contained in Official Secrets Act. He further states that in any event if there are two methods of getting the same information, one under the Income Tax Act and one under the RTI Act, there is no bar in getting the information by adopting either of the methods. He states that this is not a case where the information sought for by the Respondent cannot be given under the RTI Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived or obtained by any income-tax authority in the performance of his functions under this Act], the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, if he is satisfied that it is in the public interest so 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. (emphasis supplied) 9. A perusal of Section 138 (1)(b) of the IT Act indicates that when a person makes an application to the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner in the prescribed form for any information relating to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arger public interest justifies the disclosure of such information. Section 11 of the RTI Act provides that where the CPIO or the SPIO intends to disclose any information or record, or part thereof on a request made under the RTI Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, then the CPIO or the SPIO shall give a notice to the third party to intimate them about the request of information and the fact that the CPIO/SPIO intends to disclose the said information and then take a decision only in the manner prescribed under Section 11 of the RTI Act. Section 11 of the RTI Act reads as under: Section 11. Third party information. (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IT 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. 14. In LIC v. D.J. Bahadur, (1981) 1 SCC 315, while dealing with the provisions of LIC and the Industrial Disputes Act on the question relating to the entitlement of bonus, the Apex Court has observed as under: 50. The crucial question which demands an answer before we settle the issue is as to whether the LIC Act is a special statute and the ID Act a general statute so that the latter pro tanto repeals or prevails over the earlier one. What do we mean by a special statute and, in the scheme of the two enactments in question, which can we regard as the special Act and which the general? An implied repeal is the last judicial refuge and unless driven to that conclusion, is rarely resorted to. The decisive point is as to whether the ID Act can be displaced or dismissed as a general statute. If it can be and if the LIC Act is a special statute the proposition contended for by the appellant that the settlement depending for its sustenance on the ID Act cannot hold good against Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, of management when private businesses are nationalised and a plurality of problems which, incidentally, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows: Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.' 55. In J.K. Cotton Spinning Weaving Mills Co. Ltd. v. State of U.P. [AIR 1961 SC 1170, 1174 : (1961) 3 SCR 185 : (1961) 1 LLJ 540 : (1960-61) 19 FJR 436], this Court observed at p. 1174: The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. We have already shown that the Industrial Employment (Standing Orders) Act is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if no industrial dispute was raised. Secondly, no case of redundant words arose because the Corporation, like a university, employed not only workmen but others also and to regulate their conditions of service, power was needed. Again, in situations where no dispute arose, power in the employer to fix the terms of employment had to be vested. This is a common provision of a general sort, not a particularised provision to canalise an industrial dispute. 57. What is special or general is wholly a creature of the subject and context and may vary with situation, circumstances and angle of vision. Law is no abstraction but realises itself in the living setting of actualities. Which is a special provision and which general, depends on the specific problem, the topic for decision, not the broad rubric nor any rule of thumb. The peaceful coexistence of both legislations is best achieved, if that be feasible, by allowing to each its allotted field for play. Sense and sensibility, not mechanical rigidity gives the flexible solution. It is difficult for me to think that when the entire industrial field, even covering municipalities, universities, research councils and the like, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner 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 for. 16. The said judgment has been followed by the Apex Court in Rakesh Kumar Gupta v. Income Tax Appellate Tribunal (ITAT), 2007 SCC OnLine CIC 315. 17. In Chief Information Commr. v. High Court of Gujarat, (2020) 4 SCC 702, when an issue was raised over furnishing of information of certified copies obtained from the High Court of Gujarat by invoking the provisions of the RTI Act, the Apex Court, while resorting to the Gujarat High Court Rules, has observed as under: 35. 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 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 clear inconsistency between the two legislations. In this regard, we may usefully refer to the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses. This Commission in Rakesh Kumar Gupta v. ITAT, decided on 18th September, 2007 decided by a Full Bench, has dealt with the issue of applicability of special law to the exclusion of the general law. The Commission has relied upon the Hon'ble Apex Court's decision in Chandra Prakash Tiwari v. Shakuntala Shukla AIR 2002 SC 2322 . The following two paragraphs from the said decision of the Commission are pertinent and quoted below: 37. A special enactment or Rule, therefore, cannot be held to be overridden by a later general enactment or simply because the latter opens up with a non-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 v. Shakuntala Shukla AIR 2002 SC 2322 and the Hon'ble Supreme 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 derogate pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 grant of information as sought for by the Respondent herein. 21. The reliance placed by the learned Counsel for the Respondent on Paras Jain (supra) would not be applicable to the facts of the present case. In the said case there was no inconsistency between the rules of the Institute therein and the RTI Act. The primary objection in the said case was that the fee prescribed by the Institute was higher and in view of the fact that the same information could have been sought using the forum of RTI, whose fee is slightly lesser, the Apex Court held that it was for the applicant to approach either of the forums. In the present case, the question which arose was whether Section 138(2) of the IT Act which also contains a non- obstante clause would override Section 22 of the RTI Act or not. In view of the fact that Section 138(1)(b) of the IT Act mandates that information relating to an assessee can only be supplied subject to the satisfaction of Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as th ..... 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