The Hans India: New Delhi: Tuesday,
August 30, 2016.
Anil Bairwal
of ADR sought to know from the Income Tax Department about the income details
of 20 MPs belonging to various leading political parties: Naveen Jindal, Uday
Singh, Sachin Pilot, Dushyant Singh, Dip Gogoi, Jyotiraditya Madhavrao Scindia,
Navjot Singh Sidhu, Beni Prasad Verma, Dr Shafiqurr Ahman Barq, Ajit Singh,
Lalu Prasad Yadav, Mohan Jena, Baju Bajn Riyan,
T R Baalu,
Sharad Chandra Govindrao Pawar, Shivaji Adhalrao Patil, Smt. Paramjit Kaur
Gulshan, Meneka Gandhi, Usha Verma and Kumari Selja. His request includes
whether 20 MPs (names specified) have filed their IT returns for all the five
years 2004-09, year for which they did not file their return, details of their
IT returns and assessment orders for all these years. The IT dept rejected all
these points en bloc invoking the Section 8(1)(j), i.e. privacy.
It is the
duty of the CPIOs to examine each point of RTI application instead of rejecting
en bloc. Whether MPs filed IT returns for each year from 2004-09? Answer could
have been ‘yes’ or ‘no’. What are the years for which they did not file?
Answer could
have been mentioning of year, if IT return was not filed, if any, or ‘filed for
every year’ if those were filed. The CPIO could have culled out some
information out of assessment orders without disclosing the personal
information adopting Doctrine of Severability of Section 10. There was no
attempt to answer any question by any CPIO in any of these applications. Above
all, each CPIO failed to show how he understood that there was no larger
‘public interest.’
After being
elected, the MPs have to submit their annual assets statement every year to the
Speaker of the Lok Sabha or Chairperson of Rajya Sabha, as the case may be.
Members of Parliament are required to file a declaration of assets and
liabilities with the Speaker of Lok Sabha and the Chairman of Rajya Sabha.
The rules to
this effect were made in 2004 under the Representation of Peoples Act, 1951.
These declarations have to be made by MPs within 90 days of taking their seat
in Parliament. The Rajya Sabha rules specify that MPs are required to update
their declarations every year. They are accessible.
The IT
department has heavily relied on Girish Ramachandra to deny the information.
Former Central Information Commissioner Shailesh Gandhi filed a PIL in Bombay
High Court challenging the reasoning and legality of Girish Ramachandra.
He cited
Supreme Court in UoI v ADR (2002) 5 SCC 294 saying that the standard of
disclosure for public servants has been set higher. He also relied on R
Rajagopal v State of Tamil Nadu (1994)6 SCC 632 and in ADR v PUCL (2002) 6 SCC
632, and in PUCL v UOI AIR 2003 SC 2363 wherein it was held that public
interest element involved in divulging information relating to public servants,
MPs and Ministers outweighs the right to privacy. Bombay High Court reiterated the conclusion
of Girish Ramachandra.
Though the
CPIO consulted third parties but ignored public interest proviso. The proviso
to Section 11(1) says: Provided that except in the case of trade or commercial
secrets protected by law, disclosure may be allowed if the public interest in
disclosure outweighs in importance any possible harm or injury to the interests
of such third party.
Section
8(1)(j) prescribed ‘public interest’ as a requirement to decide the disclosure
of information though exempted. The CPIO or the First Appellate Authority is
not just an executive officer in his office but an “authority” under RTI Act
with a responsibility to use his personal discretion as per law while deciding
RTI request.
Is every MP
is a public personality and are his activities public in nature, including
financial transactions? If there is any public interest, is it larger enough to
share with public in general? The public interest under section 8(1)(j)
requires three conditions to be considered: absence of relationship with public
activity or interest or, possibility of unwarranted invasion of privacy or,
existence of larger public interest. Language of Section 8(1)(j) is very clear
i.e., it demands satisfaction of CPIO.
In G R Rawal
Vs Director General of Income Tax (Investigation), Ahmadabad, Appeal No.
CIC/AT/A/2007/00490 on 05-03-2008 CIC Full Bench has explained: “An invasion of
privacy may also be held to be justified if the larger public interest so
warrants. It is, therefore, necessary to analyse the ambit and scope of both
the expressions "personal information" and "invasion of
privacy." However, there could be circumstances when it becomes necessary
to disclose some of this information if it is in larger public interest.
Thus, for
example, if there is a doubt about the integrity of any person occupying a
public office, it may become necessary to know about one’s financial status and
the details of his assets and liabilities not only of the person himself but
also of other close members of the family as well. Similarly, if there is an
allegation about the appointment of a person to a public office where there are
certain rules with regard to qualification and experience of the person who has
already been appointed in competition with others, it may become necessary to
make inquiries about the person’s qualification and experience and these things
may not be kept confidential as such.”
The larger
public interest has to be examined under RTI Act, and also under IT Act. Section
138(1)(b) of the Income Tax Act is similarly couched with requirement of
examining the public interest factor, which is very significant. This section
is referred to by AN Tiwari, IC in Ms. Anumeha, C/O ADR (29.04.2008) which
decided: “39. In fact provision for disclosure of such information exists in
the Income Tax Act itself. Section 138(1)(b) of the Income Tax Act empowers the
Commissioner of Income Tax to disclose, “in public interest”, any information
which comes into the hands of the public authority.
That Section
reads as follows:- “(b) Where a person makes an application to the [Chief
Commissioner or Commissioner] in the prescribed form for any information
relating to any assessee [received or obtained by any income-tax authority in
the performance of his functions under this Act], the [Chief 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.
“40. That
this Section states is that any information in the hands of the Income Tax
authorities would be ordinarily held as confidential, but can be made public,
if in the judgement of the Commissioner of Income Tax, it serves public
purpose. Therefore, the contention that all Income Tax Returns- an information
provided by assessees to Income Tax authorities - are permanently barred from
disclosure, is not correct.
This
information can be disclosed in public interest, either in a given case, or a
class of cases, under Income Tax laws. As has been shown in the preceding
paragraphs there is public interest in disclosing the class of information,
viz. Income Tax Returns of the Political Parties.”
CIC bench
said: “The CPIOs being authorities are under RTI Act, should proceed according
to procedure prescribed under that law and consult each and every third party
about whose ITR related information is being sought. There is nothing on record
to show that CPIOs of various wings of respondent authority have issued notice
to all the 20 MPs and they responded, except regarding two MPs. The turn of
CPIOs examining larger public interest did not arise.”
The Bench
directed the Income Tax Department to examine each point of RTI request, issue
notices to all third parties as required under Section 11 in all eight cases,
secure responses, duly consider the larger public interest after giving
sufficient opportunity to the appellants, and decide on information with
speaking order on each point. (Based on decision of Bench Mr. Basant Seth and M
Sridhar Acharyulu in Anil Bairwal Vs Commissioner of Income Tax,
CIC/DS/A/2011/004218, dated 10.8.2016)
.JPG)
.JPG)
