First Appeal TEP RTI

Reference No:

Dated: __________

To,
Appellant Authority

Sub: - First Appeal under 19 (1) of RTI Act, 2005

Reference: _____________dated ________________

Dear Sir /Madam,

The appellant is constrained to file a First Appeal u/s 19 (1) of RTI Act to your esteemed office against not providing information by CPIO

The brief FACTS of this matter are:-


That the appellant has submitted RTI application under RTI Act 2005 to “in the office of CPIO, Range-VI, O/o Add Commissioner of IncomeTax – Range--------- (Attached as Annexure-A).

That the “CPIO has not provided any answer of my application or manipulated the answer. (Attached CPIO replies as Annexure-B)

My GROUNDS for the appeal are as follows:-

BECAUSE, Smt --------- D/o Shri ---------- admitted an expenditure of Rs.----- lacks by her parents in her own Shri ----------- may have taken a bribe or collect Rs. -------lacks from undisclosed sources because of such kind of people our country is facing money loss in present case servey u/s 133A(5) is required by Income Tax.

• Since total expenditure of Rs -------- lacs has been claimed by in-laws, so it is a natural curiosity that what was the source of fund .If you disclose it then doubt of black money will be removed from my mind and this way the information will fulfill the objective of RTI to check the corruption as said by Hon'ble justice Shri Pradeep Kant in the recent judgement under Writ Petition No. 3262 (MB) of 2008,Public Information OfficerVs. State Information Commission, U.P. and others,



“....Our Constitution establishes a democratic republic. Democracy requires an informed citizenry and transparency of information which are vital to its functioning........The purpose and object of the act is not only to provide information but to keep a check on corruption, and for that matter confers a right upon the citizens to have the necessary information, ….”



2. BECAUSE Mr FIL NAME may be taken bribe of evaded tax as they have claimed XYZ lacs spent in marriage and because of such kind of people our contry is facing Money Loss in present case servey u/s 133A(5) for marriage expenditure is required by Income Tax Officer.



3. BECAUSE, The appellant has enclosed a copy of relevant judgments before CPIO, along with original application which is a same kind of TEP / RTI matter related to dowry matter “Honorable High Court wide Decision No WP(C) No.3114/2007



In view of the foregoing discussion the order of the CIC dated 8th May 2006 in so far as it withholds information until tax recovery orders are made, is set aside. The second and third respondents are directed to release the information sought, on the basis of the materials available and collected with them, within two weeks.





This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought.



4. BECAUSE, Honorable Chief Information Commissioner Shri Shailesh Gandhi Wide Decision No. CIC/LS/A/2009/000647/SG/5887 dated 14-12-2009 in TEP / RTI matter where he defines the concept Section 8(1)(h) of the Act provides-



8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—



(h) information which would impede the process of investigation or apprehension or prosecution of offenders;



Dr. Naresh Trehan, one of the third parties, and the Department have relied on this ground of exemption. Both parties have stated that as the process of assessment has not been finalized till date and Investigation is still underway, exemption under Section 8(1)(h) applies. But the mere fact that an investigation is underway and that assessment has not been finalized is not a sufficient ground for the application of Section 8(1)(h).



The High Court of Delhi has held in Bhagat Singh v. CIC & Ors. WP (C) No. 3114/2007 that-

“It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information” The PIO has contention that,



“Logically no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In this context the progress of assessments are therefore exempt from disclosure under Section 8(1)(h)”, only states that the investigation is not over. No claim has been made that the process of investigation would be impeded in any manner.



Neither party has been able to establish before the Commission how the disclosure of information to the Appellant would impede the process of investigation. Therefore, Section 8(1)(h) cannot be applied in the present case to claim exemption from disclosure of information.



The disclosure of the information would lead to unwarranted invasion of the privacy of the individual.



Certain human rights such as liberty, freedom of expression or right to life are universal and therefore would apply uniformly to all human-beings worldwide. However, the concept of 'privacy' is a cultural notion, related to social norms, and different societies would look at these differently. Therefore referring to laws of other countries to define ‘privacy’ cannot be considered a valid exercise to constrain the Citizen’s fundamental Right to Information in India. Parliament has not codified the right to privacy so far, hence in balancing the Right to Information of Citizens and the individual's Right to Privacy the Citizen's Right to Information would be given greater weightage.





5. BECAUSE, Honorable Central Information Commissioner Prof. M.M. Ansari Wide Decision No.174/IC(A)/2006 in same kind of TEP/RTI matter :



Every action taken by public bodies or public servants and its outcome should be under the domain of public for open scrutiny. It follows that the proceedings initiated by the income-tax department, in pursuance of the tax evasions petition (TEP), and its outcomes should be disclosed, even without asking for such information by the petitioners.



As regards the disclosure of tax assessment orders passed by the assessing officers is concerned, such documents should also be disclosed provided that larger public interest such as containing corruption is served. In the present case, the appellant has not established as to what is the overriding public interest in disclosing the details of tax assessment orders which contains confidential business and financial transactions of the assessees. Unless the case of public interest is established, the disclosure of such information would tantamount to unwarranted invasion of privacy of assessees. Therefore, the decision of appellate authority is upheld. The CPIO is, however, directed to furnish the Action Taken Report on the TEP filed by the appellant. The appeal is accordingly disposed of.



6. BECAUSE, Honorable Central Information Commissioner Shri M.L.Shrma wide Decision No. CIC/AT/A/2008/01389 dated 28-01-2009 in a same kind of RTI of dowry matter direct AA Income Tax



In view of the above, Ms. Vandana Ramachandran (AA) is hereby directed to disclose the above mentioned information to the Appellant within two weeks time.



7. BECAUSE, Honorable Information Commissioner Shri Sailesh Gandhi of CIC bearing his Decision No. CIC/SG/C/2009/000702/4128 dated 14-07-2009 where he defines the concept of privacy ,which may act as a guidance for every public information officer



This information is very important for the Complainant as he is facing a threat of arrest and needs the information to prove his innocence. Not granting such information clearly leads to violation of the fundamental right of the Complainant as provided under Article 21 of the Constitution. If The Complainant has more than one way of seeking remedy he has the freedom to opt for the way which is more convenient for him. No claim has been made by the PIO of any exemption under the RTI Act to deny the information. If a Public Authority has a procedure of disclosing certain information which can also be accessed by a Citizen using the Right to Information Act, it is the Citizen’s prerogative to decide which route he wishes to take. The existence of another method of accessing information cannot be a justification to deny the Citizen his freedom to exercise his fundamental right codified under the Right to Information Act. If the Parliament wanted to restrict this right, it would have been stated expressly in the Act. Nobody else has the right to constrain or limit the rights of the Sovereign Citizen. There is no provision in the Right to Information Act which restrains the Citizen’s right to use it if another route to access information has been offered. It is a Citizen’s right to use the most convenient and efficacious means available to him.





8. BECAUSE, Honorable Chief Information Commissioner Shri Wajahat Habibullah of CIC bearing no CIC/WB/A/2007/00064 dated 19-11-2007 where he defines the concept of privacy ,which may act as a guidance for every public information officer “We have in earlier decisions also sought guidance from the U.K. Data Protection Act, 1998 on the definition of private information u/s 2, which defines ‘Sensitive Personal Data’, which reads as follows:

In this Act “sensitive personal data” means personal data consisting of information as to:

a) The racial or ethnic origin of the data subject

b) His political opinions

c) His religious beliefs or other beliefs of a similar nature

d) Whether he is a member of a Trade Union

e) His physical or mental health or condition

f) His sexual life

g) The commission or alleged commission by him of any offence

h) Any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.

If we were to construe privacy to mean protection of personal data, this would be a suitable reference point to help define the concept.”





9. BECAUSE, “In Peoples Union of Civil Liberties Vs. Union of India, however, in his judgment of 13.2.2003 Shri P.V. Reddy J. has ruled as follows :



"When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest. The right to know about the candidate who intends to become a public figure and a representative of the people would not be effective and real if only truncated information of the assets and liabilities is given.”



10. BECAUSE, Further for contesting the election every candidate is required to provide information regarding his property/assets during filing of nomination which is disclosed even in news papers and media so that every citizen can know the assets of the candidate. When such rigorous norms are fixed for Candidates for elections, who are in service for only the limited term of their office, the government servants, engaged in life long service cannot be exempted. Rather I am of the opinion that the public authorities should Suo Moto publish these information in their official websites under Section 4 of the RTI Act. This action is expected in the light of decision of Hon’ble Supreme Court of India in ‘Civil Appeal No. 7178 of 2001- Union of India Vs Association for Democratic Reforms and another’





11. BECAUSE, It becomes increasingly imminent and added responsibility of the concerned authorities to make an enquiry into such allegations and ascertain the actual truth behind the true source, if any, of these alleged payments / expenses, so as that innocent people like me does not get harassed due to the ultier motives of some mischievous people.



12. BECAUSE, Sections 8 did not justify withholding of the said information, but incorrectly applied Sec 8 of the Act. He submits that the disclosure of the said information could not in any way impede the investigation process and that the Respondents have not given any reasons as to how such disclosure would hamper investigation. On the other hand, contends, the information would only help in absolving undersigned from the false prosecution and criminal harassment.



13. BECAUSE, as to the issue of whether the investigation has been complete or not, I think that the authorities have not applied their mind about the nature of information sought. As is submitted by the Petitioner, he merely seeks access to the preliminary reports investigation pursuant to which notices under Sections 131, 143(2), 148 of the Income Tax have been issued and not as to the outcome of the investigation and reassessment carried on by the Assessing Officer. As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assesses, the respondents could not have rejected the request for granting information.



14. BECAUSE, Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.





15. BECAUSE, The State has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade the privacy of a Citizen. In those circumstances special provisions of the law apply; usually with certain safeguards.



Therefore where the State routinely obtains information from Citizens, this information is in relationship to a public activity and will not be an intrusion on privacy. As this information has been provided by the assessee to meet his legal obligations, there is no unwarranted invasion of his privacy by the state. Therefore the disclosure of the same information to another person cannot be construed as being an unwarranted invasion of the privacy of the individual. Given our dismal record of misgovernance and rampant corruption which colludes to deny Citizens their essential rights and dignity, it is in the fitness of things that the Citizen’s Right to Information is given greater primacy with regard to privacy. Hence information provided by individuals in fulfillment of statutory requirements will not be covered by the exemption under Section 8 (1) (j). Citizen’s Right to Information is given greater primacy with regard to privacy.



16. BECAUSE, as per provision of the act before the rejection of the application on the ground of the CPIO should asked the third party and also should have given me a opportunity to present my case.



17. BECAUSE, the large public interest which overwrites the third party interest, the PIO has failed to act so.



18. BECAUSE, the PIO has failed to access the information available to him in his statutory capacity as PIO u/s 5(1) of RTI Act read with 5 (4) and 5 (5) of the RTI Act.





According the appellant is constrained to PRAY for the following reliefs:



That the PIO be ordered to provide the appellant the requested information forthwith



2. That a personal hearing be afforded to the appellant u/s 19(5) of RTI Act and interests of natural justice in the event the PIO opts to justify and/ or prove the willful denial of information to the appellant.



3. That a copy of comments/ reply of PIO, if any, to this First Appeal be provided to the appellant well in advance of the hearing date.





Moreover as per RTI act 2005 section 8(j) itself it is written that “Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person”





Now at the end I may reasonably expect that honorable CPIO & Addl. Commissioner of Income Tax will honor the numerous decisions of CIC and Honorable High court as stated above while making decision on this appeal so that at least the wastage of time for honorable CIT / CIC could be avoided in second appeal while discussing the same matter.







Yours Truly,







Your Name

Address



Verification



I, the deponent named herein do verify that the facts as narrated above are true and correct to my best knowledge and belief.



Deponent







(YOUR NAME)



Enclosures : As Above