Central Information Commission
Mranil Bairwal vs Cbdt on 10 August, 2016
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August KrantiBhawan, BhikajiCama Place, New Delhi 110 066)
Shri Basant Seth & Prof. M. Sridhar Acharyulu
Central Information Commissioners
CIC/DS/A/2011/004218
CIC/DS/A/2011/004189
CIC/DS/A/2011/004205
CIC/DS/A/2011/004216
CIC/DS/A/2011/004220
CIC/DS/A/2011/004231
CIC/DS/A/2011/004234
CIC/DS/A/2011/004188
Appellant : Anil Bairwal
Public Authority: Commissioner of Income Tax1
Date of Hearing : 14.06.2016
Date of decision : 10.08.2016
1. Appellant, Mr Anil Bairwal, filed RTI application wherein he had sought information in respect
of tax returns of Members of Parliament. Mr. Anil Bairwal was absent. There are eight such second
appeals before this bench.
2. Mr. Vikas Chaudhary, ACIT/CPIO, Circle 64(i) was present before the Commission in Appeal
No. 4218, and Ms. Archana Sinha, advocate represented Commissioner of Income Tax -
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Patna. The representatives from Chandigarh, Pune, Hisar and Bombay were not present at
their scheduled NIC studios.
Factual background
3. Appellant filed RTI Applications, in February 2010, seeking Income Tax Returns (ITR) related
information of following 20 Lok Sabha members:
Sl. Name of the MP Party State (Constituency) Permanent Address
No.
1. Shri Naveen Jindal INC Haryana (Kurukshetra) Jindal House, Mohan Nagar,
Pipli Road, Kurukshetra136118,
Haryana.
2. Shri Uday Singh BJP Bihar (Purnia) Maul Babu Hata, Madhubani,
Purnea, Bihar
3. Smt. Meneka BJP Uttar Pradesh (Aonla) A4, Maharani Bagh, New Delhi
Gandhi 110065.
4. Shri Sachin Pilot INC Rajasthan (Ajmer) VillageBaidpura, DistGautam
Budh Nagar, UP.
5. Shri Dushyant Singh BJP Rajasthan (Jhalawar Raj Niwas, Dholpur, Rajasthan.
Baran)
6. Dip Gogoi INC Assam (Kalibabor) Village Nazir Ali, PO/DistJorhat,
Assam.
7. Kumari Selja INC Haryana (Ambala) 87, Durrand Road, Ambala Cant.
Haryana.
8. Shri Jyotiraditya INC Madhya Pradesh (Guna) Jai Vilas Palace, Lashkar,
Madhavrao Scindia Gwalior470004, Madhya
Pradesh.
9. Shri Navjot Singh BJP Punjab (Amritsar) 213, EBlock Ranjit Avenue
Sidhu Amritsar, Punjab.
10. Shri Beni Prasad INC Uttar Pradesh (Gonda) Village Sirauli, PO Gauspur, Dist
Verma Barabanki225001.
11. Dr. Shafiqurr Ahman BSP Uttar Pradesh (Shabhal) Mohalla Deepa Sarai, Sambhal,
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Barq DistMoradabad244001.
12. Smt. Usha Verma SP Uttar Pradesh (Hardoi) 78, Peni Purva Railway Ganj,
Hardoi229123.
13. Shri Ajit Singh RLD Uttar Pradesh (Baghpat) 12, Tughlak Road, Nerw Delhi
110011.
14. Lalu Prasad Yadav RJD Bihar (Saran) Village Samanpura, Bihar
Veterinary College, Patna
800014 and
5, Deshratna Marg, Patna
(Bihar).
15. Shri Mohan Jena BJD Orissa (Jaipur) At. Sasansima, PO Dhanmandal,
DistJaipur, Orissa754024.
16. Shri Baju Bajn CPM Tripura (Tripura East) Vill and POEast Bagafa, PS
Riyan Santir Bazar, DistSouth Tripura
799144.
17. Shri T. R. Baalu DMK Tamil Nadu (Madras 28, United India Colony, First
South) Cross Street, Kodambakkam,
Chennai600024.
18. Shri Sharad NCP Maharashtra (Madha) Govind Bagh, Baramati, Dist.
Chandra Govindrao Pune413002.
Pawar
19. Shri Shivaji SHS Maharashtra (Shirur) At PostLandewadi, Taluka
Adhalrao Patil Ambegaon, DistPune410503.
20. Smt. Paramjit Kaur SAD Punjab (Faridkot) 472, Model Town Urban Estate,
Gulshan Phase1st Bhatinda151001.
The appellants asked information about these MPs falling under different zones of IT
department, in eight appeals:
a) Whether these MPs have filed their ITRs for the years 2004 to 2009?
b) The years for which these MPs have not filed their ITRs,
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c) The details of ITR and Assessment Orders for all the years for which these MPs have filed
their returns.
4. The CPIO Ms. Monika Rana, Asst Commissioner of IT Circle 40(1) considered information
sought as third party information. She issued notices under Section 11(1) of RTI Act to two
MPs as they come under their Circle's territorial jurisdiction; Smt. Kumari Shelja and Shri Ajit
Singh, in response, requested not to disclose their ITRs. Based on that, CPIO refused
information under 8(2)(j) and (e) of RTI Act of 2005.
5. In First Appeal the authority, Mr. Rajiv Kumar, Additional Commissioner of Income Tax,
Range40, New Delhi declined to interfere with the order of CPIO dated 7.4.2010.
6. Mr. Anil Bairwal filed second appeal dated December 19, 2011 praying for disclosure of ITRs,
Assessment Orders and other details, claiming overriding public interest. He stated that there
was enormous increase in the properties of the MPs as reflected in ADR reports, which was
not considered and that the people have right to know it.
7. Assuming that the issue is of larger public interest, Learned CIC Shri Rajiv Mathur had
referred the matter to a larger bench.
Hearing before the Bench on 23rd May 2016.
8. Appellant Anil Bairwal was not present. Mr. Vikash Chaudhary submitted that he joined just
two weeks before as CPIO. He did not bring the file of earlier PIO. When questioned whether public
interest factor in disclosure or protection was examined, CPIO could not reply saying he joined two
weeks ago and he did not have file. Mrs Sinha, counsel representing IT Commissioner, Patna, was
also not in a position to assist the bench on this question as she did have any file.
9. Points (a) and (b) of RTI application are: whether these MPs have filed their ITRs for the
years 2004 to 2009, the years for which these MPs have filed their ITRs or not, should have
been answered by the public authority. . It was not done. Point (c) was refused.
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Appellant's contention
10. The appellant contended as per records: To secure the purity of elections and probity in
public life, the Representation of the People Act, 1950 was amended in 2002, Section
33A and 33B have been introduced requiring contesting candidate and give their economic,
academic and criminal background. (ADRN Vol(2002) 5 SCC 294).
11. Section 125A inserted in 2002 provides for prosecution if the candidate fails to furnish the
information specified in Section 33A or gives false information which he knows or has reason
to believe to be false.
12. In support of public interest in furnishing information, the appellant submitted the following
points in two appeals bearing No. 4218 and 4231 came up for hearing on 22.11.2012 before
the Commission:
• As per study of ADR, average increase in assets of MPs based on their selfdeclaration with
election commission shows a very high increase from year 2004 to 2009.
• As per election commission directives, this information is already available in public domain.
• PMO has asked Ministers to voluntarily declare their assets and liabilities.
• A register of member's interest of Rajya Sabha MPs is already in public domain and Lok
Sabha is planning to have on similar lines as recommended by Chairman of Ethics
Committee, 2001.
• Supreme Court in its judgement in PV Narasimha Rao v. CBI and (Writ Petition No.
490/2002), in PUCL and Ors. Vs Union of India, has held that MPs & MLs public servants
and they have to disclose their assets .
• CIC in its decision dated 29.04.2008 in Ms. Anumeha C/O Association of Democratic
Reforms while permitting disclosure of IT returns of Political Parties observed that the
contention that all IT returns are permanently barred from disclosure is not correct. This
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information can be disclosed in public interest either in a given case or a class of cases under
Income Tax Law.
13. According to ADR study highlights two major facts:
a) Disproportionate Increase in Assets of Elected Representatives: Analysis of
MPs from the Lok Sabha 2014 Elections, Rajya Sabha 2016 Elections as well as MLAs
from the recently concluded State Assembly Elections (Tamil Nadu, Puducherry, Kerala,
Assam, West Bengal) reveals that many MPs and MLAs have registering an 'abnormal'
increase in the value of their assets since the last elections. The assets of 4 current
Lok Sabha MPs have increased over 1200%. 22 other Lok Sabha MPs have
declared an asset increase of over 500%. The case is similar for State Assemblies as
one MLA from Assam has declared an increase of over 5000% in his assets from
2011 to 2016.
b) Absence of Income Tax Declaration in the affidavits of MPs & MLAs: Analysis
of data reveals that a large number of MPs and MLAs do not disclose details of their
Income Tax Returns. 24 Current Lok Sabha MPs have declared assets worth Rs 1
crore but have not filed their Income Tax Returns as per their selfsworn
affidavits. The case is similar for State Assemblies as 84 MLAs from Kerala and 58
MLAs from West Bengal have not disclosed details of their Income Tax Returns.
14. Appellant explained that these 20 MPs were selected to seek ITR related information, to
show the fact that cutting across regions, professional background, political background, political
affiliations, social standing, generally all MPs showed an increase in their assets. As can be seen
from the first table (titled "Asset Comparison for Re elected MPs 2009") in the attached
document, each of the 20 MPs has declared a substantial increase in the value of their
assets from the Lok Sabha 2004 Elections to the Lok Sabha 2009 Elections. The increase in
the percentage of assets ranges from 95% to 1746%. It is worth pointing out that only 4 MPs from
the list of 20 considered by us were reelected in the Lok Sabha 2014 Elections. As the
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second table (titled "Asset comparison for reelected
MPs 2014 ") suggests, each of the 4 MPs has
declared increase in assets between the Lok Sabha 2009 and the Lok Sabha 2014 Elections,
ranging from 100% to 273%. ADR has issued two documents "Income Tax Returns of 20 MPs
ADR submissionJune 23, 2016", b) NEW Report on Asset Comparison of Reelected MPs and MPs
who recontested but lost in Lok Sabha 2009 elections.
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Table 1 Asset Increase from Lok Sabha 2004 to Lok Sabha 2009 Elections
%
Sl. LS Seat Assets
Name Party 2009 State LS Seat 2009 Assets 2009 Asset Increase Increase
No. 2004 2004
in Asset
Rajast 4,64,89,558 25,19,000 4,39,70,558
1 Sachin Pilot INC Ajmer Dausa 1746%
han 4 Cror+ 25 Lacs+ 4 Cror+
UDAY SINGH
BIHA 41,91,30,669 3,06,54,143 38,84,76,526
2 ALIAS PAPPU BJP Purnia Purnea 1267%
R 41 Cror+ 3 Cror+ 38 Cror+
SINGH
HARY 1,31,07,30,000 12,12,95,000 1,18,94,35,000
3 NAVEEN JINDAL INC Kurukshetra Kurukshetra 981%
ANA 131 Cror+ 12 Cror+ 118 Cror+
UTTA
R 1,01,11,699 9,76,000 91,35,699
4 USHA VERMA SP Hardoi Hardoi 936%
PRAD 1 Cror+ 9 Lacs+ 91 Lacs+
ESH
RAJA
DUSHYANT 6,41,10,900 70,82,067 5,70,28,833
5 BJP STHA JhalawarBaran Jhalawar 805%
SINGH 6 Cror+ 70 Lacs+ 5 Cror+
N
ASSA 25,39,058 3,42,751 21,96,307
6 DIP GOGOI INC Kaliabor Kaliabor 641%
M 25 Lacs+ 3 Lacs+ 21 Lacs+
HARY 4,67,11,386 71,76,087 3,95,35,299
7 SELJA INC Ambala Ambala 551%
ANA 4 Cror+ 71 Lacs+ 3 Cror+
UTTA
DR. SHAFIQUR R 70,59,763 13,49,151 57,10,612
8. BSP Sambhal Moradabad 423%
RAHMAN BARQ PRAD 70 Lacs+ 13 Lacs+ 57 Lacs+
ESH
UTTA
BENI PRASAD R 2,01,83,574 41,12,560 1,60,71,014
9 INC Gonda Kaiserganj 391%
VERMA PRAD 2 Cror+ 41 Lacs+ 1 Cror+
Table II Asset Increase from Lok Sabha 2009 to Lok Sabha 2014 Elections of four MPs who are reelected
Pa Assets in
rty Consti Lok
S. 20 tuency in Lok Sabha Assets in Lok
No. Name 14 State 2014 Sabha 2014 2014 Sabha 2009 Increase % Increase
23,90,06,
BJ JHALAWAR 838 6,41,10,900 17,48,95,938
1 Dushyant P RAJASTHAN BARAN 23 Crore+ 6 Crore+ 17 Crore+ 273%
33,08,88,
751
IN 33 Crore 14,90,94,212 18,17,94,539
2 Jyotiraditya M. Scindia C MADHYA PRADESH GUNA + 14 Crore+ 18 Crore+ 122%
37,41,32,8
BJ 26 18,28,33,477 19,12,99,349
3 Maneka Sanjay Gandhi P UTTAR PRADESH PILIBHIT 37 Crore+ 18 Crore+ 19 Crore+ 105%
25,38,80,
Adhalrao Shivaji SH MAHA 475 12,71,13,134 12,67,67,341
4 Dattatrey S RASHTRA SHIRUR 25 Crore+ 12 Crore+ 12 Crore+ 100%
As this table suggests, each of the 4 MPs has declared increase in assets between the Lok Sabha 2009 and the Lok Sabha 2014
Elections, ranging from 100% to 273%.
15. The trend of increase in assets of MPs and MLAs is spread over almost all parties except in
case of Communist parties. An analysis of the Lok Sabha 2014 Elections, the recently held
Rajya Sabha elections (June 2016) as well as the recently concluded State Assembly
Elections in Tamil Nadu, Kerala, Puducherry, West Bengal & Assam that reveals a
disproportionate increase in the assets of a large number of elected representatives as
declared by them in their selfsworn affidavits filed with the Election Commission. Analysis
also reveals that a substantial number of elected representatives have failed to disclose
details of their last filed Income Tax Returns. The general public or the voters cannot trace
the reasons for such significant increase in the assets of MPs and MLAs or the reason for
nondeclaration of income tax declaration by many MPs/MLAs.
16. ADR study recommends that the information pertaining to the IT Returns of our Elected
Representatives should be placed in the public domain as the MPs/MLAs are repositories of
public trusts and they have a public duty to perform. It also needs to be emphasized that
Elected Representatives are in public service by their own choice and transparency in their
working and financial operations is essentially in larger public interest. By virtue of the office
they hold, there is a real potential for misuse. Abnormal multiplication of assets in a period of
5 years might raise several questions.
Respondent's contention:
17. Respondents (IT Authorities) presented that Income Tax returns filed by MPs were their private information and hence hit by Section 8(1)(j) of RTI Act. In support of their argument they cited Girish Ramachandra case in which Supreme Court held that details disclosed by a person in his IT returns is personal information which stands exempted, unless larger public interest is involved.
Analysis:
18. The applicant had stated that ADR, a public spirited NGO, publishes reports under title National Election Watch, about assets, educational qualifications, criminal background/cases of contesting, elected, reelected, recontested and lost candidates/MPs and it has secured for voters the right to information about educational, economical and criminal antecedents of contesting candidates much before RTI Act. (ADR vs. UOI, 2002 AIR 2112). This is later codified by Parliament of India.
19. The Appellant sought information from various offices of Income Tax Authority, whether 20 MPs have filed their IT returns for all the five years 200409, year for which they did not file their return, details of their IT returns and assessment orders for all these years. But all these points were rejected en bloc invoking section 8(1)(j).
20. The CPIOs could have examined each point of RTI application instead of rejecting en bloc.
Whether MPs filed IT returns for each year from 200409? 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'.
21. 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.
22. IT department has heavily relied on Girish Ramachandra to deny the information. Former Central Information Commissioner Mr. Shailesh Gandhi, in a writ petition WPC 8753/2013 before Bombay High Court questioned the reasoning and legality of the judgment of Supreme Court in Girish Ramachandra. He cited Supreme Court in UoI v ADR (2002) 5 SCC 294 saying that 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. Mr. Shailesh Gandhi pointed out that Girish Ramachandra did not consider above two important judgments. Bombay High Court rejected this contention and reiterated the conclusion of Girish Ramachandra in its order dated 11th June 2015.
23. Though CPIO has rightly consulted third parties as per Section 11(1) but ignored its proviso.
The proviso to Section 11(1) is very significant.
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 notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
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.
24. Delhi High Court in Arvind Kejriwal vs. Central Public Information Officer AIR 2010 Delhi 216 considered Section 11 of the RTI Act. "The third party may plead a 'privacy' defence. But such defence may, for good reasons, be overruled. After consulting the third party as prescribed under Section 11(1) of the RTI Act the CIC may still decide that information should be disclosed in public interest overruling any objection that the third party may have to the disclosure of such information".
25. Section 8(1)(j) prescribed 'public interest' as a requirement to decide the disclosure of information though exempted. The CPIO or 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. Whether every MP is a public personality and his activities are 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.
26. Section 11(1) also deals with examination of public interest after consulting with the third parties, whose information was sought. The CPIO claimed to have consulted only two MPs out of twenty.
27. In G.R. Rawal Vs Director General of Income Tax (Investigation), Ahmadabad, Appeal No. CIC/AT/A/2007/00490 on 05032008 CIC Full Bench has explained:
Authority may order disclosure of such information if they are satisfied that the larger public interest justifies disclosure. This would imply that even a personal information which has some relationship to any public activity or interest may be liable to be disclosed. An invasion of privacy may also be held to be justified if the larger public interest so warrants. It is, therefore, necessary to analyze 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.
28. The larger public interest has to be examined under RTI Act, public interest referred to in section 11(1) proviso where public interest in disclosure has to be outweighed in importance any injury to interest of third party; Appellant has a duty to explain 'public interest' and CPIO need to examine the same.
29. Section 138(1)(b) of the Income Tax Act is also similarly couched with requirement of examining the public interest factor, which is very significant. This section is referred to by Sh.
A.N. 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 incometax 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.
30. 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.
31. The Bench directs the respondents 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 orders on each point, within three months from the date of receipt of this order.
(Basant Seth) (M. Sridhar Acharyulu)
Central Information Commissioners