Information regarding Third Party Income Tax Assessment

[TKSMART 0]

Assessment of Mr. X was completed for Assessment Years 1994-95 and 1995-96. The same was reopened by Department after a lot of complains of manipulation against which Mr. X approached High Court by filing Special Civil Application(SCA) in the year around 1997. The case prolonged till 2009 and when the High Court expressed their unwillingness to pass order in his favour, Mr. X asked permission to withdraw his SCA which was granted. After this, it appears that Mr. X manipulated to ensure that his file does not reach the concerned department for his reassessment. His case has a direct bearing on my Income Tax Assessment for which Department has gone against me in the Tribunal.

Assessments are reopened only for addition. However, I have a feeling that Mr. X is ensuring to see that his assessment becomes time barred and his files after withdrawal of SCA never reach the concerned ITO. For this reason, I filed an RTI asking information whether reassessment orders have been passed for Mr. X and when. I also stated in my application that if the assessment is allowed to be lapsed, there will be substantial revenue loss to the Government.

The PIO in his first order u/s 7(1) stated that his office does not possess the information sought by me. I went in appeal against this order stating that Mr. X is assessed by the PIO and he should have provided the information or should have passed on my application to the ITO who has this information. Appellate Authority passed the order in my favour asking PIO to look at my application a fresh and provide the information within the provisions contained in the RTI Act.

Now I received the second order from the same PIO u/s 7(1) stating that the information sought by the applicant pertains to third party and relates to personal information and disclosure of the same has no relation to any public interest. Further, he has stated that the concerned third party has strongly opposed for disclosure of information which relates to personal information and hence he is rejecting my application keeping in view the provisions contained in section 8(1)(j) of the RTI Act.

I am at a loss to understand how my asking whether 'reassessment order is passed and when' will reveal any personal information supplied by Mr. X to Income Tax Department. I am not asking for any income details or copy of the Assessment order. And definitely there is a public interest to the fact that Govt. will loose a lot of revenue by a technical fault of not carrying out reassessment within prescribed time frame.

Can any one guide me as to what should be my reasons/ground of appeal and prayer/relief be sought and ground for the same.

[karira 5,897]

File a first appeal against the present order of the PIO.

[TKSMART 0]

Yes I will. But what should be proper wordings for ground of appeal and prayer/relief?

Besides, I want to know whether the information I have asked can be classified as personal and confidential information of a third party? I am asking for the information regarding the action taken by the govt. against an assessee and not what assessee has disclosed to ITO.

[karira 5,897]

Grounds:

 

1. The PIO has incorrectly invoked Sec 11. Sec 11 only outlines a procedure to be followed by the PIO in case of certain categories of information. Sec 11 does not give any PIO the right to deny information. This is definitely not "third party" information. You only asked for whether the reassessment orders have been passed and the date of the order. None of this was ever submitted by the third party r can be treated by anyone as "confidential". The fact that a reassessment order was issued or not is a fact on record and so is the date.

Pick up more points from this judgment of the Delhi HC on "third party": Delhi HC judgment on Sec 11 and third party - Downloads - RTI INDIA

 

2. Even 8(1)(j) is not applicable here.

8(1)(j) states:

j. information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

 

Are the two bits of information you asked for "personal information" ? How will disclosure of a date invade the privacy of a person ?

Use the "interpretation" of Sec 8(1)(j) as given in this decision of the CIC: http://www.rtiindia.org/forum/85629-details-passport-issued-other-persons-not-under-section-8-1-j-rti-act-cic.html

 

3. In any case, under Sec 7(8), the PIO has to provide cogent and coherent reasons for denying information. Just quoting the section ad-verbatim (as is done in this case) is not reason enough. The PIO has to apply his mind and explain to the applicant as to how that particular exemption is applicable in the instant case. Cite CIC orders from Post # 5 of this thread:

https://www.rtiindia.org/forum/6521-rti-help-commercial-confidence-its-misuse.html

 

The prayer will obviously be to direct the CPIO to provide the complete information you asked for in the RTI application.

 

I suggest that you leave out "larger public interest" at this stage.

[jetley 179]

1. PIO cannot simply say that he is rejecting your application keeping in view the provisions contained in section 8(1)(j) of the RTI Act. He is duty bound to give you the details of reasoning process through which he arrived at this decision, i.e. how he derived that the said section was applicable in your case.

 

2. You need to specify how the concerned information is relevant to you and how public interest is involved in its disclosure (say, through malpractice / violation of I.T. laws). In the absence of such specification from your side, the PIO may not be wrong, and may get away by classifying it as personal, having no bearing on any public activity.

 

3. There is nothing like confidential information as far as RTI is concerned (Read sec. 22 and other relevant sections of the RTI Act).

 

4. 3rd party does not have veto over disclosure of information. Section 11 is only a procedural section, it cannot be invoked to reject information.

[TKSMART 0]

Thanks, Karira & jetley. Your input is very valuable. I have now filed an appeal against the order. However, before I received the order, I had filed another RTI on Dec 12, 2011 asking for following information:

1)Name of the assessing officer and office where Mr. X (with PAN No)is being assessed for A.Y. 2009-10,2010-11 and 2011-12.

2)Provide the date of receipt of Gujarat High Court Order by the assessing officer of Mr. X against his special civil application filed in response to reopening of his assessments of A.Y. 1994-95 and A.Y. 1995-96.(I had attached a copy of the High Court order which was available on line.)

3)Whether the assessing officer has completed the reassessment of Mr. X after the receipt of the high court order and when.

4)Provide copy of the reassessment orders if the same have been completed after the Gujarat High Court order in July 2009.

Again, against this application, I received the order under section 7(1) dt. 30/12/2011 from PIO, Ahmedabad stating as follows:

"After the examination of the application, it has been found that the information sought by the applicant pertains to the third party and relates to personal information and disclosure of the same has no relationship to any public interest. Further, as the information pertaining to to third party, the concerned party have strongly opposed for disclosure of information which relates to personal information. Thus keeping in view the provisions contained in section 8(1)(j) of the RTI Act, the application is hereby rejected."

I believe, they are hiding their lapse under the shelter of third party information. I am at a loss to understand how the dates of receipt of high court order or date on which his reassessment is done or asking who is the assessing officer affects the privacy of third party. Yes, I agree that copy of the assessment order will affect the privacy; but other than that they could have provided the balance information.

I will file an appeal; but are there any case judgement to provide this kind of information which I can quote in my appeal. My only purpose of filing this RTI is to awaken the department that they have to complete this reassessment before the time barring period; otherwise, govt. is likely to loose substantial revenue. Also to awaken them if any one is playing mischief in misplacing the files. Further, it will definitely help me in my assessment in further appeals by the dept. aqainst me.

It is strange that the PIO in his order dt. 22/11/2011 states that his office does not possess the information sought by me in my application and the same PIO in his order dt 19/12/2011 and 30/12 2011 states that he can not provide the information since it is third party information.

Does any one has any suggestion on how to file a fresh RTI to get these information.

[jetley 179]

Rejectn us 8 needs 2 b fully explained WB-17042009-04.pdf

 

You may also quote the very valid points specified by yourself to point out the larger public interest involved in disclosure of the sought information.

[karira 5,897]

There is no point in filing another RTI application. Better to go for first appeal and then second appeal.

[TKSMART 0]

I have now received a letter from Jt. Commissioner of Income Tax Range-9(Appellate Authority) for my appeal which I filed against the order of PIO as mentioned in Post #1 with the help of points mentioned by Karira in post #4. He has given me an opportunity of being heard in the matter on 30th Jan. at Ahmedabad and asked me to produce in person or through authorized representative all facts and evidences which I rely on.

I am from Mumbai and I have mentioned exactly what karira mentioned in his post #4 as grounds of appeal. What further evidence can I produce? Will it be worth while going for personal hearing for 1st appeal?

[karira 5,897]

The chances of success increase dramatically if you go for the first appeal hearing in person.

 

If you choose not to go, the FAA will decide the matter based ion the available records (your written submissions, etc.).

 

Remember that if you are not satisfied with the FAAs order, you can still go for second appeal but at present, the waiting time in the CIC is over one year. Therefore it is better to get the "information" at the FAA level itself.

[dr.s.malhotra 1,471]

As Sh. Karira has suggested , your presence at FA hearing will make a difference . Unless someone is personally interested in the case in the department , you can expect Information as per provisions of Act . Most Senior Officers of this department are intelligent and can be convinced and persuaded to part with Information .

[TKSMART 0]

As suggested, I will attend the hearing and argue that the information asked by me is not confidential information and does not affect privacy of the third party and what I am asking is the fact on the record of the department. However, during hearing, the topic is bound to come up regarding the need of my seeking the information. My need is on for following reasons: 1) It helps me in my case where department has gone in appeal in tribunal against the CIT appeal order in my favour since the same income is proposesd to be added in third party and my case. 2) If reassessment of the Third party escapes on technical ground due to it becoming time barred, large amount of income is going to escape assessment.

The Third party and his representative has lot of clout in the dept. Under this circumstance is it in order if I don’t mention the reason and simply argue sticking to my grounds of appeal that the information asked for by me are not confidential and does not affect the privacy. Do I also submit the copy of the notice by department for reopening of the assessment of the third party which I received as certified copy from the High Court as well as copy of the High court order stating that they are not inclined to rule in favour of the Third party and offered option of withdrawing his appeal against the department for reopening his assessment? This will prove that information is not confidential.

Is it in order for me to represent my case or do I need some legal representative? If, yes, do you have any suggestion of RTI activist who has income tax background in Ahmedabad?

[karira 5,897]

Do not even get into the trap of "need for information".

If and when the topic comes up, please point to Sec 6(2) of the RTI Act:

 

2. An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

 

Stick only to the RTI related issues on hand. Why are you bothered about "third party" ? That is the headache of the CPIO and FAA. You just say what you mentioned in the first appeal grounds regarding Sec 11 (please see my earlier post).

 

==========

 

The hearing by the FAA is to decide the dispute between you and the CPIO - related to disclosure of information you requested. Please do not raise extraneous issues during the first appeal. hearing.

[TKSMART 0]

I did appear for personal hearing by visiting Ahmedabad from Mumbai. I received the order which is very frustrating. Unfortunately, the officer who gave me the hearing was also the one who represented Department in the High Court and apparently he was aware of the case.The summary of the order dt Feb 3, 2012 which I received on Feb 8, 2012 is as follows:

According to his order, he says that my contention that I have not sought the information regarding third party is devoid of merits as it is admitted fact that the applicant has not sought for details of assessment made in his own case but he has sought for in the case of Mr.X and who is definitely a third party. Further, he says that the applicant has failed to submit any proof or explanation as to how the information sought for by him is in the larger public interest. Referring to RTI Act 2005, he says that information related to third party should not be disclosed unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. He also mentioned that in his order of CPIO, he has observed that the third party has strongly objected to give the information sought by the applicant. His conclusion is that the CPIO has rightly rejected the the application for the information sought by me. He has quoted following citations:

a) Jasvinder Singh Rana Vs Bank of Baroda, Appeal No. 19/IC(A)/2006 - Order dt. 29-03-2006

b) Ganesh Kumar Thevar Vs The commissionerate of Customs, Mumbai, Decision No. 227/IC(A)/2006- F.Nos. CIC/MA/A/2006/00551- dt. 01-09-2006

c) P. Kulandaivelu Vs Department of Posts, Decision No. 2256/IC(A)/2008-F.No.CIC/MA/A/2008/00147- Decision dt. 22-04-2008

d) Rakesh Agarwal, Secretary, NyayaBhoomi Vs CIT, New Delhi, Appeal No. CIC/MA/A/2006/0066- order dt. 04-05-2006

e) Padam Kumar Jain Vs Dena Bank, Appeal No. 32/IC(A)/06- Order dt. 02-05-2006.

 

I was so frustrated that I did not want to file second appeal. However, if you think I have a chance to get the information, I will now file second appeal. I have very little time left. Can any one guide me how to file second appeal and what is the format?

[karira 5,897]

The interpretation of "third party" information by the FAA is totally incorrect.

 

It is that information which has been submitted by the third party or relates to a third party.

 

In this case you have sought information on whether reassessment orders have been passed and the date. Both these have been generated by the department as part of its routine activity. How can they pertain to third party ?

 

Please read: http://www.rtiindia.org/forum/11536-applicability-procedure-regarding-sec-11-third-party.html

 

If you argue the case properly you can have a reasonable chance of success ion the CIC.

 

Having come till here why you want to give up. In the Directory section, there are some files uploaded of second appeals filed by me. You can refer to them: karira's Files - Directory