Information in income-tax returns cannot be accessed through R.T.I. Act except on ground of larger public interest - T. N. Pandey

Volume XVII Part 2 October 25, 2016 3 Business Advisor
Information in income-tax returns cannot
be accessed through R.T.I. Act except on
ground of larger public interest
T. N. Pandey
[1] Introduction
Before dealing with the issue posed in the title of this
write-up and to make the readers appreciate the
nuisances of the Right To Information Act (RTIA for
short) vis-à-vis the provisions of the I.T. Act, 1961 (Act),
it would be useful to give an account of important
aspects of RTIA. This is being done in the earlier
paragraphs in the article.
[2] The concept of RTIA
The concept of RTIA could be said to be on Aristotle‟s saying long ago when
he observed that the object of the State and society is to make it possible for
individual to lead the highest lifestyle, that the State and the society are hot
ends in themselves and that they are to serve the individual and every
individual, therefore, is entitled to an equal opportunity to share in the
making of common decision, which will ultimately affect him. Faith in the
democratic form of government thus rests on the dictum: “Let people have
the truth and freedom to discuss.” Article 19(1)(a) guarantees to the citizens
of the country freedom of speech and Article 19(2) specifies the restrictions
which can be placed on such freedom. Enactment of the Right to
Information Act, 2005 [which received President‟s assent] on 20th June,
2005] is a step in the direction of effectuating this fundamental right
contained in the country‟s Constitution so that the people may know about
the „decision-making process‟ followed by the Govt. The citizens of the
Faith in the democratic form of government thus rests on the
dictum: “Let people have the truth and freedom to discuss.”

country have the right to know about the affairs of the Govt., having been
elected by them, seek to formulate policies of governance and to judge
whether the same are for their wellbeing and welfare. For this, it is
necessary to know about the vital governmental decisions affecting the
people of the country and the basis for arriving at the same more so when
there is stress on accountability and transparency in Govt.‟s functioning.
The RTI Act contains 31 sections and 2 schedules. Rules namely „The Right
to Information (Regulation of Fee and Cost) Rules, 2005 and the Central
Information Commission (Appeal Procedure) Rules, 2005 have been framed
by the Central Govt. to carry out the purposes of the Act. Various State
Govts. and Lok Sabha & Rajya Sabha Secretariats have issued their Acts,
Rules and Notifications concerning the RTIA legislations relating to
themselves.
[3] Objective of the RTIA
This can be seen from the preamble of the Act, which is reproduced below
for ready reference:-
“RTIA is a legislation to provide for setting out the practical regime of right
to information for citizens to secure access to information under the control
of public authorities, in order to promote transparency and accountability in
the working of every public authority, the constitution of a Central
Information Commission and State Information Commissions and for
matters connected therewith or incidental thereto. Whereas, the
Constitution of India has established democratic Republic; And whereas,
democracy requires an informed citizenry and transparency of information,
which are vital to its functioning and also to contain corruption and to hold
Govts. and their instrumentalities accountable to the governed; And
whereas, revelation of information in actual practice is likely to conflict with
other public interests, including efficient operations of the Govts., optimum
use of limited fiscal resources and the preservation of confidentiality of
sensitive information; And whereas, it is necessary to harmonise these
conflicting interest while preserving the paramountcy of the democratic
ideal; Now, therefore, it is expedient to provide for furnishing certain
information to citizens, who desire to have it. Be it enacted by Parliament in
the Fifty-Sixth Year of the Republic of India.”
[4] Some salient aspects of RTIA
[i] All citizens have right to information.
[ii] The RTIA can, basically, be divided into two parts, namely substantive
and procedural. Section 3 coupled with some other provisions like sections

8, 9, 18, 19 & 20 deals with substantive law provisions while section 6,
along with some other provisions, like section 7, relates to procedural law.
The Act is complete code in itself.
[iii] Application of the RTIA
The Act is applicable in respect of public authorities established, owned or
substantially financed by the Central Govt., the State Govts. and
Administration of Union Territories, including Panchayats, Municipalities
and other local bodies. It extends to the whole of India, except the State of
Jammu & Kashmir, which State has its own RTIA.
[iv] Right to Information is not absolute. It is subject to reasonable
restrictions, inter alia, as contained in section 8 of the RTIA, which provides
that notwithstanding anything contained in the RTIA, there shall be no
obligation to give any citizen -
[a] information, disclosure of which would prejudicially affect the
sovereignty and integrity of India, the security, strategic, scientific or
economic interests of the State, relation with foreign State or lead to
incitement of an offence;
[b] information, which has been expressly forbidden to be published by any
court of law or tribunal or the disclosure of which may constitute contempt
of court;
[c] information, the disclosure of which would cause a breach of privilege of
Parliament or the State Legislature;
[d] information, including commercial evidence, trade secrets or intellectual
property, the disclosure of which would harm the competitive position of a
third party, unless the competent authority is satisfied that larger public
interest warrants the disclosure of such information;
[e] information available to a person, in his fiduciary relationship, unless the
competent authority is satisfied that the larger public interest warrants the
disclosure of such information;
[f] information received in confidence from foreign government;
[g] information, the disclosure of which would endanger the life or physical
safety of any person or identify the source of information or assistance given
in confidence for law enforcement or security purposes;
[h] information, which would impede the process of investigation or
apprehension or prosecution of offenders;

[i] cabinet papers, including records of deliberations of the Council of
Ministers, secretaries and other officers;
Provided that the decisions of Council of Ministers, the reasons thereof, and
the material on the basis of which the decisions were taken shall be made
public after the decision has been taken, and the matter is complete; or
over;
[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
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.
[v] The proviso to section 8 of the Act provides that the information, which
cannot be denied to Parliament or a State Legislature, shall not be denied to
any person. Moreover, section 8(2) of the Act provide as under:-
“[2] Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923)
nor any of the exemptions permissible in accordance with sub-section (1), a
public authority may allow access to information, if public interest in
disclosure outweighs the harm to the protected interests.”
[5] Whether information contained in the I.T. returns of the taxpayers can
be accessed to under the RTIA?
With the above background relating to RTIA, the issue raised in the title of
the article and considered by the Bombay HC in the case of Shailesh Gandhi
v. Central Information Commission, New Delhi (2015) 232 Taxman 783/58
taxmann.com 147 (Bom) can be examined.
[5.1] Facts
Shri Shailesh Gandhi made an application u/s 6 of the RTIA to the CPIO
[Central Public Information Officer] of the I.T. Dept., inter alia, requesting
certain information and more particularly the income tax returns and
balance sheets of the respondentNo.3 for the preceding 3 years on the
ground that there was a larger public interest in disclosing this information
to compare his affidavit given to the Election Commission with his income-
tax returns. Since the information related to the respondent No.3, who was
a third party, in terms of section 11, a letter was addressed by the CPIO to
the respondent No.3. The respondent No.3 opposed the disclosure of any
information. Thereafter, the information sought for was denied by the CPIO
observing that the information sought for had no relationship to any public

activity or interest and, therefore, did not qualify in view of the provisions of
section 8(1)(j). On appeal, the petitioner set a further ground that the
information, which cannot be denied to Parliament, a citizen would be
entitled to the same information. The first appellate authority rejected the
said appeal.
[5.2] On second appeal, the Central Information Commission (CIC) upheld
the orders passed by the Public Information Officer and the first appellate
authority. It also referred the judgment of the Apex Court in Girish
Ramchandra Deshpandey v. CIC (2013) 351 ITR 472/(2012) 211 Taxman
46/25 taxmann.com 525, holding that the details disclosed by a person in
his income tax returns is personal information, which has been exempted
from disclosure under clause (j) of section 8(1) unless it involved a larger
public interest and the CPIO and or the State Public Information Officer or
the appellate authority is satisfied that the larger public interest justifies the
disclosure of such information. The CIC observed that the petitioner had not
been able to prove any larger public interest with corroborative evidence.
[6] Writ Petition filed by Shri Gandhi
On being unsuccessful at the RTIA‟s level, Shri Gandhi filed a Writ Petition
before the Bombay HC seeking the information denied by RTI authorities in
original and appellate proceedings. The CIC (2nd appellate authority) in his
order referred to the 5 Member Bench Judgment dated 5.6.2009 of the
Commission wherein the said 5 Member Bench had held that I.T. returns
have been rightly held to be personal information exempted from disclosure
under clause 8(1)(j) of the said Act. The second appellate authority also
referred to the judgment of the Apex Court in Girish Ramchandra
Deshpandey’s case (2013) 351 ITR 472 (SC) holding that the details
disclosed by a person in his I.T. returns is personal information, which has
been exempted from disclosure under clause (j) of section 8(1) of the said
Act, unless involved a larger public interest and the CPIO and or State
Public Information Officer or the Appellate Authority is satisfied that the
larger public interest justifies the disclosure of such information. The CIC
has observed that in the present appeal the petitioner has not been able to
prove any larger public interest with corroborative evidence and, therefore,
upheld the decisions of the CPIC and the first appellate authority and
disposed of the said second appeal.
[6.1] Petitioner‟s grounds
The grounds taken in the Writ Petition were, inter-alia, as under:-

[a] Exemption u/s 8(1)(j) is not applicable in the facts and circumstances of
the case.
[b] That all the three authorities below have failed to appreciate that the
filing of the I.T. returns is a public activity and is a matter of public interest
and hence, privacy of the respondent no.3 is not breached if the I.T. returns
are provided to the applicant.
[c] The authorities below have failed to appreciate the reason why the
application was seeking the said information, which was sought by him by
the application in question.
[d] That the authorities below have erred in applying the judgment of the 5
Member Bench of the Information Commission as also the Judgment of the
Apex Court in Girish Ramchandra Deshpande‟s case (supra) as the facts in
the said cases are distinguishable from the facts of the present case.
[e] The disclosure of information shall be in larger public interest.
[f] That the authorities below failed to consider the application on the
touchstone of the proviso to section 8(1)(j) of the said Act namely that the
information, which cannot be denied to Parliament or the State Legislature
cannot be denied to a citizen.
[g] That a Division Bench of the Bombay HC in the case of Surup Singh Naik
v. State of Maharashtra, AIR 2007 Bom 121 has dealt with the proviso to
section 8(1)(j) and has held in the said case that the information, which
cannot be denied to Parliament or the State Legislature cannot be denied to
the citizen.
[h] The disclosure would lead to reducing corruption and increase faith in
the elected representative.
[i] That it has been held in the matter of Union for Civil Liberties [PUCL] v.
UOI, AIR 2003 SC 2363 as also in the matter of R. Rajagoal case [1994] 6
SCC 632 and in the cases of Association for Democratic Reforms [(2002) 5
SCC 294] and Union for Civil Liberties (supra) that the public interest
element involved in divulging information relating to public servants, MPs
and Ministers outweighs the right to privacy.
[6.2] Submissions on behalf of respondent No.2
These were:-
[i] That the orders passed by the CPIO, the first appellate authority and the
CIC cannot be faulted with in view of the judgment of the Apex Court in the

matter of R.K. Jain v.UOI (2013) 14 SCC 794 and the judgment of the 5
Member Bench of the Commission, whereby it has been held that the I.T.
returns fall in the exempted category u/s 8(1)(j) of the said Act.
[ii] That the petitioner has not been able to connect the information sought,
i.e., the I.T. returns of the respondent No.3 with any public activity of the
respondent No.3 and, therefore, the authorities were right in refusing to
provide the information to the petitioner.
[6.3] Submissions on behalf of the person whose income tax returns were
desired
[i] No case of public interest has been made out and hence, the petitioner
has failed to discharge the burden which would entitle him to the said
information. Reliance was placed on the judgment of the apex court in the
matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi
(2012) 13 SCC 61.
[ii] That in view of the judgment of the Apex Court in Girish Ramchandra
Deshande‟s case (supra), which has been reiterated by the Apex Court in
R.K. Jain‟s case (2013) 14 SCC 794, the information relating to the I.T.
returns falls within the exempted category u/s 8(1)(j) and since no case of
public interest has been made out by the petitioner, the said information
cannot be provided.
[iii] That the judgments, on which reliance is placed on behalf of the
petitioner, have no relevance in the context of the information sought by the
petitioner under the RTIA. The RTIA is a self-contained code and unless
public interest is made out or that the public interest outweighs the right to
privacy of the respondent No.3, the information sought by the petitioner
cannot be provided.
[iv] That the reliance placed on the proviso to section 8(1)(j) is misplaced as
the matter cannot be approached from the perspective and hypothesis that
the information sought cannot be denied to Parliament or the State
Legislature and, therefore, cannot be denied to the petitioner. Parliament
has its own rules of business and it cannot be presumed that the
information in respect of I.T. returns of a member of the State Legislature
would be sought. Reliance is placed on the judgment of a learned single
judge of the Delhi HC in the matter of Vijay Prakash v. UOI (2009) 160 DLT
631.
[v] That the judgment in Surup Singh Naik‟s case (supra) though dealing
with the said proviso is clearly distinguishable on facts and, therefore, the
said judgment has no application.

[vi] That the reason given by the petitioner for seeking the information
cannot stand scrutiny in view of the fact that under the Representation of
the People Act, 1950, if incorrect information is provided by a candidate,
then the candidate can be prosecuted u/s 125 of the said Act. Parliament in
its wisdom having directed the candidate to provide the information to the
extent mentioned in the said Act at the time of filing of the nomination, it is
for Parliament to determine if any further information is required to be
divulged by the candidate for which necessary amendment in the
Representation of the People Act would have to be made. It is, therefore, not
open for the petitioner to contend that the petitioner seeks the information
sought as he wants to crosscheck the information given by the respondent
No.3 at the filing of his nomination form with the I.T. returns.
[vii] That the Election Commission, in the interest of conducting free and
fair elections, has the power to issue appropriate directions. However, since
the Election Commission has not provided for filing of I.T. returns, the said
information cannot be sought by having recourse to the RTIA on the ground
that the information is to be compared with the information given at the
time of filing the nomination.
[7] Court‟s decision
Issue posed for consideration
The issue that the court posed for consideration was whether the petitioner
is entitled to the information he has sought for vide his application filed
under the said Act or whether the said information falls within the exempted
category u/s 8(1)(j) of the said Act.
[7.1] After extracting the relevant provisions of RTIA namely sections 8 & 11
and their analysis and the orders passed by the CPIO and two appellate
authorities, the court has come to the following conclusions:
[i] Referring to the Apex Court‟s decision in the case of Girish Ram Chandra
Deshpande (supra), the court has said that the Apex Court observed in that
case that the details disclosed by a person in his I.T. returns is personal
information, which stands exempted from disclosure under clause (j) of
section 8(1) of the said Act, unless involves larger public interest and the
CPIO or the State Public Information Officer or the Appellate Authority is
satisfied that the larger public interest justifies the disclosure of such
information. To support such view, the court has extracted paragraphs 11,
12 & 13 from the said judgment in Gandhi‟s case.
[ii] Insofar as the judgment in R.K. Jain‟s case (supra) is concerned, the facts
were identical as the facts in Girish Ramchandra Deshpande‟s case (supra)

inasmuch as the information relating to the service record of the third party
was sought by the petitioner, which was denied on the ground that the
same is personal information, which stands exempted u/s 8(1)(j) of the said
Act. The Apex Court referred to the judgment in Girish Ramchandra
Deshpande‟s case (supra) and especially paragraphs 11 to 13 thereof and
thereafter, concluded that the said information could not be provided and
accordingly affirmed the judgment of the Division Bench of the HC. To
support the view expressed, the court extracted paragraph 21 from R.K.
Jain‟s order of the Apex Court in Gandhi’s case.
[iii] Insofar the judgment of the 5 Member Bench of the Commission is
concerned, the 5 Member Bench has whilst deciding the appeal has referred
to various judgments of the Commission and thereafter has concluded that
the I.T. returns fall in the category of personal information and are
therefore, exempted u/s 8(1)(j) of the said Act.
[iv] On the basis of foregoing decisions, the court has concluded that the I.T.
returns constitute personal information and are exempted from disclosure
u/s 8(1)(j) and that the said personal information can only be divulged if the
CPIO or the State Public Information Officer reaches a conclusion that it
would be in the larger public interest to reveal such information. The court,
referring to Girish Ram Chandra Deshpande‟s case (supra) has said that the
court was directly concerned with the issue that the petitioner has raised in
the Writ Petition regarding the applicability of section 8(1)(j) of the RTIA and
held that the details in the I.T. return of the assessee are personal
information and can be disclosed only if larger public interest so warrants.
[v] Referring to sections 33A, 33B and 125A of the Representation of the
People Act, the court has observed that it cannot be contended by a citizen
that to check the information given by a candidate in his election papers
under these sections of the RP Act, he is authorised to get information from
the I.T. returns of the candidate, which is his personal information.
[vi] Since the right to privacy has been recognised as a fundamental right to
which a citizen is entitled to, unless the condition mentioned in section
8(1)(j) is satisfied, the information cannot be provided. Hence, the burden on
the applicant is much more onerous than may be a routine case. The reason
mentioned in the original application as supplemented by the grounds in
the first appeal hardly makes out a case of public interest.
[vii] The petitioner placed reliance on the proviso to section 8(1)(j) of the
RTIA to contend that the authorities below have not considered the
application of the petitioner on the touchstone of the said proviso. The
proviso to section 8(1)(j) had come up for consideration before a Single

Judge of the Delhi HC in Vijay Prakash v. UOI (2009) 160 DLT 631. The
Judge concluded that if the proviso is to be interpreted in a manner that
Parliament has the right to demand any information then there would be
nothing left to the right to privacy, which has been elevated to the status of
a fundamental right by several judgments of the Supreme Court.
[viii] The exemption u/s 8(1)(j) had come up for consideration before the
Apex Court recently in Bihar Public Service Commission v. Saiyed Hussain
Abbas Rizwi (2012) 13 SCC 61. The Apex Court after observing that the
information, which relates to personal information recorded by section
8(1)(j) stands exempted and can be disclosed only if the public interest so
warrants, has thereafter held that the said exemption is a statutory
exemption, which must operate as a rule and only in exceptional cases,
would disclosure be permitted that too for reasons to be recorded
demonstrating satisfaction to the test of larger public interest.
[ix] The filing of I.T. return by a person is not a public activity but an
obligation, which a citizen owes to the State, viz. to pay his taxes, and since
the information received is in a fiduciary capacity, the same cannot be
disclosed to a third party in terms of RTIA unless disclosure can be justified
on wider public interest.
[8] Concluding comments
The court has dismissed the Writ Petition and has approved the order
passed by the CIC, confirmed the orders passed by the First Appellate
Authority and the CPIO saying that it does not suffer from any illegality or
infirmity for it to interfere in its writ jurisdiction. The crux of the court‟s
decision is that the details disclosed by a person in his I.T. returns are
personal information, which stands exempted from disclosure under clause
(j) of section 8(1) of the RTIA unless it could be argued that its disclosure
serves larger public interest.
(T. N. Pandey is Former Chairman, Central Board of Direct Taxes.)
The crux of the court‟s decision is that the details disclosed
by a person in his I.T. returns are personal information,
which stands exempted from disclosure under clause (j) of
section 8(1) of the RTIA unless it could be argued that its
disclosure serves larger public interest.

Information in income-tax returns cannot be accessed through R.T.I. Act except on ground of larger public interest - T. N. Pandey

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