My vigilance proceeding – A violation of Indian Constitution

Date:28.11.2018

Place: Bangalore

To,

The Inquiry Officer,

CIT (A)-3,

Bengaluru.

Respected Sir,

Sub: My vigilance proceeding – A  violation of Indian Constitution - Reg.

Ref: F.No: DGIT(V)/DP/573/4898 dated 12.11.2018.

Ref: Your letter F.No:IP/SSHR/CIT(A)/BNG-3/18-19 dated 26.112018

Kindly refer to the above.

This is further to my letter dated 26.11.2018 & 28.11.2018 regarding the vigilance proceeding. Your conduct of today’s proceeding is totally inappropriate and against the rule of law as you know that I have already expressed clearly that I do not have any iota of faith in you for conducting the vigilance proceeding.

In this connection, Para 3.5 of Chapter XI of the Vigilance Manual (1991 Ed) provides as under:

3.5 Denial of access to documents which have a relevance to the case will amount to violation of the reasonable opportunity mentioned in Article 311 (2) of the Constitution. Access may not, therefore, be denied except on grounds of relevancy or in the public interest or in the interest of the security of the state. The question of relevancy has to be looked at from the point of view of the Government servant and if there is any possible line of defense to which the document may be in some way relevant, though the relevance is not clear at the time when the Government servant makes the request, the request should not be rejected. The power to deny access on the grounds of public interest or security of State should be exercised only when there are reasonable and sufficient grounds to believe that public interest or security of the State will clearly suffer. Such occasions should be rare.

Therefore, I consider your action as not only violating the fundamental rights as guaranteed in Article 311 (2) of the Constitution. Your action is also against the Para 3.5 of Chapter XI of the Vigilance Manual (1991 Ed). Therefore I have already challenged your action as highhanded and beyond the scope of Law of the land.

As you have not only rejected my request in my providing me defence documents but also doing the same with a non-speaking order, I am convinced now that by this vigilance proceeding you have developed personal interest in framing me falsely with the support of disciplinary authority who has falsely created a case of vigilance against me. As you have shown scant respect to the rule based proceeding as prescribed in the vigilance manual I have reason to believe that your integrity is totally doubtful in handling my case.

Seeing your enthusiasm in conducting this proceeding let me share the legality of your action from my sense of wisdom. You are appointed by the same authority which has also appointed me i.e. “The President of India”. The President of India has approved this vigilance proceeding where you are the “Inquiry Officer,” DGIT(Vig)/CVO is acting “Disciplinary Authority” and I am the Charged Officer.” The rule prescribed for conducting this proceeding is clearly given in the “Handbook for the Inquiry Officers and Disciplinary Authority as published by DOPT.” So it becomes clear that neither you nor the Disciplinary Authorities have any scope to go beyond it.

The rule book has clearly prescribed that defence document to the Government Servant SHOULD not be rejected. Which clearly means neither you nor the Disciplinary Authority is bestowed with powers to reject the charged officer, the availability of defence documents.   In the same rule book, Chapter 28 is dedicated for the Inquiry Officer and the Disciplinary Authorities on SPEAKING ORDER. So now you may realise that rejecting the defence document by the Inquiry Officer and the Disciplinary Authority through a non-speaking order is a gross violation to the procedure established by Law.

Let me also share that neither the Inquiry Officer nor the Disciplinary Authority is LAW but are the CREATURES created by LAW, who needs to operate only within the framework of Indian Constitution. It is mandatory that the executives while discharge of functions in their official capacity neither can go against the procedure established by law nor can go against the judgment of the Apex Court as it would tantamount to contempt of Court. I have found in my case that neither you & Disciplinary Authority are following; procedures as mentioned in the “Handbook for the Inquiry Officers and Disciplinary Authority as published by DOPT nor respecting the Hon’ble Supreme Court judgement,” which clearly means you are treating yourself as KING and treating me as a SUBJECT. This open display of bureaucratic arrogance is what I am challenging and refuting by terming it as violation of Indian Constitution.

Let me take you to the journey of my life relating to this very vigilance proceeding which you are already aware of by my letter dated 26.11.2018. This exercise is being done so that you can become empathical and personally experience that how the democratic procedure established by Indian Parliament, which has to be practiced by every authority, connected directly and indirectly, with my case has been demolished right from the time, the vigilance proceeding was created & till date. Let me first bring you the document of the Commission which is the basis for conducting the vigilance proceeding against me.

Launching of a Vigilance Case: On 14.03.2016 I received a communication from the office of PCCIT-Karnataka that a vigilance case initiating major penalty has been launched based on CVC letter vide CVC OM No. 015/ITX/011/301272 dated 03.12.2015 based on the recommendation of CBDT vide DGIT(V)SZ/COM/18/8dtd 05.08.2015.

The excerpts of the letter are as under

Sub: Case against Shri S S Hari Rao, DCIT - reg

1.    CBDT may refer to their F.No. DGIT(V) S/COM/18/08 dated 05/08/2015 on the subject cited above

2.    Considering the facts & circumstances of the case, the Commission in agreement with the CVO and Member (P&V) would advice ‘intitation of major penalty proceedings against Shri S S Hari Rao, the then DCIT.

Further, the Commission observations are as under:

                                                   i.         The officer did not complete the assessment in search cases as per the instructions of the CBDT and in the best interest of Revenue. While some of the allegations are in the nature of what should have been done and what was not done, there is no specific requirement by way of any instructions of the CBDT for making such mandatory requirements before the conclusion of the assessment. However, it suffices to state that the assessments were not done appropriately. According to the Commission the most serious misconduct was relating to the issue of refunds in respect of taxes paid on regular assessments by determining lower income in the search assessments.

                                                  ii.         Even though the provisions relating to approval of the assessment statutorily u/s 153D came into force w.e.f 1.07.2017, there are instructions of the CBDT that the assessment in the Central Circles and in particular assessments were to be completed with the prior approval of the Additional Commissioner, who in fact is supposed to be associated with process of assessment to initiation to completion. The officer does not appear to have followed the said practice.

                                                 iii.         The role of the Additional Commissioner/Joint Commissioner, the immediate administrative superior Sh. S S Hari Rao, the then DCIT Central Circle II also needs to be examined from the point of view of the failure to ensure proper assessments in these search cases. As mentioned above, there are instructions of the CBDT in this regard and apart from the instructions whether or not there are instructions, it is fundamental duty of an Additional Commissioner of the Central Range to monitor and supervise the assessment being made by the assessing officer working under him. Prima facie the Additional Commissioner failed in performing such duty and guiding the AO, resulting in these poor assessments. Further the refunds incorrectly issued on account of determination of lower income in the assessment u/s 153A/153C compared to original  assessments must have been approved by the Additional CIT/CIT concerned. CBDT may identify the person concerned, call for his explanation and take the matter to a logical conclusion.

                                                iv.         The case brings out the classical defect in CBDT Vigilance administration on inordinate delays.

                                                  v.         The irregularities in the assessment completed in February 2007 by the accused officer were brought to the notice of the DG Vigilance/CVO as early as on 03.03.2008. Agreeing with the DG (Inv) that there was gross irregularities in the assessment, CVO opened a common file and called for a further vigilance report. The matter took 7 ½ years to the FSA stage. In fact the last report of the field authorities/Zonal Vigilance to the CVO does not bring anymore new facts that there were originally brought out on 03.03.2008 except updates in the matter of remedial action. Thus the delay in handling the matter apart from failure to handle misconduct enabled the officer to be promoted. There is a need to fix responsibility for the delays in the vigilance set up.

From the above excerpt following points of the Commission becomes clear, which the core of the vigilance proceeding.

                        i.         The case totally vests on the primary Article Charge-1 as it is relating to under assessment of my search assessment case as prepared by DGIT(Vig)/CVO.

                       ii.         There is no provision in the statute for an prior approval for the assessment done as statutory provision u/s 153D came into force w.e.f 1.07.2017, which is after the assessment was done.

                      iii.         It is fundamental duty of an Additional Commissioner of the Central Range to monitor and supervise the assessment being made by the assessing officer working under him. As Shri Narender Kumar, the then Additional CIT, the reporting officer failed in performing this duty, CBDT to take action against him too.

                     iv.         It is a classical defect in CBDT Vigilance administration on inordinate delays.

                       v.         In February 2007 by the accused officer were brought to the notice of the DG Vigilance/CVO as early as on 03.03.2008. The matter took 7 ½ to the CVO and no new facts were brought in these years.

Now I will exhibit how the administration and the CVO committed crimes, time and again, and kept the Commission not only in total darkness but sinisterly designed and executed a false trap against the Charged Officer. Let me share what the core value of administration and vigilance is. The core value for Administration is “WELFARE” & for Vigilance is being “ALERT”. The task for both is to “PROTECT THE INNOCENT and PUNISH THE GUILTY” as it will not only add welfare to the organisation but will make it totally vigilant. It is here I share that how each authority has committed crime in my case since the year 2006-07 which is very much relevant to the vigilance proceeding.

1.    The CCIT-1, Bangalore and the DGIT (Inv), Bangalore: The authorities have failed to take action against the erring officers who attempted spoiled the ACR of the charged innocent officer. The proceedings will clearly show how all the fundamental rules connected for the fair performance appraisal was flouted. A copy of the representation is available vide link http://sanghihari.blogspot.com/2014/12/basis-of-spoiling-my-acr-by-ak.html. This means both the authorities failed in “PROTECTING THE INNOCENT and PUNISH THE GUILTY?” It is also known fact that, neither writing of ACR nor the vigilance proceeding can have element of witch hunting on any Government servant. On this count, both the authorities failed in hailing the edifice of “WELFARE” and being “ALERT.”  The authorities also failed to bring this crucial fact before the COMISSION as a prelude to Vigilance proceeding against the Charge Officer.

2.    The DGIT (Inv), Bangalore:- The charged officer approached the DGIT (Inv), Bangalore for protection, as the same officer who spoiled were sinisterly orchestering the initiating of false vigilance proceeding. A copy of the letter is available vide link http://sanghihari.blogspot.com/2014/12/letter-to-br-sudhakara-pleading-not-to.html . The authority failed in his fundamental duty to protect the innocent officer and became part of the crime in creating false vigilance case against the charged officer. The authority failed again to bring this important fact before the COMISSION as a prelude to Vigilance proceeding against the Charge Officer.

3.    The DGIT(Vig)/CVO :- The story behind the main charge levelled by CVC is that a real estate entity was searched where the search proceedings revealed that income in the hands of partner (HR Ravichandra) was wrongly assessed over the number of years as the individual income instead of income assessed in the hands of partnership firm. The same mistake was corrected during search assessments as revenue gain was observed by me. So it is incumbent that the income in the hands of individual has to be adjusted against the partnership by giving refunds and then adjusting with the partnership firm. Even the statutory procedure is to give refunds in the hand of individual and adjust against the partnership as the same was requested by the assessee. So a natural practice in the Income-tax department the same was followed.

                                                                 i.     The prime allegation in Vigilance:  The prime allegation in vigilance is of under assessment. It is stated that the original income of H R Ravichandra as an individual was Rs. 67,75,690/-. The search assessment assessed by me is in the hands of three partnerships ( i) M/s Royal Shelters, ii) M/s Royal Park Residency iii) Royal Habitat, for the assessment period 2000-01 to AY 2003-04  was Rs. 49,06,370/- which led to a Revenue Loss of Rs. 18,63920.

H R Ravichandra
A.Y	Original Return	Search Assessments
2000-01	554803	554810
2001-02	791118	1966120
2002-03	1211471	2183972
2003-04	4218298	755278
Total	6775690	4906370
Search Assessment leading to a Revenue Loss of Rs. 18,63920/-

* The DGIT(Vig)/CVO even after having the file for more than 7 ½ years has done totaling mistake as the above total of search assessment in the Articles of Charge-1 comes to Rs. 54,61,180. Therefore, apparently revenue loss has came down to Rs. 13,14,150/- instead of Rs. 18,63,920/-.

                                                                ii.     The actual reality of the case is in favor of Revenue:  The net impact of assessment proceeding done by me was reducing the income in the hands of H R Ravichandra and assessing the income in the hands FIVE partnership firms  and not THREE partnership firms as alleged in the Articles of Charge-1. The details are:- ( i) M/s Royal Shelters, ii) M/s Royal Park Residency iii) M/s R S Constructions, iv) Royal Habitat, and v) M/s R S Developers for the assessment period 2000-01 to AY 2003-04 has led to enhancement of Revised income by Rs. 9,90,508 thereby bringing additional revenue of Rs. 31,47,213/- in the form of enhanced Income-tax and Interest under Section 234 B & C.

                                                              iii.     Suppression of Crucial fact by CVO to the Commission: - This fact will clearly bring out that the DGIT (Vig) has falsely framed the charge by suppressing the income assessed in the two partnership firms namely: M/s R S Constructions, and M/s R S Developers and sinisterly taking the income of only three firms (i) M/s Royal Shelters, ii) M/s Royal Park Residency iii) Royal Habitat, to create a revenue loss so that “a major penalty can be initiated despite doing an excellent work in search assessment.

H R Ravichandra
A.Y	Original Return	Search Assessments
2000-01	554803	554810
2001-02	791118	766120
2002-03	1211471	2224488
2003-04	4218298	4195780
Total	6775690	7741198
Search Assessment leading to a Revenue Gain of Rs. 9,65,508/-

Outcome of Search Assessment done by me
Description	Income Returned	Tax	Interest	Benefit to  IT Dept
Original Return Tax @ 30%	6775690	2032707		2032707
Revised Return  @ 35%	7741198	2718169	2461751	5177020
Income enhanced by	965508	685462	2461751	3147213

                                                              iv.     It should be noted that even a kindergarten child knows that total of three entity will naturally appear to be revenue loss as against the total of five entities actually having revenue gain. This becomes a classic case and rare in a vigilance proceeding of harassment and victimisation in the hand of a GATEKEEPER. The irony is that the DGIT(Vig)/CVO sought time from Commission and spent  more than 7 ½ years and still fail to discover the real truth despite having all the material in their possession. This definitely raises the credibility issue of CVO handling my case all along.

                                                               v.     Fudging the facts and doing the totalling mistake:-  Even after having the files for more than a decade the CVO failed in his fundamental duty to unearth the real truth. This fact gives me strong reason to believe that DGIT (Vig)/CVO has failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government Servant thereby contravening the provisions of Rule 3(1)(i),  3(1)(ii), 3(1)(iii) of the CCS (Conduct) Rules,1964.

                                                              vi.     Failure to inform the crucial information to the Commission: The CVO is representing on behalf of Vigilance Commission. It was the fundamental duty of CVO to protect the innocent, to investigate and ensure that the government servant who was being charged is not part of the process of any witch hunting before the launch of the vigilance proceeding. The CVO failed to obtain this information from the DGIT(Inv) - Bangalore and CCIT-1, Bangalore as it was available at their end vide letter dated 05.11.2007 written by the charged officer. A copy of this letter is available vide link http://sanghihari.blogspot.com/2014/12/letter-to-br-sudhakara-pleading-not-to.html

4.    The character and integrity of the prosecution witness: “Holier than thou” is the basic prerequisite that authorities who levels charges on others also must have absolute character and integrity in their own own backyard. Let us see the integrity levels of authorities who are the prosecution witnesses in my case. The details are as under:

a.    Shri D K Jha: - The officer integrity is already questioned by the CVO as he is already covered by CBI in the destruction of crucial evidence in the case of an assessee. The officer is also having other integrity issue in the case where I have carried out a search investigation. The officer is one of the prime conduits in spoiling my ACR.

b.    Shri Narender Kumar:- The Commission has already directed the CBDT to take action as it has found that the officer has failed in performing fundamental duty in my search assessment case by virtue of being the reporting officer. The officer is also one of the prime conduits in spoiling my ACR.

c.     Shri D K Jha, Shri Narender Kumar & Shri Ajit Korde :-  In any jurisprudence for a crime there should be two main elements, that is, ‘mens rea – the guilty mind”, and “actus rea – the guilty action.” The foolishness of all three officer emerge from the fact, that, in their rush of bureaucratic arrogance and high handedness they have not done their proper homework in creating primary Article of charge -1 as the Commission has made the basis for initiating “a major penalty proceeding” through this vigilance proceeding.  The fact is that Shri D K Jha, Shri Narender Kumar & Shri Ajit Korde does not even know that search assessment done by me is in respect of five partnership firm and not three partnership firm. There is a revenue gain and not revenue loss in the search assessments while creating false vigilance proceeding against me. So it’s clear that Shri D K Jha, Shri Narender Kumar & Shri Ajit Korde are guilty of crime in trapping, harassing and victimising and innocent officer by creating a false charge by suppressing the real facts of the case by making an innocent officer suffer for more than a decade.

5.    Farce Vigilance Proceedings under the Inquiry Officer:-  The administration at Bangalore intimated the appointment of Inquiry Officer Shri Harinder Kumar, CIT(A-3), Bangalore. During the course of the inquiry proceedings over a year I found the Inquiry Officer has been biased right from the beginning of the proceedings. For any vigilance case it is the statutory responsibility of the Inquiry Officer to provide for the defence documents to properly defend the officer under the charge. But in my case the story was totally opposite. The details are as under:-

a.      The Inquiry officer denied the defence documents four times and again violating the provision 3.5 of Chapter XI of the Vigilance Manual (1991 Ed) which reads as under: Denial of access to documents which have a relevance to the case will amount to violation of the reasonable opportunity mentioned in Article 311 (2) of the Constitution. Access may not, therefore, be denied except on grounds of relevancy or in the public interest or in the interest of the security of the state. The question of relevancy has to be looked at from the point of view of the Government servant and if there is any possible line of defense to which the document may be in some way relevant, though the relevance is not clear at the time when the Government servant makes the request, the request should not be rejected. The power to deny access on the grounds of public interest or security of State should be exercised only when there are reasonable and sufficient grounds to believe that public interest or security of the State will clearly suffer. Such occasions should be rare. A copy of the letter is available vide link http://sanghihari.blogspot.com/2018/11/farce-vigilance-proceedings-under.html

b.    As there was no light at the end of the tunnel for obtaining defence documents to properly defend myself, a request for the change of officer was written to the disciplinary authority.  The link http://sanghihari.blogspot.com/2018/11/change-of-inquiry-officer-letter-dated.html will give the details.

c.     To the utter surprise communication was received from DGIT(Vig)/CVO through a non-speaking order rejecting the change in officer. The attitude of the disciplinary authority is definite display of bias and openly showing contempt not only to the to rule based Vigilance Proceedings as mentioned in the Para 3.5 of Chapter XI of the Vigilance Manual (1991 Ed) but also the Apex court Judgment (Hon’ble Supreme Court Judgment Travancore Rayon Lt. Vs Union of India 1971 AIR 862).

d.    The DGIT (Vig)/CVO toeing the same line of action of the inquiry officer without a speaking order and rejecting the request of defence documents makes it apparently clear that both the authorities have joined to fix me by conducting a farce vigilance proceeding.

e.    In the letter the DGIT (Vig)/CVO after rejecting my request for defence documents expressed me to cooperate with finishing the vigilance proceeding at the earliest. I was laughing on the attitude of the authority as everyone is more bothered about statistical number of cases for disposal rather than actually bringing out the truth so as to impart equity and justice. It is clearly understood that rather than hearing my side of story, the CVO was contended and happy with the Inquiry Officer who was perpetrator of crime as the denial of the defence document would have brought me out cleanly in the vigilance proceeding.

From the above detailed explanation, I can proudly share that the Commission has become part of a classic and rare case of initiating vigilance proceedings against me which is built on demolishing the basic rule of law as guaranteed by the Indian Constitution. The details are as under:-

                        i.         The case totally vests on the false primary Article Charge-1, which  is relating to under assessment as prepared by DGIT(Vig)/CVO.

                       ii.         The Inquiry Officer and the DGIT(Vig)/CVO by denying the defence documents - CAP-1, CAP-II and Monthly DO has deprived the Charged Officer to prove his innocence that the search assessment was passed indeed passed with the approval of reporting Officer.

                      iii.         The Inquiry Officer and the DGIT(Vig)/CVO by denying the defence documents of CBDT action taken report on the reporting officer has deprived the Charged Officer that the search assessment was passed with the approval of reporting Officer as the reporting officer cannot abdicate its fundamental duty.

                     iv.         It is a classical defect in CBDT and its Vigilance administration on inordinate delays as the innocent outstanding Government Servant, who being an ASSET to the Income-tax Department has all along been treated with indignity and humiliation by every authority whom he had approached seeking equity and justice.

                       v.         The delay of more than a decade caused by the DG Vigilance/CVO has brought irreparable damage to the Charged Officer by depriving him and his family to lead a life of dignity which every authority has taken oath to protect in order to uphold the values of Indian Constitution made by the Parliament of India.

From the above facts presented to you I have reason to believe that there is cartel and syndicate in the form of various authorities involved in my vigilance proceeding in each stage, who has not only sinisterly planned but are executing the whole process of vigilance proceeding by denying the fundamental right - “RIGHT TO DECENT LIFE WITH DIGNITY” to me as enshrined in the Part III of the Indian Constitution.

As this vigilance proceeding has violated every democratic principle established by law where you and the Disciplinary Authority have shown scant respect for law by being arbitrary, erroneous and being highhanded, I have come to a conclusion that I can never expect equity and justice under the existing dispensation. Therefore, I shall not be participating in any proceeding conducted by you or led under the machinery of DGIT (Vig)/CVO, who are interested in hastening the process of concluding a vigilance proceeding with the support of prosecution witnesses with questionable integrity by contravening the rule of law prescribed by the Indian Constitution.

This is for your information and necessary action.

Thanking you.

Yours faithfully,

                                                                                 Sd/-

                                                                    (Sanghi Sri Hari Rao)

CC to:-

1.    The Chief Vigilance Commissioner, New Delhi.

2.    The Director General Income-tax (Vigilance), New Delhi

3.    The Principle Chief Commissioner of Income-tax, Bangalore-I.

4.    The Director General Income-tax (Investigation), Bangalore,

5.    The Addl. CIT (Vigilance), Bangalore

6.    The Presenting Officer, the DCIT Central Circle 2(2) Bangalore.