Crisis of confidence with the DGIT (Vig)/CVO

Date:  19.11.2018

Place:  Bangalore

To,

The Director General of Income Tax (Vigilance),

2^nd Floor, Jawaharlal Nehru Stadium,

New Delhi-110003.

Through proper channel

 Respected Sir,

Sub: Request for change in Inquiry Officer displaying prejudice and bias -Reg.

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

Kindly refer to the above.

This is to inform your good self that the undersigned had requested for the change of Inquiry Officer as the Inquiry Officer has refused the request for supply of the defence documents vide letters dated 24.11.2017, 13.02.2018, 22.02.2018, 05.10.2018 & 13.10.2018. The Inquiry Officer rejected the request of defence documents vide letters dated. 12.02.2018, 25.09.2018, & 12.10.2018 & 16.10.2018.

In my letter I had specifically referred to the issue of rejection of defence documents by the Inquiry Officer was, not on the basis of a speaking order. I had placed reliance on 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.

I had also attached copy of my letter dated 13.10.2018 written to Inquiry Officer for your ready reference. The letter makes it amply clear that the “defence documents must be given to charged officer”, as the Vigilance Manual is mandating that “the question of relevancy has to be looked at from the point of view of the Government servant and the request should not be rejected”, the Apex Court has also decided in many cases that “there must be a speaking order and defence document must not be denied”. My repeated pleading for defence documents what is legally due coupled with the inquiry officer’s action of rejecting crucial defence documents again and again, speaks of contempt for law, display of total arbitrariness, prejudice, bias and total lack of fairness.

As the Inquiry Officer engaged in total violation of the facts, circumstances and the case laws of the Apex Court mentioned in my letter dated 13.10.2018, I had stated that the disciplinary proceedings in my case are being reduced to farce as against to hold the same in accordance of provisions of the CCS (CCA) Rules, Vigilance Manual and the judgement of the Apex Court. I also contended that If the defence document legally acessible to the charged officer are being denied by the inquiry officer, then the question of fairness, transparency and justice is the least the charged officer can expect out of this proceeding led by the inquiry officer. Therefore, I was left with no option but to request to the Disciplinary Authority to change the inquiry officer in my case.

For my this request I places reliance  on notification vide Cabinet Sectt. Department of Personnel, OM No. 39/40/70-Ests.(A) dated 9th November, 1972 which reads as:“It has accordingly been decided that whenever an application is moved by a Government servant against whom disciplinary proceedings are initiated under the CCS (CCA) Rules against the inquiry officer on grounds of bias, the proceedings should be stayed and the application referred, along with the relevant material, to the appropriate reviewing authority for considering the application and passing appropriate orders thereon.” 

However, to my utter dismay, my request of change of Inquiry Officer has been summarily rejected by your good self by observing that Inquiry Officer has communicated the reasons of denial of documents. Your letter also goes on to say that the request of undersigned vide letter dated 21.10.2018 has been considered and not found to be tenable and hence rejected. In fact nothing can be better example of such a cryptic and non speaking order passed by your good self. Ipso Facto, you had neither discussed the reasons of denial nor discussed the Apex Court judgment nor discussed the instruction contained in Vigilance Manual and rejected the request in totally arbitrary manner. Your letter dated 12.11.2018 is a sad commentary on the way the bureaucracy feel as if it is beyond the pale of law or law unto itself. You have shown absolutely no respect for Apex Court judgments regarding principles of natural justice and need to pass speaking order or for that matter for instructions contained in Vigilance Manual of the Government of India.

In this scenario, wherein the Inquiry Officer and Disciplinary Authority has colluded with each other in flagrantly flouting the law of the land and deny the right to defense documents to the charged officer, the undersigned is left with no option but to make one more request for change of Inquiry Officer and in case the Disciplinary Authority maintains status quo, I shall be approaching Central Administrative Tribunal to redress my grievance regarding non supply of defense documents. It is really ironical to observe that when the undersigned made complaint against the Inquiry Officer for passing non speaking order, the Disciplinary Authority also passed a non speaking order and thereby compounded the problem. Accordingly, it may be seen that neither the inquiry Officer nor you are ready to follow the principles of natural justice nor interested in following mandatory instructions contained in the Vigilance Manual. Denial of sufficient opportunity to defend myself is my right under the principles of natural justice and in no case the same can be denied to me. Thus, this is the last and final opportunity being given to you for allowing me to change in Inquiry Officer on the ground of bias, in accordance with the DOPT instructions quoted hereinabove, failing which I shall be constrained to approach the Bengaluru bench of CAT.

I had clearly brought to your notice how the vigilance proceedings were falsely created against me despite being an OUTSTANDING OFFICER and made to suffer for more than a decade. Let me also reveal the truth of the vigilance case that the primary charge is of under assessment where it is alleged that I did assessment in the hands of three partnerships which was hitherto done under a single individual. The entire proceeding is false and fabricated by the prosecution witnesses as the assessment was done in the hands of five partnerships which were hitherto done under a single individual which lead to revenue gain than underassessment. The prosecution witnesses purposely left the two partnerships as totalling of three would naturally appear to be in loss as totalling of five partnerships was actually resulting in revenue gain. This truth in the vigilance proceedings will be of devastating consequences as it will reveal that false case can be triggered against an honest outstanding officer where the administration can be a mute spectator from top to bottom and there is no protection to honest officers but the rogue officers levelling false cases can go scot free.

I also brought how the vigilance was falsely fabricated by prosecution witness. I demand from your good self that creation of false case should be viewed seriously as it has destroyed an unblemished career of an OUTSTANDING OFFICER from a reserved community. I seek the answer from your end that why you are being totally silent and have not taken any initiative to find truth. I had brought clearly brought  this matter before you vide link http://sanghihari.blogspot.com/search?updated-max=2016-08  05T21:03:00%2B05:30&max-results=7 that creation of false vigilance proceedings had open discrimination on the basis of caste prejudice by the prosecution witness as the same syndicate attempted to spoil my ACR just before creating a false vigilance case. This matter has been clearly sidelined and no inquiry has ever been conducted even in the vigilance proceedings till date, though it is a mandate that no innocent must be harmed through creation of false vigilance proceedings. The matter of protecting the innocent gains more importance when one belongs to reserved community. I demand that the vigilance proceedings should also probe whether there was a false and fabricated charge against the charged officer. When it is found to be true then all the officers’ part of this conspiracy should be dealt with iron hand through an independent inquiry for taking suitable action against the rogue officers.

In the letter you have requested me to cooperate in Inquiry proceedings for early disposal. Let me share that cooperation is not one way traffic but a two-way process. Your good self will appreciate this fact only if you have personally undergone the whole cycle experience in my flesh and bones. Hence, I find no cooperation from the side of department to provide me crucial defence documents to properly defend myself as guaranteed in Article 14 of Indian Constitution. Now, I find that the entire proceeding is eyewash for early disposal for statistical purpose as every cannon of the principle of natural justice has been flouted. I neither have faith in the Inquiry Officer nor in the Disciplinary Authority as both have colluded and absolutely have no respect for Apex Court judgments regarding principles of natural justice and need to pass speaking order or for that matter for instructions contained in Vigilance Manual of the Government of India.

If the proceedings are still continued without giving me the defence documents then I will presume that both the Inquiry Officer and the Disciplinary Authority are being unfair and unjust in conducting this proceeding and have deliberately planned to fix me than bringing the truth to the forefront which is the core objective of the vigilance proceedings.

Thanking you.

Yours faithfully,

                                                                               Sd/-

                                                                    (Sanghi Sri Hari Rao)

CC to:-

1.    The Chief Vigilance Commissioner, New Delhi

2.    The Chairman, National Commission for Scheduled Caste, New Delhi.

3.    The Under Secretary to the Govt. Of India (V&L), New Delhi

4.    The Addl. CIT (Vigilance), Bangalore

5.    The Inquiry Officer, CIT (A)-3, Bangalore

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

Farce Vigilance Proceedings under the Inquiry Officer

Date:  13.10.2018

Place:  Bangalore

To,

The Inquiry Officer,

CIT (A)-3,

Bengaluru.

 Respected Sir,

Sub: The display of prejudice and bias by the Inquiry Officer -Reg.

Ref: Your letter dated 12.02.2018, 25.09.2018, & 12.10.2018

Ref: My letter dated 24.11.2017, 13.02.2018, 22.02.2018 & 05.10.2018

Kindly refer to the above.

This is to inform your good self that the undersigned has perused your rejection of defence documents vide letters dated 12.02.2018, 25.09.2018, & 12.10.2018, respectively.

In this regard, I would like to state that your order of rejection of defence documents was not a speaking order. I may also submit that vide letter dated 22.02.2018 the undersigned had placed reliance on 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.

It is really unfortunate to note that in your letter dated 25.09.2018 & 12.10.2018, you have neither referred to nor discussed this mandatory provision of Government of India’s instructions contained in Vigilance Manual and hence your order dated 25.09.2018 &12.10.2018 is non-speaking order and therefore does not conform to the principle of natural justice. In this regards reliance is placed on the Hon’ble Supreme Court Judgement Travancore Rayon Lt. Vs Union of India 1971 AIR 862 (Copy enclosed for your ready reference. The relevant Para’s of the said judgement are quoted as under

Para -1: The order made by Central Government is subject to appeal to this court under Article 136 of the Constitution. It would be impossible to this Court, exercising jurisdiction under Article 136, to decide the dispute without a speaking order of the authority, setting out the nature of dispute the arguments in support thereof raised by the aggrieved party and reasonably disclosing that the received the due consideration by the authority competent to decide the dispute. Exercise of the right to appeal to this Court would be futile, if the authority does not disclose the reasons in support of the decisions reached by it. A party who at broaches the Government in exercise of a statutory right for Adjudication of a dispute is entitled to know...what was considered by him, and the reasons for recording a decision against him. To enable the High Court or this Court to exercise its constitutional powers, not only the decisions, but an adequate disclosure of materials justifying an inference that there has been a judicial consideration of the dispute, by an authority competent in that behalf in the light of the claim made by the aggrieved party, is necessary. If the Officer acting on behalf of the Government chooses to give no reasons, the right to appeal will be devoid of substance.   

Para – 2: When judicial power is exercised by an authority normally performing executive or administrative function, this Court would require to be satisfied that the decision has been reached after due consideration of the merits and dispute, uninfluenced by extraneous considerations of policy and expediency. The Court insists upon the disclosure of the reasons in support of the order on two grounds: one, that the party aggrieved in a proceeding before High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous: the other that the obligation to record reasons operate as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. The appeal is allowed and order passed by the Central Government is set aside.

From the judgement of the Supreme Court (Supra) it is abundantly clear that no reasons have been assigned in your letter dated 25.09.2018 in which you have relied on your rejection of documents in letter dated 12.02.2018.

Ipso Facto your conclusion stating that “since the above aspects do not have any bearing on the present disciplinary proceedings in your case, so your request for providing documents relating to Monthly DO, Cap-I and Cap-II is not accepted.” Curiously enough, contrary to the Ratio Decidendi of the above mentioned Apex Court judgement you have not elaborated upon any reason whatsoever before reaching your conclusion that these documents are unrelated and have no bearing. Thus, your rejection of defence documents is arbitrary, without any reason and totally in violation of Supreme Court Judgement. Moreover, your stoic silence over instruction contained in Vigilance Manual (as mentioned above) clearly shows contempt for the rule based disciplinary proceedings. Consequently the bias and the prejudice is the charged officer is writ large on both the letters dated 12.02.2018 & 25.09.2018.

As far the issue of the relevance of the defence document is concerned Vigilance manual has clearly laid down that “it should be perceived from the view of charged officer and his defence.” For this proposition I am placing reliance on the Hon’ble Supreme Court Judgement in the case of M V Bijlani Vs Union of India Case no. Appeal 8267of 2004 (Copy enclosed for your ready reference) and the relevant Para is reproduced as under:

Para – Inquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there have been preponderance of probability to prove charges on the basis of materials on record. While doing so, he cannot take consideration of irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof.

From the perusal of the above mentioned judgement it is apparent that the Highest Court of the Land has observed that “He (inquiry officer) cannot refuse to consider the relevant facts. He cannot shift the burden of proof.” Thus it is apparent that even the Apex Court judgement and its Ratio Decidendi is being violated in your order through which you have rejected the request of defence documents. I am also quoting the relevant portion of the Vigilance Manual again for your ready reference, which reads as under:-

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.

Perusal of the Article of Charges in the case of undersigned clearly shows that it has been alleged in these charges that the undersigned has not sought the approval of the Additional Commissioner of Income-tax, while passing the scrutiny assessment orders in search assessments. It defies logic as to how Monthly DO, CAP-I and CAP-II which were submitted by the undersigned to his Additional Commissioner of Income-tax were not relevant.

The inquiry officer vide letter dated 12.02.2018 & 25.09.2018 rejected the charged officer request without a speaking order by drawing a conclusion that “A perusal of the above letters shows that the basic purpose of seeking such documents is to prove that the action needs to be taken against some other officers also, who failed to discharge their duty of monitoring and guiding the AO. Another stated purpose for seeking these documents is to show that Addl.CIT was aware of your work and had total knowledge of what you were doing on regular basis. Since the above aspects do not have any direct bearing on the present disciplinary proceedings in your case, so your request of providing this document is not accepted.” The inquiry officer is fully aware that the vigilance proceedings has been initiated against the undersigned vide CVC OM No. 015/ITX/011/301272 Dated 03.12.2015 and DGIT(V)SZ/COM/18/08 dated 05/08/2015.

The inquiry officer is totally aware that in the same letter vide CVC OM No. 015/ITX/011/301272 Dated 03.12.2015 and DGIT(V)SZ/COM/18/08 dated 05/08/2015 in unequivocal term has charged the role of Additional Commissioner where the vide Para 2(iii) as “The role of Additional Commissioner/Joint Commissioner, the immediate administrative superior of Sh. S S Hari Rao, then DCIT Central Circle II also needs to be examined from the point of view of failure to ensure proper assessments in these search cases. As mentioned above there are instructions of the CBDT in this regards and part of the instructions whether or not there are instructions, it is the fundamental duty of an Additional Commissioner in the Central Range to monitor and supervise the assessment made by the assessing officer working under him. Prima facie the Addl. CIT failed in performing such duty of monitoring and guiding the AO, resulting in these poor assessments. Further the refunds incorrectly issued on account of determination of lower income in the assessments u/s 153A/153C compared to original to assessments also must have been approved by the Addl. CIT/CIT concerned. CBDT may identify the person concerned for his explanation and take the matter to a logical conclusion.”

The inquiry officer is also fully aware that the institutional mechanism in Income-tax Department has the monthly statutory reporting system between various levels of authority only through CAP-I, CAP-II & Monthly DO for work and disposal. The inquiry officer turning a blind eye to the above fact, also not taking any initiative to the observation of CVC on one hand and then denying the charged officer the defence documents in support of the full knowledge of the Additional CIT of the assessment proceedings on the other, raises serious concern to the fairness, transparency and impartiality of the inquiry proceedings.

Similarly the evidence showing the circulation of the guidelines of the CBDT to the Additional CIT and to the undersigned, which is the lynchpin of all the charges is stated to be “not traceable and hence cannot be supplied.” It is reprehensible to note as to how in the absence of the evidence of the circulation of the CBDT guidelines the Charge of not following the same can be substantiated by the prosecution. It is also not comprehensible to the undersigned when all the charges allege violation of Rule 3(1)(i) of CCS Conduct Rules 1964 relating to lack of integrity, then how come the column of integrity in the APAR is not relevant for the defense of the undersigned in his disciplinary proceedings.

During the year 2006-07, the charged officer was neither issued a memorandum for any of the issues raised in the Articles of Charge nor any memorandum for any misdemeanour, misconduct or lack of integrity issue in his entire career from the date of joining the service; instead the charged officer was always rated as OUTSTANDING in the APAR till 2005-06, clearly shows that there was no mens rea while disposing work in his official capacity. The inquiry officer act of denial for any copies of memorandum issued by the Additional CIT, Central Circle-Range -2, Bangalore for the year 2006-07 has led to the act of suppression of fact that neither memorandum for any misdemeanour, misconduct or lack of integrity issue by charged officer existed during the year for which articles of charge were framed nor for any act in the earlier years. The reality would remain that the charged officer’s “INTEGRITY WAS BEYOND DOUBT” meaning impeccable character and integrity all along his work in Indian Revenue Service.

Last but not the least, your letter dated 12.02.2018 also refers to the factum of remedial action taken in various cases will not have any bearing is also totally farfetched, in as much as, the various articles of charges allege that assessment orders passed by the undersigned were erroneous as well as prejudicial to the interest of revenue even on those cases where no action were undertaken by the CIT under Section 263. In fact the main plank of the defence of the undersigned also refers to the issue of no action under Section 263 by the CIT will naturally tantamount to any jurisprudence that there cannot be any case of erroneous assessment order on the part of the undersigned.

From the above facts it becomes clear that “the CONSTITUTIONAL LAW is screaming that “defence documents must be given to charged officer”, the Vigilance Manual is screaming that “the question of relevancy has to be looked at from the point of view of the Government servant and the request should not be rejected”, the Apex Court is screaming that “there must be a speaking order and defence document must not be denied”, the charged officer is repeatedly pleading for defence what is legally due but the inquiry officer action of rejecting crucial defence documents again and again speaks of contempt for law, display of total arbitrariness, prejudice, bias and total lack of fairness.

As your honour has chosen to ignore all my requests including the one made on 05.10.2018 and has categorised disciplinary proceedings in my case as one of the rare case in which the request of defence document is rejected, it is all the more transparently evident that you have decided against all the cannons of law and hence displayed prejudice and bias against the undersigned.

In view of the facts, circumstances and the case laws of the Apex Court mentioned herein above, I have reason to believe that the disciplinary proceedings in my case are being reduced to farce as against to hold the same in accordance of provisions of the CCS (CCA) Rules, Vigilance Manual and the judgement of the Apex Court. If the defence document legally available to the charged officer is difficult in accessing from the inquiry officer, then the question of fairness, transparency and justice is the least the charged officer can expect out of this proceeding led by the inquiry officer. Therefore, I have been left with no option but to request to the Disciplinary Authority to change the inquiry officer in my case, if your good self still maintain that all the defence documents requisitioned by the undersigned should be denied as happened earlier.

Accordingly this is the last and final request to supply all the defence documents and in case these are again rejected then I shall be approaching the Disciplinary Authority for the change of inquiry officer for displaying prejudice and bias, vindicating no hope of fairness, transparency and justice in my vigilance proceeding.

Thanking you.

Yours faithfully,

                                                                                  Sd/-

                                                                    (Sanghi Sri Hari Rao)

CC to:-

1.    The Under Secretary to the Govt. Of India (V&L)

2.    The Addl. CIT (Vigilance), Bangalore

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

Denial of articles of Charge vide letter Dated 11.04.2016 on False Vigilance case

Date: 11.04.2016

Place:  Bangalore

To

The Hon’ble President of India

New Delhi

Respected Sir,

                        Sub: Reply to Memorandum F.No. C-14011/5/2016-V&L Dtd. 04.03.2016

                        Ref-1 : CVC OM No. 015/ITX/011/301272 Dated 03.12.2015

                        Ref-2 : C.No 34/VIG/2015-16/Pr. CC Dated 14.03.2016

I received a sealed cover vide C.No 34/VIG/2015-16/Pr. CC Dated 14.03.2016 on 16.03.2016 at my residential premise in my absence. The same sealed cover came into my hand on 19.03.2016. After opening the sealed cover I went through the Memorandum F.No. C-1v 4011/5/2016-V&L Dtd. 04.03.2016 which was based on CVC OM No. 015/ITX/011/301272 Dated 03.12.2015. I also found that the CVC OM No. 015/ITX/011/301272 Dated 03.12.2015 was based on the report of DGIT(V)SZ/COM/18/08 dated 05/08/2015.

2.            I was directed to give a reply within 10 days from the receipt of memorandum a written statement in my defence and was also asked to state whether I desire to be heard in person. I have already filed a letter on 21.03.2016 to your good self by requesting to enhance 10 days to 30 working days, keeping in light the principle of natural justice so that I get sufficient time to defend myself. As the written statement requires going through exhaustive material it will be impossible to furnish a written statement in response to Memorandum F.No. C-14011/5/2016-V&L Dtd. 04.03.2016.

                                                

3.            I deny specifically each article of charge i.e. all the eight Articles of charge levelled against me. The summary of the written statement for the denial of Article of Charges as under:

Article – I	Committed irregularities in passing assessment orders in the case of Shri H R Ravichandra Reddy for assessment years 2000-01 to 2003-04 by assessing the income(s) for these assessment years in the search assessments made after search below the income returned/assessed originally before the search resulting in issue of refunds in respect of taxes paid on income returned/regular assessment
BASIS OF DENIAL OF ARTICLE OF CHARGE-I The search assessment under section 153A r.w.s 143(3) 153 of the Income-tax Act, 1961 for the assessment years 2000-01 to 2003-04 were passed 30.08.2006 and the assessed income was equal to the income reflected return of income filed in response to notice issued under section 153A Income-tax Act, 1961. It is correct to say that assessed income under section 153A r.w.s 143(3) 153 of the Income-tax Act, 1961 was less than to the extent of Rs. 67,75,690/- vis-à-vis returned income under section under section 139 (1) of the Income-tax Act, 1961 (Original Return), However, if the income of five partnership firms alongwith Income declared by Shri H R Ravichandra Reddy, are taken to into account, then it shows a corresponding increase of income to the tune of Rs. 77,66,198/- between the quantum of income as per the original return and income reflected in return of income filed in response to notice under section 153A of the Income-tax Act, 1961. It was alleged in the Articles of Charge-1 that there is a prima facie loss of Rs. 18,69,320/-. Whereas, the search assessments on this issue by the charged officer brought additional revenue of Rs. 31,47,213/- to the excehquer in the form of enhanced Income-tax and Interest under Section 234 B & C. Thus, it may be seen that the allegation mentioned in the Article of Charge-I is not only baseless but contrary to facts on record. It can also be verified from records that no order under section 263 of the Income-tax Act, 1961 is passed by the CIT in respect of this issue, which clearly proves that neither the order passed by C.O. was erroneous nor it was prejudicial to the interest of revenue.
Article – II	Committed irregularities by not adhereing to the Instructions of the CBDT and other established administrative practices in the Central Charges of the Income-tax Department on the subject of completing search assessments in the group cases of Shri G Prasada Reddy, Shri S Ramana Prasad Reddy, Shri H R Ravichandra Reddy and others for the assessment years 2000-01 to 2006-07 by completing the assessments without obtaining administrative approval of the Range Head.
BASIS OF DENIAL OF ARTICLE OF CHARGE-II The Article of Charge-II is also false and baseless as no search assessment in Central Range-2 was subjected to the administrative approval. This fact can also be verified from the search assessments passed by all the assessing officers in Central Range-2, Bangalore. Thus, it may be seen that the allegation mentioned in the Article of Charge-III is not only baseless but contrary to facts on record. The Article of Charge-II is also vague and ambiguous in as much as it mentions that the charged officer has committed irregularities by not adhereing to instructions of CBDT and the other established administrative practice. Only one CBDT instruction dated 22.12.2006 is relied upon and the charged officer has completed assessment as on 02.01.2007, this instruction was never brought to the notice of charged officer. It is pertinent to mention that the said instruction was issued on 22.12.2006 and date of assessment is 02.01.2007 i.e almost ten days and no evidence has been brought to record to show that this instruction was brought to the notice of charged before 02.01.2007. As far as the issue of “established administrative practices” is concerned, the moot question remains  “as to whether violation of a practice can tantamount to a misconduct” under CCS(CCA) Rules. Besidews, provisions of section 153A have been on statue w.e.f.1.06.2003, therefore, instruction no. 1886 dated 18.07.1991 is not related to this section, as it relates to penalty proceedings and not related to ssessment proceedings under section 153A. Last but not least, as on 2.01.2007, provision of section 153D i.e. prior approval of Joint CIT was not on statue, as the same was introduced by Finance Act’2007 w.e.f. 1.06.2007.
Article – III	Committed irregularities  by not adhereing to the Instructions of the CBDT on the subject of  completing search assessments in the case of Shri G Prasada Reddy  for the assessment years 2003-04 to 2006-07 by assessing undisclosed income less than the income disclosed by the DDIT (Inv.) in the appraisal report and in the case of H R Ravichandra Reddy for the assessment years 2000-01 to 2006-07 by assessing the undisclosed income less than the one quantified by the DDIT (Inv) in the Appraisal Report and the one declared by the assessee.
BASIS OF DENIAL OF ARTICLE OF CHARGE-III The Article of Charge-III is vague and ambiguous in as much as it mentions that the charged officer has committed irregularities by not adhereing to instructions of CBDT. Only one CBDT instruction dated 22.12.2006 is relied upon and the charged officer has completed assessment as on 02.01.2007, this instruction was never brought to the notice of charged officer. It is pertinent to mention that the said instruction was issued by CBDT on 22.12.2006 and date of assessment is 02.01.2007 i.e almost ten days later and no evidence has been brought to record to show that this instruction was brought to the notice of charged before 02.01.2007. Law cannot expect an authority to follow certain instructions, without being brought to the notice of the C.O. Thus, it may be seen that the allegation mentioned in the Article of Charge-III is not only baseless but contrary to facts on record. It can also be verified from records that no order under section 263 of the Income-tax Act, 1961 is passed by the CIT in respect of this issue, which clearly proves that neither the order passed by C.O. was erroneous nor it was prejudicial to the interest of revenue.
Article – IV	Committed irregularities ignosirng specific suggestions and other points raised in the Appraisal Report in the cash G Prasada Reddy by not verifying the foreign currencies and not examining the transactions with E K Land Developers regarding purchase of lands at Nageshwara Village  and in the case of H R Ravichandra by allowing the calim to set off of Rs. 187 Lakhs disclosed during the survey as wrong claim of expenditure
BASIS OF DENIAL OF ARTICLE OF CHARGE-IV The Article of Charge IV is vague and ambiguous. Both the issues relating to foreign currency and transaction of  E. K. Land Developers have been dealt in the assessment order of Shri G Prasada Reddy. Further the appraisal report does not mention the factum of finding of foreign currency, i.e. amount thereof and no suggestion has been made by the DDIT to verify this issue in the appraisal report. It can also be verified from records that no order under section 263 of the Income-tax Act, 1961 is passed by the CIT in respect of this issue, which clearly proves that neither the order passed by C.O. was erroneous nor it was prejudicial to the interest of revenue.
Article – V	Committed irregularities by not scrutinizing the cases of i) G Prasada Reddy, ii) M/s Royal Placid, iii) H R Ravichandra, iv) M/s R S Developers and v) M/s P R Developers as he has failed to verify various claims made by the assessee
BASIS OF DENIAL OF ARTICLE OF CHARGE-V The Article of Charge V is vague and ambiguous in as much as it says that the charged officer has not scrutinized the cases of i) G Prasada Reddy, ii) M/s Royal Placid, iii) H R Ravichandra, iv) M/s R S Developers and v) M/s P R Developers. The CIT has passed order under section 263 of the Income-tax Act, 1961 in respect of three cases and the assessment order r.w.s 143(3) is before honourable ITAT Bangalore for adjudication. In the absence of finality regarding the addition made in the assessment order, the allegation of misconduct on the part of charged officer is premature. Last but not the least an error of judgment cannot be treated as misconduct, as has been decided by the Hon’ble Supreme Court in the case of  Union of India and Ors. v. J.Ahmed, AIR 1979 SC 1022 “There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.” In the instant case it may be seen that damage is not irreparable as CIT has invoked the provisions of section 263 and at the most error of judgement can be attributable to C.O. at this stage of appellate proceedings. Beside, as per Apex Court judgement cited above an error of judgement will not tantamount to misconduct, expecially when it is repairable.
Article – VI	Committed irregularities in passing the assessment orders resulting in loss of revenue in the cases of i) H R Ravichandra for the assessment year 2005-06, ii) M/s Royal Shelters for the assessment year 2001-02
BASIS OF DENIAL OF ARTICLE OF CHARGE-VI The Article of Charge VI is vague and ambiguous in as much as it says that the charged officer has committed irregularities in passing the assessment orders resulting in loss of revenue in  the cases of i) H R Ravichandra for the assessment year 2005-06, ii) M/s Royal Shelters for the assessment year 2001-02. It can also be verified from records that no order under section 263 of the Income-tax Act, 1961 is passed by the CIT in respect of this issue, which clearly proves that neither the order passed by C.O. was erroneous nor it was prejudicial to the interest of revenue.
Article – VII	Committed irregularities by completing the assessments in a hasty manner in the group cases of i) Shri G Prasada Reddy Group, ii) H R Ravichandra Group, and iii), Shri S Ramana Prasad Group  without proper verification of various issues when sufficient time was available
BASIS OF DENIAL OF ARTICLE OF CHARGE-VII The Article of Charge VII is vague and ambiguous in as much as it says that the charged officer has committed irregularities by completing the assessments in a hasty manner in the group cases of i) Shri G Prasada Reddy Group, ii) H R Ravichandra Group, and iii), Shri S Ramana Prasad Group without proper verification of various issues when sufficient time was available. The Provision of section 153 of the Income-tax Act, 1961 prescribes the last date of passing of assessment order and does not mention that no order can be passed before the last date. It can also be verified from records that no order under section 263 of the Income-tax Act, 1961 is passed by the CIT in respect of this issue, which clearly proves that neither the order passed by C.O. was erroneous nor it was prejudicial to the interest of revenue.
Article – VIII	Committed irregularities  by dropping the penalty proceedings initiated u/s 271(1)(c) of the Income-tax Act, 1961, in contravention of the provisions of the Income-tax Act, 1961, in the case of i0 G Prasada Reddy, ii) P R Developers, iii), M/s Royal Placid, iv) Smt. K M Lakshmi, v) H R Ravichandra, vi) R S Developers, vii) M/s Royal Heights, viii) S Ramana Prasad Reddy, ix) Anupama Reddy and x) Rasi Developers even though the income disclosed in the returns of Income filed originally was less than the income admitted after search operations and in some cases, the income assessed was more than the income admitted in the returns filed after the search
BASIS OF DENIAL OF ARTICLE OF CHARGE-II As per the Provision of section 274 of the Income-tax Act, 1961, the assessing officer is vested with the discretion to drop the penalty proceedings initiated by the assessing officer in the light of explanation submitted by the assessee under section 273B of the Income-tax Act, 1961 . In the instant case the charged officer has dropped the pernalty proceedings while exercising his discretion conferred upon him by the Statute. It can also be verified from records that no order under section 263 of the Income-tax Act, 1961 is passed by the CIT in respect of this issue, which clearly proves that neither the order passed by C.O. was erroneous nor it was prejudicial to the interest of revenue.

4.            Moreover, at the very outset, after denying all the articles of charge levelled against the undersigned, I would like to categorically mention that the memorandum served on me on 16.03.2.16, relates to happenings of January, 2007 i.e. there is inordinate and unexplained delay in issuing charge memo after more than 9 years, and in the light of judicial pronouncement, as mentioned hereinbelow,

In P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board, JT 2005 (7) SC 417, a charge memo was issued to the appellant on 8th January, 2000 for the irregularity in issuing a sale deed in the year 1990. There was no explanation for the unordinary delay of 10 years in initiating the proceedings. The respondent explained that the irregularities for which disciplinary action had been initiated had came to light only in the second half of 1994-95, when the audit report was released. The Hon’ble Supreme court did not accept the contentions of the respondent that the period from date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board WPC-4757 of 2007 Page 11 of 12 cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings. The Hon’ble Supreme court felt that allowing the respondent to proceed further with the enquiry would be very prejudicial to the petitioner and would cause unbearable mental agony and distress to the offcer concerned. During the course of judgment the Hon’ble Supreme court observed as under:-

“The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.”

5.            Therefore, the memorandum issued to the undersigned may please be withdrawn immediately, as there is inordinate and unexplained delay of more than 9 years in the case of undersigned, in accordance with the ratio-decidendi of the Apex Court’s judgement relied upon and quoted above.

6.            The foundation of the Central Vigilance Commission is also based on transparent and fair proceedings where instructions must be available which shall explicitly mean that Vigilance as a tool shall not be used for witch-hunting or victimising a person. But in my case the Vigilance case was orchestered by Shri A K Agarwal, the then CIT Central and Shri D K Kha, the then Addl. CIT Central Range-1 as a tool to victimise and harass me. Does the Commission know that:-

a.                  The officers involved in the vigilance proceedings had threatened the charged officer to remove from the job and then had caste and other prejudices.

b.                  The officers involved in the vigilance proceedings attempted to spoil the ACR of the charged officer for the year 2006-07?

c.                   There is a background to this Vigilance case having a motive to deliberately fix an officer when the ACR of the charged officer could not be spoilt.

d.                  While initiating vigilance proceedings the officers connected were partial, biased and unfair?

e.                  The officers involved in the vigilance proceedings lacked integrity and devotion to duty?

7.            However, in case the memorandum is not withdrawn, then, I request for giving me an opportunity to be heard in person.

Yours faithfully

         Sd/-

(Sanghi Sri Hari Rao)

Joint Commissioner of Incme-tax