Dear Mr. Kotak, Please remove the dot after 'html' and 'asp', the link should work then. if it still does not work, pls not go to http://finmin.nic.in and look under Recent Updates on the main page. The Draft Code is mentioned as the third item as on 25th August 2009. Thanks Venkat
_____ From: [email protected] [mailto:[email protected]] On Behalf Of Milind Kotak Sent: Tuesday, August 25, 2009 11:45 AM To: [email protected] Subject: Re: [rti_india] Draft Direct Tax Code 2009 hints at amendment of the Right to Information Act Dear Mr. Venkatesh : The first two links namely http://finmin. <http://finmin.nic.in/DTCode/index.html.> nic.in/DTCode/index.html. and http://finmin. <http://finmin.nic.in/DTCode/query.asp.> nic.in/DTCode/query.asp. are not working. Would appreciate if you can sugest some other way of acesing the abiove links. Regards Milind Kotak On Sat, Aug 22, 2009 at 5:48 PM, Venkatesh Nayak < venkat...@humanrigh <mailto:venkatesh%40humanrightsinitiative.org> tsinitiative.org> wrote: > > > Dear all, > Readers may remember the wide publicity received for the news about the > release of the Draft Direct Taxes Code, 2009 (the Draft Code) by the > Finance > Ministry on 12th August 2009. This Draft Code seeks to replace the Income > Tax Act of 1961. The Draft Code along with a discussion paper that explains > its new proposals have been uploaded on the website of the Ministry. The > UPA > Government has commendably sought to consult with people regards the draft > proposals before introducing the Draft Code in Parliament during its winter > session (November 2009). Readers may access the Draft Code and the > discussion paper at: http://finmin. <http://finmin.nic.in/DTCode/index.html.> nic.in/DTCode/index.html. You may send > your comments electronically to the Ministry by accessing: > http://finmin. <http://finmin.nic.in/DTCode/query.asp.> nic.in/DTCode/query.asp. > > Many of us salaried employees in the public, private and social sector have > cheered the Draft Code's proposals that seek to widen the income slabs for > the purpose of calculating taxes. The limit on savings that will attract > tax > deductions is also sought to be raised much to everyone's glee. Ok, now > that > the champagne bottles have run dry, it is time to check whether or not the > Draft Code is compliant with the provisions of the Right to Information Act > (RTI Act). > > The discussion paper attached to the Draft Code states as follows: > > "K) Disclosure of information relating to assessee > 19.19 The tax administration receives a large volume of information > relating > to an assessee furnished by him and by third party sources. These > information, essentially, relate to his financial and commercial > transactions. It is part of his right to privacy. However, the Right to > Information Act enables a person to obtain commercially sensitive and > private information relating to any other person which may have the effect > of causing financial, commercial or personal injury to such other person. > The disclosure of such information to third parties/ competitors also > inhibits full compliance with tax laws. > > 19.20 Internationally, countries prohibit the disclosure of information > furnished to, or obtained by, the tax administration, regardless of the law > relating to the right to information. However, the information is allowed > to > be shared with other enforcement agencies to the extent it is necessary in > public interest. > > 19.21 Steps will, therefore, be taken to amend the Right to Information Act > prohibiting disclosure of information relating to any assessee to any third > party except in the circumstances provided under the Code." (pages A 59-60) > > Comment on the paras relating to disclosure > > RTI Act protects confidentiality of assessee-related information: > The assertion that the RTI Act enables any person to obtain commercially > sensitive or private information relating to any other person shows an > awkward ignorance of section 8(1)(d) which guarantees protection for > commercial and trade secrets of third parties (an assessee would be a third > party to a request received by the IT Dept.). These paras display a similar > ignorance of the protection provided to information whose disclosure may > invade the privacy of an individual under section 8(1(j). To the best of my > knowledge the Central Information Commission (CIC) has not ordered till > date > the disclosure of IT returns filed by any individual or company. However a > single member bench of the CIC has ordered disclosure of the IT returns > (minus PAN number) of political parties in April 2008 . Even though there > is > a public interest override in section 8(2) to the best of my knowledge it > has never been used to order disclosure of IT returns of individuals or > corporate companies. (Readers may please correct me if I am wrong.) Give > these arguments it is difficult to understand why the Ministry of Finance > seeks to amend the RTI Act. The RTI Act provides adequate protection for > information about individual and corporate assessees. > > Non-disclosure of information is not so universal a phenomenon: > While to a large extent it is true that information about IT assessees is > not ordinarily disclosed publicly in a large number of countries, this is > not as universal a practice as the discussion paper makes it out to be. For > example, in Norway the IT law was changed in 2002 to allow public > disclosure > of tax-related information about assessees. In 2005 these records were put > online on the website of the tax assessing authorities. Expectedly many > assessees (mostly celebrities and high income earners) objected to such > public disclosure. The practice now is to disclose assessee-related > information publicly on websites for a period of 3 weeks in October every > year. There is protection against misuse of the information, but the media > can report on who is earning how much and paying how much tax, by studying > these tax lists. After this period of proactive disclosure, any person can > make an application and obtain information about any assesee from the tax > authorities. For more information please click on: > http://www.the- <http://www.the-link.lu/news/Public%20Tax%20Records-1384.html.> link.lu/news/Public%20Tax%20Records-1384.html. I believe > countries like Finland, Sweden and Norway also allow public disclosure, but > this needs to be verified. We will get back to you when we have more > details. > > In 2008 the outgoing Romano Prodi Government approved a proposal to make > public tax-related information about all tax-payers in Italy. The actual > publication on the government website happened under the Silvio Berlusconi > Government and the concerned Minister approved the move. However the > records > were removed after a major uproar from celebrities and companies. There is > talk of a tax law from 1973 which requires tax authorities in Italy to > display hard copies of assessee-related information on notice boards in > towns councils and municipalities. As the text of the law is not available > easily on the Internet we are unable to provide more information. For more > information about the Italian RTI adventure click on: > http://news. <http://news.bbc.co.uk/2/hi/europe/7376608.stm> bbc.co.uk/2/hi/europe/7376608.stm This research will continue. > > > What does the Indian Income Tax Act, 1961 say about the disclosure of > information about assessees?: > Until 1964 there was no provision in the Income Tax Act (IT Act) for > disclosing information about an assessee. The IT Act was amended to allow > disclosure of information to other officials for the purpose of enforcement > of this Act and other laws relating to taxes and financial transactions. In > addition to this a cryptic clause was introduced to empower the Chief > Commissioner in public interest to entertain an application for disclosure > and make a decision to disclose in public interest. This has ordinarily > been > interpreted to mean disclosure to courts during litigation. However courts > have maintained that they have the power to summon such records even in the > absence of disclosure provisions in the specific law. Administration of > justice is an important public interest that must be protected. The text of > the provision is given below (to access the compleet text of the IT Act > click on: > http://law.incometa <http://law.incometaxindia.gov.in/TaxmannDit/DisplayPage/dpage1.aspx> xindia.gov.in/TaxmannDit/DisplayPage/dpage1.aspx): > > "[Disclosure of information respecting assessees. > > 138.[(1)(a) The Board or any other income-tax authority specified by it by > a > general or special order in this behalf may furnish or cause to be > furnished > to > > (i) any officer, authority or body performing any functions under any law > relating to the imposition of any tax, duty or cess, or to deal- ings in > foreign exchange as defined in section 2(d) of the Foreign Exchange > Regulation Act, 1947 (7 of 1947) ; or > > (ii) such officer, authority or body performing functions under any other > law as the Central Government may, if in its opinion it is necessary so to > do in the public interest, specify by notification in the Official Gazette > in this behalf, > > any such information [received or obtained by any income-tax authority in > the performance of his functions under this Act], as may, in the opinion of > the Board or other income-tax authority, be necessary for the purpose of > enabling the officer, authority or body to perform his or its functions > under that law. > > (b) Where a person makes an application to the [Chief Commissioner or > Commissioner] in the prescribed form for any information relating to any > assessee [received or obtained by any income-tax authority in the > performance of his functions under this Act], the [Chief Commissioner or > Commissioner] may, if he is satisfied that it is in the public interest so > to do, furnish or cause to be furnished the information asked for [***] and > his decision in this behalf shall be final and shall not be called in > question in any court of law.] > > (2) Notwithstanding anything contained in sub-section (1) or any other law > for the time being in force, the Central Government may, having regard to > the practices and usages customary or any other relevant factors, by order > notified in the Official Gazette, direct that no information or document > shall be furnished or produced by a public servant in respect of such > matters relating to such class of assessees or except to such authorities > as > may be specified in the order.]" [emphasis added] > > What does the Draft Code say about the disclosure of information about > assessees?: > > The Draft Code introduces an element of ambiguity even though it is closely > modelled on the provisions of the IT Act. The wording about disclosure to > tax officials in order to conduct their legitimate work is better than the > IT Act. However the provision regards disclosure in public interest > actually > implies that any information about any assessee may be disclosed to any > person in the public interest by the Chief Commissioner. The replacement of > the term 'a person' mentioned in the IT Act with the term 'any person' in > the Draft Code compels this interpretation (see underlined portions above > and below). There is no separate definition of the term 'erson' in this > chapter of the Draft Code. The general definition of the term 'person' > given > on page B-178 will be applicable. So it is not clear whether the discussion > paper has it wrong or the Draft Code has not understood the intention of > the > paper. The relevant provisions of the Draft Code are give below: > > " 146(1) No information in respect of any assessee shall be provided to any > person by,- (a) the Board; > > (b) any officer, authority or executive and ministerial staff, in the > secretariat, attached office or sub-ordinate office of the Board; or > > (c) any person, agency or authority engaged in any manner in the > administration of this Code. > > (2) However, the Board, or any person specified by it by an order in this > behalf, may furnish, or cause to be furnished, any information in respect > of > an assessee to any other person performing any functions under- > > (a) any law relating to the imposition of any tax, duty or cess, or to > dealings in foreign currency; or > > (b) any other law as the central Government may, if in its opinion it is > necessary so to do in the public interest, specify by notification in the > Official Gazette in this behalf. > > (3) The information referred to in sub-section (2) shall be only such > information which fulfills the following conditions- > > (a) the information is received or obtained by the Board, or any person > specified by it by an order under that sub-section, in the performance of > its or his functions under this Code; and > > (b) the information is, in the opinion of the person furnishing the > information, necessary for the purpose of enabling the other person > receiving the information to perform the functions under the laws referred > to in that sub-section. > > (4) The Chief Commissioner or Commissioner may furnish, or cause to be > furnished, to any person any information relating to any assessee received > or obtained by any income-tax authority in the performance of his functions > under this Code, if- > > (a) the person makes an application to the Chief Commissioner or > Commissioner in the prescribed form; and > > (b) the Chief Commissioner or Commissioner is satisfied that it is in the > public interest so to do. > > (5) The decision of the Chief Commissioner or Commissioner under > sub-section > (4) shall be final and shall not be called in question in any court of law. > > (6) The Central Government may, regardless of anything to the contrary > contained in this section, direct by order notified in the Official Gazette > that no information shall be furnished under sub-section (2) or sub-section > (4) in respect of such matters relating to such class of assessees, or to > such authorities, as may be specified in the order." [pages B93-94, > emphasis > added] > > As this is an issue that needs discussion we have not issued an action > alert > yet. Please tell us what you think abuot these isues soonest. The window of > opportunity to make submissions on the Draft Code may close soon. The > Finance Ministry has not issued any deadline for submission to the best of > my knowledge. > > What we urgently need is a mechanism in Parliament and all State > legislatures to vet all new Bills and amendment Bills for compatibility > with > the RTI Act (including Jammu and Kashmir where a similar exercise must be > carried out in relation to the State's RTI Act). While this may be possible > through the mechanism of Standing Committees in Parliament, few State > legislatures have established similar bodies. The only option is to send > such Bills to a select committee which may or may not be a champion of > openness. This is a sorry state of affairs for the world's largest > democracy. > > Oh! by the way, if you are interested in how much Mr Barack Obama and his > wife earned and paid in taxes before he became the President of the USA, > please click on: <http://obama. <http://obama.3cdn.net/b689982572ef6e7ad4_mlbzaoxb2.pdf> 3cdn.net/b689982572ef6e7ad4_mlbzaoxb2.pdf> > http://obama. <http://obama.3cdn.net/b689982572ef6e7ad4_mlbzaoxb2.pdf> 3cdn.net/b689982572ef6e7ad4_mlbzaoxb2.pdf He chose to make > public his tax records as well as those of his wife during the election > campaign in 2008. These documents have remained publicly accessible since > then. > > In order to access our previous email alerts please click on: > <BLOCKED::BLOCKED:: > http://www.humanrig <http://www.humanrightsinitiative.org/programs/ai/rti/indi> htsinitiative.org/programs/ai/rti/indi > a/national.htm> > http://www.humanrig <http://www.humanrightsinitiative.org/programs/ai/rti/india/national.htmYou> htsinitiative.org/programs/ai/rti/india/national.htmYou > will find the links at the top of this web page. If you do not wish to > receive email alerts please send an email to this address indicating your > refusal to receive email alerts. > > Thanks > > Venkatesh Nayak > > Programme Coordinator > Access to Information Programme > Commonwealth Human Rights Initiative > B-117, I Floor, Sarvodaya Enclave > New Delhi- 110 017 > tel: 91-11- 2686 4678/ 2685 0523 > fax: 91-11- 2686 4688 > website: www.humanrightsinitiative.org > alternate email: <mailto:nayak.venkatesh@ <mailto:nayak.venkatesh%40gmail.com> gmail.com<nayak.venkatesh%40gmail.com> > > > nayak.venkatesh@ <mailto:nayak.venkatesh%40gmail.com> gmail.com <nayak.venkatesh%40gmail.com> > > [Non-text portions of this message have been removed] > > > [Non-text portions of this message have been removed] No virus found in this incoming message. Checked by AVG - www.avg.com Version: 8.5.409 / Virus Database: 270.13.65/2324 - Release Date: 08/24/09 12:55:00 [Non-text portions of this message have been removed]
