Dear Mr. venkatesh : Thanks.
Regards Milind Kotak On Tue, Aug 25, 2009 at 3:02 PM, Venkatesh Nayak < [email protected]> wrote: > > > 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] <rti_india%40yahoogroups.com> [mailto: > [email protected] <rti_india%40yahoogroups.com>] On Behalf > Of Milind Kotak > Sent: Tuesday, August 25, 2009 11:45 AM > To: [email protected] <rti_india%40yahoogroups.com> > 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<venkatesh%2540humanrightsinitiative.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 <nayak.venkatesh%2540gmail.com>> > gmail.com<nayak.venkatesh%40gmail.com> > > > > > nayak.venkatesh@ > > <mailto:nayak.venkatesh%40gmail.com<nayak.venkatesh%2540gmail.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] > > > [Non-text portions of this message have been removed]
