I seek the guidance of all RTI activists.
I had filed an RTI application about the corruption and wrong declaration of
income tax by a business man against whom no action was taken. The Director-
Investigation , Income Tax Deptt. has replied that their department is not
covered under RTI. Can anybody tell me what I should do next.
Regards
J.P.Dabral
On Tue, 29 Sep 2009 15:06:00 +0530 wrote
>
Dear all,
Readers will recollect I had circulated an email alert about the Draft
Direct Taxes Code, 2009 (The Draft Code) hinting at the possibility of
amending the Right to Information Act, 2005 (RTI Act). This Draft Code seeks
to replace the Income Tax Act of 1961 (IT Act). The Draft Code along with a
discussion paper that explains its new proposals has been uploaded on the
website of the Ministry. Readers may access the Draft Code and the
discussion paper at: http://finmin.nic.in/DTCode/index.html The Ministry has
invited comments from people on the provisions of the Draft Code. The last
date for sending submissions is tomorrow- 30th September, 2009. Many
stakeholders may have already posted comments on the provisions of the Draft
Code. We urge you to post a submission on the Ministry's website in order to
ensure that the pre-eminent position of the RTI Act remains unaltered by the
Code.
The Draft Code and the Right to Information Act:
The discussion paper attached to the Draft Code hints at a possible
amendment to the RTI Act. The relevant paras in the discussion paper reads
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)
In our email alert of 22nd August we had posted an analysis of these paras
from the discussion paper and the relevant provisions of the Draft Code. (In
order to access that email alert please click on:
http://www.humanrightsinitiative.org/programs/ai/rti/india/national/2009/pos
sible_amendment_of_rti_act_2005_email_alerts/draft_direct_tax_code_2009_hint
s_at_amendment_of_the_rti_act_aug_22_2009.pdf )
What does the Draft Code say about the disclosure of information about
assessees?:
That the IT Act requires all income tax returns to be kept confidential is a
misconception. Confidentiality was the principle in the initial version of
the IT Act. However the law was amended in 1964 to allow disclosure of any
information about an assessee to any person in the public interest. However
this provision has been rarely used to allow disclosure of IT returns to
third parties other than courts and law enforcement officers. This principle
of disclosure in public interest is mentioned in the Draft Code also. The
wording of the relevant provision has been improved slightly as compared to
the IT Act:
" 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]
What are the implications of these disclosure provisions?:
There is no reference to the RTI Act anywhere in the Draft Code. If this
Draft Code becomes law access to all tax-related information (and not merely
IT returns) may be accessible only under this Code as it will be treated as
a law passed later in date to the RTI Act. This means:
a) any tax-related information may not be accessible under the RTI Act at
all;
b) the simple fee rules and specific time limits of the RTI Act may not be
applicable to information requests made under the Code;
c) there may not be any time limit for disposal of access requests unless
explicitly provided for in the Rules to be formulated after the Code is
enacted;
d) the appeals and complaints procedures of the RTI Act may not be available
to an applicant who has been denied information under the Code;
e) the decision of the authorities regards refusal of access cannot be
challenged in any court of law; and
f) the penalty and compensation procedures under the RTI Act may not be
available to act as a deterrent against wrongful denial of information under
the Code.
In short the RTI Act will be stunted as far as its outreach to the tax
administration in the country is concerned.
RTI Act is adequate for protecting the confidentiality of assessee-related
information:
The Draft Code and the discussion paper attached to the Draft Code betray a
lack of understanding of the protection provided by the RTI Act to
assessee-related information. Section 8(1)(d) and 8(1)(j) of the RTI Act are
adequate protection for maintaining the confidentiality of the information
relating to individual and corporate assessees. Both provisions contain
public interest overrides individually and are also subject to the
overarching public interest override under section 8(2). There is no reason
why the Draft Code should supplant the RTI Act with a completely different
access regime and one that is weak with no scope for redress.
Why is it important to maintain the supremacy of the RTI Act?
The IT Act in the present and the Draft Code in future seek to regulate
tax-related affairs. Regulating tax-related matters is an essential part of
the overall administrative regime established in the country. The RTI Act
seeks to engender a regime of transparency throughout the country and create
an informed citizenry so that the people may hold the State and its
instrumentalities accountable. In other words, this law establishes
transparency and openness as the overarching philosophy of the
administration at all levels thereby replacing the regime of secrecy that
had developed under the Official Secrets Act since colonial times. There is
no justifiable reason why the Income Tax administration should be kept
outside the purview of this regime of transparency. The RTI Act overrides
all other laws to the extent of inconsistency. There is no good reason why
newer laws meant to regulate the affairs of citizens vis-a-vis the State
should strive to remain outside its ambit. The Draft Code should contain a
clause stating that all information may be provided in accordance with the
provisions of the RTI Act and all contrarian clauses should be deleted. This
can take care of any ambiguity that may arise regards the interaction
between the provisions of the RTI Act and the Draft Code after its
enactment.
What can we do to make this happen?:
All of us interested in ensuring that the regime of transparency established
by the RTI Act remains supreme must send our submissions to the Ministry of
Finance against this attempt to stunt the RTI Act. The easiest way is to
visit the webpage of the Ministry and post our submission regards RTI. A
sample submission is provided below for your use.
Sample Submission:
"Dear Mr. Finance Minister,
I/We* am/are* (a) citizen(s)* of India vested with the fundamental right to
seek and obtain information from government and its agencies. The Right to
Information Act (RTI Act) passed by Parliament in 2005 gives effect to this
fundamental right and establishes a regime of transparency covering all
levels of government. This law establishes openness and disclosure as the
norm of governance. Secrecy is permitted only in a few exceptional
circumstances. The RTI Act overrides all other laws to the extent of
inconsistency. Indeed this position of supremacy granted to the RTI Act must
be preserved and not whittled away bit by bit. That would defeat the very
purpose of the RTI Act.
The Draft Direct Taxes Code, 2009 (Draft Code) has been placed on the
website of your Ministry for public consultation. I/We* congratulate your
government for seeking people's views about its provisions.
I/We* strongly believe that the Draft Code must be brought in line with the
transparency regime established by the RTI Act. I/We* recommend that
sub-sections (5) and (6) of section 146 be deleted and the existing
sub-section (4) of this section be substituted with the following:
"(4) Any information relating to any assessee received or obtained by any
income-tax authority in the performance of his or her functions under this
Code may be furnished to any person in accordance with the provisions of the
Right to Information Act. (No. 22 of 2005)".
Thanking you,
Yours sincerely,
(Name of the person submitting)
NO AMENDMENTS - LEAVE OUR RTI ACT ALONE
(*please delete whichever is inapplicable)"
How do I upload my submission?:
Please follow the following procedure:
1) In order to access the submission template click on:
http://finmin.nic.in/DTCode/query.asp (If this does not work, please copy
and paste the URL in the address box of your browser)
2) Do not forget to enter your name, address and email id - these are
compulsory fields. Your submission may not be accepted if you do not give
these details.
3) Under the field 'Section of the Code' type in '146'.
4) Copy and paste the above mentioned sample submission in the 'Post your
comments' box. Alternately you may paste a submission in your own words.
5) Please enter the alphanumeric captcha code in the next box. If you see
capital letters then please use caps lock before keying them in.
6) If you have satisfactorily completed all these steps then click 'submit'.
If nothing works, just email your submission to the Minister for Finance at:
[email protected]
Can I send my submission in hard copy?
Of course you may send your submission in hard copy. Please write/copy the
sample submission on a post card or on a sheet of paper and post/courier to:
Shri Pranab Mukehrji
Hon'ble Minister for Finance
Ministry of Finance
Government of India
North Block
New Delhi - 110 001
Please remember to send your submissions by tomorrow (30th September, 2009)
latest.
In order to access our previous email alerts please click on:
http://www.humanrightsinitiative.org/programs/ai/rti/india/national.htm You
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:
[email protected]
[Non-text portions of this message have been removed]
[Non-text portions of this message have been removed]
